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PIL CASE BRIEFS

Customary International Law
S.S. Lotus (France v. Turkey)
Facts:
Collision between French and Turkish ships on the high seas - killed Turkish nationals on the
Turkish vessel - Turkey prosecuted and sentenced a French national - France protested, demanded
the release - both referred the matter to PCIJ
Issue:
Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime
committed by a French national, outside Turkey?
Held:
• Opinio Juris is reflected not only in acts of States (Nicaragua Case), but also in omissions when
those omissions are made following a belief that the said State is obligated by law to refrain
from acting in a particular way.
• Even if consistent state practise, must show opinion juris
• Merely shows that States had often, in practice, abstained from instituting criminal proceedings,
and not that they recognised themselves as being obliged to do so - no sense of duty to abstain.
• Jurisdiction is territorial - A State cannot exercise its jurisdiction outside its territory unless an
international treaty or customary law permits it to do so.
• Within its territory, a State may exercise its jurisdiction, in any matter, even if there is no
specific rule of international law permitting it to do so - a wide measure of discretion - only
limited by the prohibitive rules of international law.
• A ship in the high seas is assimilated to the territory of the flag State.
• A State would have territorial jurisdiction, even if the crime was committed outside its territory,
so long as a constitutive element (the element of the crime and the actual crime are entirely
inseparable) of the crime was committed in that State - subjective territorial jurisdiction.

North Sea Continental Shelf Cases

Facts:
Netherlands and Denmark had drawn partial boundary lines based on the equidistance principle -
further prolongation of the boundary proved difficult because Denmark and Netherlands wanted this
prolongation to take place based on the equidistance principle where as Germany was of the view
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that, together, these two boundaries would produce an inequitable result for her, owing to its
concave coastline - principles of delimitation.
Issues:
Is Germany under a legal obligation to accept the equidistance-special circumstances principle,
contained in Article 6 of the Geneva Convention on the Continental Shelf of 1958 (signed but not
ratified by Germany), either as a customary international law rule or on the basis of the Geneva
Convention?
Held:
• A very definite very consistent course of conduct on the part of a State would allow the Court
to presume that the State had somehow become bound by a treaty.
• Germany had not unilaterally assumed obligations under the Convention. The court also took
notice of the fact that even if Germany ratified the treaty, she had the option of entering into a
reservation on Article 6.
• The Court held that no estoppel would apply against Germany.
• The mere fact that Germany may not have specifically objected to the equidistance principle as
contained in Article 6, is not sufficient to state that the principle is now binding upon it.
• The principle of equidistance, as contained in Article 6 did not form a part of existing or
emerging customary international law at the time of drafting the Convention - the hesitation
expressed by the drafters on the inclusion of Article 6 and the fact that reservations to Article 6
was permissible.
• For a customary rule to emerge:
• Very widespread and representative participation in the Convention, including States whose
interests were specially affected - not enough ratifications;
• Uniform and consistent practice;
• Undertaken in a manner that demonstrates a general recognition of the rule of law or legal
obligation - Opinio Juris;
• In the North Sea Continental Shelf cases the court held that the passage of a considerable period
of time was unnecessary (i.e. duration) for the formation of a customary law.
• Even if there were some State practice in favour of the equidistance principle, could not deduct
the necessary opinio juris. Both State Practice + Opinio Juris are essential pre-requisites.
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Principle of Erga Omnes

