Cases

Question 1

Barcelona Traction Case

Answer 1

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.

Question 2

Kosovo Opinion

Answer 2

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

Question 3

W Sahara Advisory Opinion

Answer 3

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

Question 4

Reparations for Injuries Advisory Opinion - week 1

Answer 4

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

Question 5

Lotus case

Answer 5

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.

Question 6

North Sea Continental Shelf Case

Answer 6

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

Question 7

Nuclear Tests

Answer 7

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

Question 8

Nicaragua

Answer 8

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



Question 9

Legality of the Threat or Use of Nuclear Weapons - CIL

Answer 9

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.

Question 10

Qatar v Bahrain

Answer 10

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.

Question 11

Gabcikovo-Nagymaros project - treaties

Answer 11

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.

Question 12

Belilos

Answer 12

Difference interpretative declaration and reservation

An international court or other parties to the treaty can declare a reservation is impermissible

Question 13

Principles of criminal jurisdiction

Answer 13

Territorial (objective + subjective), flag state, active personality, passive personality, protective, universality

Question 14

Italy v Germany

Answer 14

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

Question 15

Diplomatic Staff in Tehran

Answer 15

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. 

Question 16

Arrest Warrant

Answer 16

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

Question 17

Al-Adsani v UK

Answer 17

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.

Question 18

HRC General Comment 13

Answer 18

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

Question 19

Wall Opinion - HR

Answer 19

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)

Question 20

Al-Skeini v UK

Answer 20

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

Question 21

Ruggie Principles

Answer 21

Corporations have the responsibility to merely respect human rights, not necessarily to protect them like states.

Question 22

Nuclear Weapons Opinion - HR

Answer 22

In terms of armed conflict, international humanitarian law and not human rights should be used, because it is Lex specialis.

Question 23

Maritime Delimitation

Answer 23

3 stage test for delimitation

Question 24

Nuclear Weapons Opinion - IOs

Answer 24

Principle of speciality, express and implied powers

Question 25

Reparation for Injuries Opinion - IOs

Answer 25

Implied powers

Question 26

Diplomatic Staff in Tehran - state responsibility

Answer 26

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

Question 27

Nicaragua - state responsibility

Answer 27

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

Question 28

Gabcikovo - Nagymaros - state responsibility

Answer 28

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)

Question 29

Genocide case

Answer 29

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

Question 30

Rainbow Warrior

Answer 30

Distress can only be accepted in cases of threat to life

Question 31

Nuclear Disarments

Answer 31

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

Question 32

Corfu Channel

Answer 32

Forum Prorogatum ICJ

Question 33

Nicaragua - use of force

Answer 33

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

Question 34

Oil Platforms

Answer 34

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

Question 35

Congo v Uganda

Answer 35

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

Question 36

Tadic - IHL

Answer 36

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).

Question 37

Basic principles of IHL

Answer 37

Of military necessity and of distinction

Question 38

Legality of the Use of Nuclear Weapons Opinion - IHL

Answer 38

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

Question 39

Blaskic

Answer 39

The ICTY can issue orders binding upon sovereign states

Question 40

Norwegian Fisheries

Answer 40

If a state persistently objects to a rule of CIL while it is in formation, then it will not be bound by it.

Question 41

Quebec

Answer 41

External v internal self-determination

Right to rmedial secession only in extreme cases

The parent state is allowed to act militarily as well