Cases Flashcards
Barcelona Traction Case
The development of jus cogens and of obligations erga omnes for all states; The idea that states all some duties and obligations towards the international community as a whole with regards to certain crimes such as war crimes, the crime of genocide, crimes against humanity, HR, and the crime of aggression.
Kosovo Opinion
International law does not prohibit any decision of a state in formation to adopt a Declaration of Independence. however, the questions relating to the right of self-determination and existence of any right of remedial secession concern the right to separate from a state, so not answered yet
W Sahara Advisory Opinion
The right of self-determination is crucial within the context of decolonisation which must be brought to a speedy end.
the right of self-determination must be interpreted as reflecting the free will of the people concerned.
non-self-governing territory has the right to claim independence or associate itself with an independent state but this association must be proven to reflect the will of the people
Reparations for Injuries Advisory Opinion - week 1
The subjects of law in any legal system are not necessarily identical in their nature or in the extent of the rights
the development of international law has brought about the introduction of multiple other actors besides states in the international scene
Lotus case
Consensualism, voluntarism, territorial sovereignty of states.
The jurisdiction of states emanates from their sovereignty
Restrictions on the independence of a state cannot be presumed. States can act as they like as long as they don’t breach any prohibitive rule of international law
Omissions of states are generally insufficient for evidence of CIL, but might be if opinio juris
If a state claims that another state has breached an obligation under international law or that it doesn’t have jurisdiction, the claiming state has the duty to prove the breach; it has the burden of proof.
North Sea Continental Shelf Case
Elements of CIL
The principle of equidistance is part of customary international law (?)
Alright participation in a convention can be evidence of state practice in
customary international law especially when it comes to specially affected states
When there is a short period of time for the custom the state practice must be both extensive and virtually uniform and must reflect opinio juris
Where the principle of equidistance cannot be applied in a just manner the limitation must be made based on equitable principles
The right to jurisdiction over a coastal state’s continental shelf is inherent
Nuclear Tests
Unilateral declarations as source of IL
Declarations made by way of unilateral acts can have a binding legal effect upon the state if the intention of the state was that it should become bound to it
The form is irrelevant
Other states can rely on the declaration and bring cases based on it if not respected, due to pacta sunt servanda
Nicaragua
The prohibition on the use of force end of intervention into another state territory are binding as part of customary international law
The practice of state does not have to be completely consistent for it to be valid. It should be generally consistent with the rule
Inconsistent conduct of some states should not be treated as indications of the emergence of a new rule but as breaches of the rule of CIL

Legality of the Threat or Use of Nuclear Weapons - CIL
The prohibition on the use of nuclear weapons is not part of customary international law due to the lack of opinio juris.
THE General assembly resolutions that have been adopted on the matter were adopted with a very high number of negative votes, while the General assembly’s conduct itself indicates that there is no such rule in CIL.
Qatar v Bahrain
A treaty can have any form, even that of minutes and exchange of letter, if they create legal obligations to which the parties have consented to.
If they have signed them, no state representative can say that its intention was otherwise, or that their intention prevails.
Gabcikovo-Nagymaros project - treaties
Denunciation/suspension of a treaty
State of necessity doesn’t lead to a respect of obligations; the obligations were breached anyways; necessity refers to state responsibility; the only grounds for treaty termination are in VCLT
Provisions in VCLT on treaty termination are CIL
Impossibility of performance can’t be invoked if the party invoking it caused it
Fundamental change of circumstances must have been unforeseen.
Material breach also not applicable, because the other party didn’t act unlawfully.
P. 110.
Belilos
Difference interpretative declaration and reservation
An international court or other parties to the treaty can declare a reservation is impermissible
Principles of criminal jurisdiction
Territorial (objective + subjective), flag state, active personality, passive personality, protective, universality
Italy v Germany
Case on immunity of state, which can only be derived from CIL presently
Immunity is CIL because sovereign equality of states
Even though international law recognises an exception to state immunity when it comes to torts within the territory of another state by the breaching state (territorial tort exception), when it comes to the armed forces of a state committing international crimes within the territory of another state the exception doesn’t apply (because acta jure imperii).
There is a difference between state immunity (which is a procedural rule) and a violation by a state of a rule of international law (which is a substantive rule). If a state has immunity, this doesn’t mean that the state did not breach an obligation under international law
Difference acta jure gestionis and acta jure imperii
There’s no CIL for exception to state immunity in case of HR violations or violations of the law of armed conflict
Diplomatic Staff in Tehran
Case on VDCR
Rules on diplomatic immunity are a self-contained regime (both rights and obligations for them) + remedies for the receiving state
Part of CIL
No countermeasures can be taken against their immunity
Special duty of the receiving state to protect the premises, archives, documents and the persons of diplomatic staff and mission which are inviolable. 
Arrest Warrant
Personal immunity for head of state, of government, and minister of foreign affairs.
Because they represent the state
Immunity applicable even in case of war crimes or crimes against humanity
Difference immunity (procedural law) and criminal jurisdiction (substantive law)
The methods to punish such persons
Even if a warrant isn’t enforced, it’s mere issue is a breach of IL; this applies also to its mere circulation, even if no effects on the person
Al-Adsani v UK
Breach of article 3 or article 6 ECHR does not lift state immunity and state in unity is considered to be a legitimate aim limiting the articles in ECHR.