Barcelona Traction Case (Belgium v. Spain)
Facts:
The claim is presented by Belgian nationals (shareholders in the Barcelona Traction - company
incorporated under Canadian laws) for reparation for damage allegedly caused to these persons by
the conduct, said to be contrary to international law, of various organs of the Spanish State towards
that company and various other companies in the same group.
Issue:
Whether Belgium has a right to exercise diplomatic protection of Belgian shareholders in a
company which is a juristic entity incorporated in Canada, the measures complained of having been
taken in relation not to any Belgian national but to the company itself?
Held:
• When a State admits into its territory foreign investments or foreign nationals, it is bound to
extend to them the protection of the law and assumes obligations which are neither absolute nor
unqualified.
• Distinction should be drawn between the obligations of a State towards the international
community as a whole, and those arising vis-à-vis another State in the field of diplomatic
protection.
• In view of the importance of the rights involved, all States can be held to have a legal interest in
their protection, they are obligations erga omnes.
• Erga omnes - Some obligations in contemporary international law arise towards the international
community as a whole these are obligations inasmuch as all states have a legal interest in the
protection of the rights.
• The crystallisation of human rights thereby spawns parallel State rights. These parallel State
rights must not be confused with the original human rights.
• Jus cogens refers to the legal status that certain international crimes reach, and obligations erga
omnes pertains to the legal implications arising out of a certain crime’s characterisation as jus
cogens - The implications of jus cogens are those of a duty and not of optional rights; otherwise
jus cogens would not constitute a peremptory norm of international law.
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• The threshold question is whether such a jus cogens status places obligations erga omnes upon
states or merely gives them certain rights to proceed against perpetrators of such crimes.
• How to determine a preemptory norm?
• International pronouncements - recognition that these crimes are deemed part of general
customary law;
• language in preambles or other provisions of treaties - indicates these crimes’ higher status in
international law;
• large number of states which have ratified treaties related to these crimes; and
• the ad hoc international investigations and prosecutions of perpetrators of these crimes.
• certain crimes affect the interests of the world community as a whole because they threaten the
peace and security of humankind and because they shock the conscience of humanity. If both
elements are present in a given crime, it can be concluded that it is part of jus cogens.
• The erga omnes and jus cogens concepts are often presented as two sides of the same coin - The
term erga omnes means “flowing to all,” and so obligations deriving from jus cogens are
presumably erga omnes.
• Obligations the performance of which is the subject of diplomatic protection are not of the
same category (jus cogens).
• Two conditions:The first is that the defendant State has broken an obligation towards the
national State in respect of its nationals. The second is that only the party to whom an
international obligation is due can bring a claim in respect of its breach.

Existence of a Regional/Local Custom

Right of Passage Case (Portugal v. India)
Facts:
The case is concerning Right of Passage between the Portuguese territory of Daman and two parcels

of land territory surrounded by the territory of India and the passage between the two enclaves.

Portugal claimed that it had a right of passage to the extent necessary for the exercise of its
sovereignty and subject to the regulation and control of India - India had prevented it from
exercising that right.
Issues:
Does Portugal have a customary right over Indian territory to its enclaves?
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Held:
• Right of passage has been defined with sufficient precision to enable the Court to pass upon it.
• India tacitly recognised the Portuguese Sovereignty, achieving the characteristics of Portuguese
enclaves within India -during the British and Post British periods there had developed a passage
to the enclaves, the practice on which Portugal relies for establishing their right, formulated on
the basis of local custom.
• Local Custom - no reason why long, constant, uniform and continued practices between 2 States,
based on mutual rights and obligations was insufficient for local custom to arise.
• During the British and post British period armed forces and police did not pass between the
territories as a matter of right, but with previous authorisation - Goods, other than arms and
ammunitions, pass freely between Daman and the enclaves subject only to customs regulations
and control as per considerations of security or revenue.

Asylum case (Columbia v. Peru)

Facts:
Rebellion in Peru - American People’s Revolutionary Party’s head, Victor Torre was charged with
preparing and directing the rebellion - Columbian embassy granted him asylum also asked for a safe
conduct to be issued and stated that he was a political refugee.
Contentions:
• Colombia through the use of the
1. Bolivarian Agreement of 1911 on Extradition;
It did not contain principles on the right to unilateral qualification but recognised the institution of
asylum in accordance with the principles of international law.
2. Havana Convention of 1928 on Asylum, and;
Did not recognise the right of unilateral qualification. The Montevideo Convention had only been
ratified by 11 states in 1933 and 2 states in 1939.
3. Montevideo Convention of 1933 on Political Asylum and American International Law.
First to include a rule concerning the qualification of the offence in matters of diplomatic asylum.
The Columbian Government claimed that this Convention had actually codified principles which
were already a custom in the Latin American countries and therefore, could be enforced against
Peru. However Peru had not ratified this convention, only 13 states had.
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• stated that she was entitled to qualify the nature of the offence for the purposes of Asylum -
Unilateral Qualification.
• Through the use of these Treaties and Conventions, the Colombian Government sought to prove
that there existed a regional or local custom between the Latin American countries which was a
rule in constant and uniform usage practiced by these States.
Held:
• This custom should be a right appertaining to the State granting Asylum and a duty incumbent on
the territorial State - based on Article 38 (1) (b) international custom, as evidence of a general
practice accepted a law.
• 3 months had elapsed between the military rebellion and the granting the Asylum, there was no
reason to protect him for humanitarian considerations such as violence or danger from the
population.
• A Political offence was not a sufficient condition for granting of Asylum. Asylum could only
intervene against the action of justice in cases of arbitrary action instead of rule of law.
• The cases showed provided uncertainty, contradiction and discrepancy in the exercise of
diplomatic Asylum and further, there was rapid inconsistency in the acceptance and rejection
of conventions on asylums by various states - no uniform or constant custom for qualification.
• The Court therefore held that Colombia, as a State granting asylum is not competent to qualify the
offence by a unilateral and definitive decision.
• The standard of proof is higher in regional customs as opposed to general customs.

Legality of Threat of Use of Nuclear Weapons - Advisory Opinion

Applicable Law
• The Court considers that the question whether a particular loss of life, through the use of a certain
weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of
the International Covenant on Civil and Political Rights.
• The unique characteristics of nuclear weapons, their destructive capacity to cause untold human
suffering, and their ability to cause damage to generations to come.
• Use of force enshrined in the United Nations Charter and the law applicable in armed conflict
which regulates the conduct of hostilities, together with any specific treaties on nuclear weapons
that the Court might determine to be relevant.
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Provisions of the Charter relating to threat/use of force/NW

• The use of nuclear weapons can be regarded as specifically prohibited on the basis of certain
provisions of the Second Hague Declaration of 1899, the Regulations annexed to the Hague
Convention IV of 1907 or the 1925 Geneva Protocol.
• As to the treaties of Tlatelolco and Rarotonga and their Protocols, and also the declarations made
in connection with the indefinite extension of the Treaty on the Non-Proliferation of Nuclear
Weapons, it emerges from these instruments that:

• a number of States have undertaken not to use nuclear weapons in specific zones (Latin
America; the South Pacific) or against certain other States (non-nuclear-weapon States which
are parties to the Treaty on the Non-Proliferation of Nuclear Weapons);
• The nuclear-weapon States have reserved the right to use nuclear weapons in certain
circumstances; and
• these reservations met with no objection from the parties to the Tlatelolco or Rarotonga Treaties
or from the Security Council.
• Not having found a conventional rule of general scope, nor a customary rule specifically
proscribing the threat or use of nuclear weapons per se - whether illegal in the light of the
principles and rules of international humanitarian law applicable in armed conflict and of the law
of neutrality.
• Court is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of
the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its
very survival would be at stake.
• This twofold obligation to pursue and to conclude negotiations formally concerns the 182 States
parties to the Treaty on the Non-Proliferation of Nuclear Weapons, or, in other words, the vast
majority of the international community. Indeed, any realistic search for general and complete
disarmament, especially nuclear disarmament, necessitates the co-operation of all States.
• GA resolutions may not be binding but have normative value - it provides evidence for
establishing rule + opinion juris but no consistent state practise.

Norwegian Fisheries Case

Facts:
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Norway enacted a decree by which it reserved certain fishing grounds situated off its northern coast
for the exclusive use of its own fishermen. The question at issue was whether this decree, which
laid down a method for drawing the baselines from which the width of the Norwegian territorial
waters had to be calculated, was valid international law. The United Kingdom contended, inter alia,
that some of the baselines fixed by the decree did not accord with the general direction of the coast
and were not drawn in a reasonable manner.
Issues:
Held:
• The court dealt with this issue by observing that although the ten-mile rule was adopted by certain
states in their national law and treaties, other states did not adhere to this rule - did not acquire the
authority of a general rule of international law.
• Established a custom to be recognised as a law if some degree of uniformity amongst state
practices could be established - sufficient uniformity of behaviour.
• Actual practices of states did not justify the creation of such a custom.
• Persistent objector - they objected to the rule from its very inception - so they were immune from
the application of the rule - cannot be a subsequent objector