HRC General Comment 13
The ICCPR is applicable to anyone within the power and effective control of a state party even if the person is not found within the territory of the state party
Wall Opinion - HR
In times of war, derogations might be possible but only from derogate rights (Reference to Nuclear Weapons);
In times of armed conflict, the court should try to apply both IHL and HR law.
While jurisdiction of state is primarily territorial it may be exercised outside of the national territory
The ICCPR applicable to the act of the state done in the exercise of its jurisdiction
The rides comprised in ICSEC are primarily territorial. However, they might also apply when a state exercises effective territorial jurisdiction (over a land)
Al-Skeini v UK
The state has to be exercising effective control over the territory in order to be responsible for breaches of human rights, when it is outside its territory
This applies even in cases of armed occupation
Ruggie Principles
Corporations have the responsibility to merely respect human rights, not necessarily to protect them like states.
Nuclear Weapons Opinion - HR
In terms of armed conflict, international humanitarian law and not human rights should be used, because it is Lex specialis.
Maritime Delimitation
3 stage test for delimitation
Nuclear Weapons Opinion - IOs
Principle of speciality, express and implied powers
Reparation for Injuries Opinion - IOs
Implied powers
Diplomatic Staff in Tehran - state responsibility
Duty to protect premises, diplomatic agents, etc.
Example of responsibility incurred through omission/inaction
Example of the state acknowledging and recognising the actions of private individuals as its’ own. The militants thus became agents of state, even though they weren’t initially
Nicaragua - state responsibility
The US had to have effective control over the military and paramilitary operations for international responsibility to be incurred.
Partial dependency, or complete dependency only at a time of the State’s support is insufficient
Gabcikovo - Nagymaros - state responsibility
Necessity is CIL
the conditions of necessity are cumulative.
Protection of natural environment can be ground of necessity, but peril needs to be imminent ( = certain and immediate) + must not have been brought about by the state claiming it
Conditions lawful countermeasures
Countermeasures can only be taken by the injured state(s)
Countermeasures can never be punitive
Countermeasures must be proportionate (here, they weren’t)
Genocide case
Need of complete dependence and lacking any real autonomy of groups/entities to be considered state organs even though they’re not seen as such under the internal law of the state; also they must act on behalf of the state
If a group is found to be acting under the control of a state then that group will not be considered as part of the organs of the state.
In order for a group to be found as acting under the control of a state it must be proven that it was acting in accordance with that states instructions or under its effective control
The overall requirement found in the Tadic case is not recognised
Due diligence obligation of state ( here, in relation to genocide)
 The respondent state was found responsible for failing to implement measures preventing the genocide even though the acts of the people committing genocide were not attributed to the respondent state
Rainbow Warrior
Distress can only be accepted in cases of threat to life
Nuclear Disarments
In order for a dispute to exist, the other party to the dispute must be aware of the claim of the first party and of the existence of said dispute
Corfu Channel
Forum Prorogatum ICJ
Nicaragua - use of force
Treaty obligations on the use of force is codified in CIL as well
you don’t have to notify the self-defence to the UNSC, but then it will be seen as the state itself using self-defence” didn’t believe that it did so lawfully. Also, a state has to declare itself under attack before invoking self-defence.
Not all uses of force are armed attacks; you need to distinguish between the most grave forms of use of force which are armed attacks and other less serious forms
A state might be able to invoke the defence against private actors if it can prove a link between the actors and the injury suffered
A state claiming self defence must first declare that it is the victim of an armed attack and in order to receive lawful collective support it must also request the other member states of the UN to support it in its self defence
The use of self defence must be necessary and proportional
Oil Platforms
the mining of single military vessel could constitute an armed attack
Burden of proof for claiming against non-state actors = A link between the attacks and the counter attacks constituting self defence has to be proven
Congo v Uganda
Congo did not send the armed forces and was not involved in the occurrence of the attack so Uganda could not claim self defence against Congo 
However Ganda by breached the principle of non-intervention and the prohibition on the use of force in Congo’s territory, since no right of self defence was found for Uganda
Under CIL, territory is considered to be occupied when it is actually placed under the authority of the hostile army
Since Uganda was the occupying power on a part of the Congo territory it had the obligation to restore and ensure public order and safety in that area and also to secure respect for international human rights law and international humanitarian law
Tadic - IHL
The Geneva Conventions apply whenever there is use of armed force between states.
An armed conflict exist both between states or between governmental authorities and organised armed groups or between such groups within a state (if the violence is protracted/long lasting).
Basic principles of IHL
Of military necessity and of distinction
Legality of the Use of Nuclear Weapons Opinion - IHL
Hague law and Geneva law form a system which is named international humanitarian law
The cardinal principles of international humanitarian law. They are both part of CIL and of jus cogens.
The second cardinal principles of international humanitarian law definitely applies to all weapons including nuclear weapons
However the court was unable to say whether nuclear weapons are in accordance or in conflict with the rules on international humanitarian law
Blaskic
The ICTY can issue orders binding upon sovereign states
Norwegian Fisheries
If a state persistently objects to a rule of CIL while it is in formation, then it will not be bound by it.
Quebec
External v internal self-determination
Right to rmedial secession only in extreme cases
The parent state is allowed to act militarily as well