Paquete Habana Case

Facts:
Spanish American war - Spanish fisherman were arrested and their ships were ceased by the US.
Issues:
Whether fishing ships are exempted from being captured during war according to customary
international law?
Held:
• Even if states violated the exemption, it was perceived as a deviation from the dominant custom
and not as a creation of a new rule of customary international law.
• There was sufficient evidence showing constant and uniform state practise:
• In 1400, the French and English wings followed this exemption encapsulated in a treaty;
• Russia followed the same practise;
• English were not following the expedition but nothing to show that they were not supposed to
follow it;
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• Capturing the ships was in violation of customary international law.

Nicaragua v. USA
Facts:
Supporters of the former Somoza Government and former members of the National Guard opposed
the new government. The US – initially supportive of the new government changed its attitude
when, according the United States was providing logistical support and weapons to guerrillas in El
Salvador, the United States “decided to plan and undertake activated directed against Nicaragua”.
Rule:
Elements to prove Customary International Law:
Consistent and General International Practice by states or Material Facts – State Practice
A subjective acceptance of the practice or act of the state is mandated by law by the international
community – Opinio Juris
Issues:
Whether-or at least to what extent-each of these two elements must be established so as to
demonstrate that a restrictive rule of customary international law exists?
Held:
• Both the subjective element (opinio juris) and the objective element (State practice) as essential.
• State Practise:
• It is not necessary to have complete consistency in State practice in respect of the rule.
• Inconsistent State practice does not affect the formation or existence of a customary principle so
long as the inconsistence is justified as a breach of the rule and not a new rule.
• However, reliance by a State on a novel right or an unprecedented exception to the principle
might, if shared in principle by other States, tend towards a modification of customary
international law - depends on the nature of the ground offered as justification.
• Opinio Juris:
• The attitude of States towards certain General Assembly resolutions (criticised because voting
often depends on policy considerations and not law)
• Statements by State representatives
• Obligations undertaken by States in international forums
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• The International Law Commission’s findings that a concept amounts to a customary law
principle.
• Multilateral conventions
• Breach of the customary principle of non-intervention will also, if they directly or indirectly
involve the use of force, constitute a breach of the principle of non-use of force in international
relations.

Declarations and Reservations

Belilos v. Switzerland
Facts:
An application against Switzerland, by Belilos, a Swiss citizen, alleging a breach of Article 6,
paragraph 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms
(principle of fair trial) - Switzerland had modified, by its declaration, the right to a fair trial
enshrined in Article 6
Issues:
Whether the declaration was indeed to be regarded as a reservation; and;
If so, whether it had been validly made for the purposes of Article 64 of the Convention?
Held:
• It is a reservation - nomenclature does not matter, look at the substantive character i.e. beyond the
mere title.
• Looked at the intention of the drafters - concerned to avoid the consequences which a broad view
of the right of access to the courts would have for the system of public administration.
• Does not matter whether Switzerland’s reservations and interpretative declarations went through
identical processes or Secretary General of the Council of Europe and the States Parties to the
Convention did not react.
• Article 64 requires two things for a reservation to be valid-
• i) it should not be of a general character, and;
• ii) should contain a brief statement of the law concerned.
• The first condition is not met as the declaration itself does not make it possible for the scope of
the undertaking by Switzerland to be ascertained exactly, in particular as to which categories of
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dispute are included - the preparatory documents does not matter, the reservation itself should
have been specific not general.
• Rejected the Government’s argument that including the laws would have entailed a lot of practical
difficulties - could not justify the failure to comply with paragraph 2 of Article 64 (whose purpose
s to provide a guarantee - in particular for the other Contracting Parties and the Convention
institutions - that a reservation does not go beyond the provisions expressly excluded by the State
concerned).
• The reservation is invalid as it did not satisfy the requirements of Article 64.

Reservations to the Genocide Convention

Facts:
Issues:
Can the reserving State be regarded as being a party to the Convention while still maintaining its
reservation if the reservation is objected to by one or more of the parties to the Convention but not
by others?
If the answer to question I is in the affirmative, what is the effect of the reservation as between the
reserving State and:
(a) The parties which object to the reservation?
(b) Those which accept it?
What would be the legal effect as regards the answer to question I if an objection to a reservation is
made:
(a) By a signatory which has not yet ratified?
(b) By a State entitled to sign or accede but which has not yet done so?
Held:
• Multilateral Convention is the result of an agreement freely concluded.
• Traditional rule under Article 20.1 - no reservation was valid unless it was accepted by all
contracting parties.
• In the absence of an article in the Convention providing for reservations, one cannot infer that
they are prohibited.
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• In the absence of any express provisions on the subject, to determine the possibility of making
reservations, one must consider their character, their purpose, their provisions, their mode of
preparation and adoption.
• The preparation shows that an undertaking was reached to make reservations and that it is
permitted to conclude therefrom that States, becoming parties to the Convention, gave their assent
thereto.
• Intended that the Convention would be universal in scope. The contracting States do not have any
individual interests of their own, but merely a common interest.
• Object And Purpose - that as many States as possible should participate. This purpose would be
defeated if an objection to a minor reservation should produce complete exclusion from the
Convention.
• It follows that the...object and the purpose of the Convention is the criterion to determine the
attitude of the State which makes the reservation and of the State which objects - depends upon
the circumstances of each individual case.
• No State can be bound by a reservation to which it has not consented - will or will not consider
the reserving State to be a party to the Convention (limit being the object and purpose)
• Ordinarily, assent will only affect the relationship between the two States. But certain parties
might consider the assent as incompatible with the purpose of the Convention, and might wish to
settle the dispute either by special agreement or by the procedure laid down in the Convention
itself.
• The common duty of the contracting States to be guided in their judgment by the compatibility or
incompatibility of the reservation with the object and purpose of the Convention.
• Concerning the effect of an objection made by a State entitled to sign and ratify but which had not
yet done so - no legal effect.
• State which has signed but has not yet ratified - taken certain steps necessary for the exercise of
the right of being a party. This provisional status confers upon them a right to formulate as a
precautionary measure objections which have themselves a provisional character. If signature is
followed by ratification, the objection becomes final. Otherwise, it disappears. Therefore, the
objection does not have an immediate legal effect but expresses and proclaims the attitude of each
signatory State on becoming a party
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• State which has made and maintained a reservation which has been objected to by one or more of
the parties to the Convention but not by others, can be regarded as being a party to the
Convention if the reservation is compatible with the object and purpose of the Convention;
otherwise, that State cannot be regarded as being a party to the Convention.
• If a party to the Convention objects to a reservation which it considers to be incompatible with the
object and purpose of the Convention, it can in fact consider that the reserving State is not a party
to the Convention;
• If, on the other hand, a party accept the reservation as being compatible with the object and
purpose of the Convention, it can in fact consider that the reserving State is a party to the
Convention.

Rawls Kennedy v. Trinidad & Tobago

Facts:
Author claimed violation of several articles of the ICCPR - Reservation entered into to the Optional
Protocol by the State.
Rule:
Article 2(1)(d) of the VCLT - A reservation is a unilateral statement that purports to exclude or to
modify the legal effect of certain provisions.
Article 19 of the VCLT - permissible unless the treaty itself prohibits it or the reservation is
incompatible with the object and purpose of the treaty.
Held:
• The treaty body to interpret and determine the validity of reservations made to these treaties.
• Article 19 of the VCLT + customary international law, reservations can be made, as long as they
are compatible with the object and purpose of the treaty in question.
• A reservation cannot be made to the Covenant through the vehicle of the Optional Protocol.
• Object and purpose of the first Optional Protocol is to allow the rights under the covenant to be
tested before the Committee, a reservation that seeks to preclude this would be contrary to object
and purpose of the first Optional Protocol, even if not of the Covenant.
• The present reservation purports to exclude entire Covenant for one particular group of
complainants, namely prisoners under sentence of death - - this constitutes a discrimination which
runs counter to some of the basic principles embodied in the Covenant and its Protocols.
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Jurisdiction
Nottebohm Case (Liechtenstein v. Guatemala)
Effective Nationality
Facts:
Nottebohm born in Germany. Lived in Guatemala since 1903 and conducted business there but
never became a citizen. In 1939, became a citizen of Liechtenstein (application approved even
though the requirement was of residence for at least 3 years). Tried to re-enter in Guatemala in 1943
but refused. Guatemala sought to confiscate certain lands he owned due to his possible connections
with the enemy state. Liechtenstein offered him protection against the govt of Guatemala in the ICJ.
However, the govt of Guatemala argued that he did not gain Liechtenstein citizenship for the
purpose of IL.

Issue:
Whether the conferment of the Liechtenstein citizenship is not contrary to IL and if Liechtenstein’s
claim on behalf of Nottebohm is admissible in court?

Held:
• The court agreed with Guatemala and held that claims by Lichtenstein were inadmissible.
• The Court upheld the principle of effective nationality (national must prove a meaningful
connection to the state in question). The invocation is on the basis of the admissibility of the
application by Liechtenstein.
• Real and effective nationality – nationality shall be accorded with the facts that based on strong
factual ties between the person and the state.
• Different factors are taken into consideration, and their importance will vary from one case to the
next: the habitual residence of the individual concerned is an important factor, but there are other
factors such as the centre of his interests, his family ties, his participation in public life,
attachment shown by him for a given country and inculcated in his children, etc.
• International law leaves it to each State to lay down the rules governing the grant of its own
nationality. But, on the other hand, a State cannot claim that the rules it has laid down are entitled
to recognition by another State unless it has acted in conformity with this general aim of making
the nationality granted accord with an effective link between the State and the individual.
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SS Lotus (France v. Turkey)

Subjective Territorial Jurisdiction
Held:
• The first principle of the Lotus case said that jurisdiction is territorial: A State cannot exercise its
jurisdiction outside its territory unless an international treaty or customary law permits it to do so.
This is what we called the first Lotus Principle.
• The second principle of the Lotus case: Within its territory, a State may exercise its jurisdiction,
on any matter, even if there is no specific rule of international law permitting it to do so. In these
instances, States have a wide measure of discretion, which is only limited by the prohibitive rules
of international law.
• Turkey and France both have jurisdiction in respect of the whole incident: i.e. there is concurrent
jurisdiction.
• The PCIJ held that a ship in the high seas is assimilated to the territory of the flag State. This State
may exercise its jurisdiction over the ship, in the same way as it exercises its jurisdiction over its
land, to the exclusion of all other States. In this case, the Court equated the Turkish vessel to
Turkish territory - the offence produced its effects on the Turkish vessel and consequently in a
place assimilated to Turkish territory in which the application of Turkish criminal law cannot be
challenged, even in regard to offences committed there by foreigners.
• State would have territorial jurisdiction, even if the crime was committed outside its territory, so
long as a constitutive element of the crime was committed in that State.
• In order for subjective territorial jurisdiction to be established, one must prove that the element
of the crime and the actual crime are entirely inseparable; i.e., if the constituent element was
absent – the crime would not have happened.

Lockerbie (US v Libya)

UNSC v. Treaty
Facts:
An airplane exploded over Scotland, killing Americans - The US and UK traced bomb attack to
Libyans - The Libyans refused to extradite the Libyans for trial - Libya argued that under the
Montreal Convention, Libya could either extradite or prosecute the suspects themselves - Libya
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chose to prosecute the suspects themselves - The United States and the UK accused the Libyans of
"Forum Shopping" and took the case to the United Nations Security Council (UNSC) - UNSC
issued two resolutions (UNSC Resolutions 731/748). These urged Libya to hand over the bombing
suspects - UNSC also embargoes arms sales to Libya, told member states to close offices of the
Libyan Airlines

Held:
• Article 39 allows the UNSC to take enforcement actions to restore international peace. You could
argue that international terrorism is a breach of the peace. But how could you say that Libya's
exercising their rights under a multilateral treaty is a threat to the peace?
• Libya went to the International Court of Justice to protest the UNSC resolutions.

The I.C.J. found that the UNSC resolutions were permissible, and the Libya must hand over the
suspects.
• Basically, the I.C.J. found that UNSC resolutions trumped everything else, even multilateral
treaties.
• Article 103 of the United Nations Charter says, "In the event of a conflict between the obligations
of the Members of the United Nations under the present Charter and their obligations under any
other international agreement, their obligations under the present Charter shall prevail."
• Article 25 says that member States must follow UNSC resolutions.
• The I.C.J. does not perform Judicial Review of UNSC decisions. They are binding and not
reviewable.
• If UNSC decisions were reviewable, it would not give the same sense of finality that is required
for them to be acted upon.

AG v Adolf Eichmann
Universal Jurisdiction
Facts:
Adolf Eichman was an important Nazi war criminal who fled to Argentina after the war. In 1948
after the formation of Israel, Mossad (Israel intelligence agency) covertly arrested him in Argentina
1960 and took him to Israel to stand trial for war crimes. Argentina protested the violation of its
sovereignty by Israel. UNSC passed resolution 138 in 1960 which directed Israel to make
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reparations to Argentina for violating its sovereignty but allowing the trial of Eichmann. Both
countries agreed to terms of reparation. Eichmann’s trial opened on 11 April 1961 in Jerusalem,
with the indictment charging him with 15 counts of crimes against the Jewish people, crimes against
humanity, war crimes and membership in an organisation declared criminal by the International
Military Tribunal in Nuremberg 15 years earlier.

Held:
• The crimes in question were not crimes illegal in Israel alone, but they were grave offences which
went against the law of nations themselves. Holding that such crimes were of a universally
abhorrent nature, the Court held that Israel could exercise universal jurisdiction over Adolf
Eichmann.
• The ban on retroactivity of laws was not a general principle of international law and did not apply
in cases of grave crimes such as those committed by Eichmann.
• The nature of the crimes also justified the extraterritorial jurisdiction of Israel. As such, the
Eichmann trial is one of the first applications of the principle of universal jurisdiction for crimes
against humanity.

R v Bow Street Metropolitan Stipendiary Magistrate and Others (Pinochet)

Facts:
Torture, murder and the unexplained disappearance of individuals, all on a large scale - it is not
alleged that Senator Pinochet himself committed any of those acts, it is alleged that they were done
in pursuance of a conspiracy to which he was a party, at his instigation and with his knowledge -
None of the conduct alleged was committed by or against citizens of the United Kingdom - Formal
Extradition request from Spain

Issue:
Whether or not the definition of an "extradition crime" in the Act of 1989 requires the conduct to be
criminal under U.K. law at the date of commission or only at the date of extradition?

Rule:
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Extradition Act, 1989 Principle of Double Criminality- Act to be a crime under both UK and Spain
for extradition.

Rasul v Bush
Held:
• Courts have jurisdiction to hear habeas corpus petitions filed on behalf of foreign nationals
imprisoned at the Guantánamo Bay detention camp on the U.S. naval base at Guantánamo Bay,
Cuba, because the base, which the United States has held under lease from Cuba since 1899, was
effectively within U.S. territory. The implication of the decision was that hundreds of foreign
nationals held at the camp had a legal right to challenge their imprisonment.
• Although Cuba retains “ultimate sovereignty,” the “plenary and exclusive” jurisdiction exercised
by the United States over the territory of the Guantánamo Bay naval base was sufficient to
guarantee habeas corpus rights to foreign nationals held there.

US v. Yunis
Passive Personality
Facts:
Yunis and several accomplices hijacked a Jordanian airliner while it was on the ground in Beirut.
The only connection between the whole event and the United States was that several Americans
were on board the whole time. Yunis was indicted for violating the Hostage Taking Act - he moved
to dismiss on grounds of jurisdiction.

Held:
• The Nationality jurisdiction also extends to passive personality where a state may assert
jurisdiction over a non-national for acts taking place elsewhere if he/she injures nationals of the
state.
• An American court could have jurisdiction over the hijackers of a plane since some of the victims
in the plane were American citizens. Thus, the doctrine of passive personality was employed by
the US to exercise jurisdiction in this case.
• There must be jurisdiction under both international and domestic law in order for jurisdiction to
exist in the situation of this case.
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• International law recognises several bases for a nation to give extraterritorial application to its
laws. One is the “universal principle.” Some acts are considered to be so heinous and contrary to
civilisation that any court may assert jurisdiction. The universal principle applies because
numerous conventions condemn hijacking and hostage taking.
• The “passive personal principle” is also relevant, which applies to offences against a nation’s
citizens abroad. The United States has been slow to recognise this principle, but it is now
generally agreed upon.

International Legal Personality

Tinoco Arbitration case
Recognition of de facto state
Facts:
The Tinoco Regime overthrew the government of Costa Rica in a military coup in 1917 and
assumed de facto control.Tinoco regime was peaceful (no revolts) and was recognised as the
legitimate government (de jure) by some States, but not the plaintiff, Great Britain. After coming to
power, the Tinoco government created their own constitution and currency. The regime entered into
contract with British companies and British Banks which acquired their new currency. The Tinoco
regime fell apart in 1919, after which, the Costa Rican government (defendant) invalidated any
law or contract made by the Tinoco regime, and restored the old constitution and currency. Great
Britain brought a suit against Costa Rica to enforce the contracts made with erstwhile Tinoco
government and repay debt incurred by them of the new currency. The Costa Rican government is a
signatory of the treaty of arbitration - the case was considered by an Arbitrator, United States Chief
Justice William H. Taft.

Issue:
Held:
• A de facto government having completely taken the place of the regularly constituted authorities
in the state binds the nation - its international obligations are concerned, it represents the state.

• It succeeds to the debts of the regular government it has displaced and transmits its own
obligations to succeeding titular governments.
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• Its loans and contracts bind the state and the state is responsible for the governmental acts of the
de facto authorities - its treaties are valid obligations of the state.
• The evidence of the de facto status of the Tinoco’s regime was not outweighed by the evidence of
non-recognition - Non-recognition of the Tinoco government by other governments does not
invalidate the de facto status of the Tinoco government. Hence, the non-recognition of the Tinoco
regime by Great Britain did not dispute the de facto existence of that regime -
• Declaratory Theory of Recognition of States - That is, recognition does not make a State, or
unmake one. An entity is only a State if it meets certain factual criteria outlined in the Montevideo
Convention. Recognition is evidentiary, to be used in situation where there is uncertainty about
statehood. Recognition is also discretionary.
• The state does not cease to be an international legal person because its government is overthrown.
The recognition or non-recognition of a new administration is irrelevant to the legal character of
the country.
• Recognition of a state will affect its legal personality, whether by creating or acknowledging it,
while recognition of a government affects the status of the administrative authority, not the state.
• Recognition of the government implies recognition of the state, but it does not work the other
way.
• The principle of the continuity of state - state is bound by engagements
entered into by governments that have ceased to exist.
• States may change between forms of government without ceasing to be that
state in the eyes of international law, or in terms of its international obligations.
• There is no question of estoppel since the successor government had not been led by British non-
recognition to change its position.
• A new government is not obligated to conform to a previous constitution if the government has
established itself and maintains peaceful de facto administration with the acquiescence of the
people for a substantial period of time.

Luther v. Sagor
Facts:
This concerned the operations and produce of a timber factory in Russia owned by the plaintiffs,
which had been nationalised in 1919 by the Soviet government. In 1920 the defendant company
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purchased a quantity of wood from the USSR and the plaintiffs claimed this in England as their
property since it had come from what had been their factory. It was argued by them that the 1919
Soviet decree should be ignored before the English courts since the United Kingdom had not
recognised the Soviet government. The lower court agreed with this contention and the matter then
came to the Court of Appeal. In the meantime the UK recognised the Soviet government de facto
and the Foreign Office informed the Court of Appeal of this in writing.

Held:
• The result was that the higher court was bound to take note of the Soviet decree and accordingly
the plaintiffs lost their case, since a court must give effect to the legislation of a recognised state
or government.
• The Court also held that the fact that the Soviet government was recognised de facto and not de
jure did not affect the issue.

Reference Re Secession of Quebec

Self-Determination
Facts:
In 1976 new government was formed through majority – PQ In 1980 it held a referendum to vote to
negotiate sovereignty and new economic and political union with Canada. But 60% of the
population voted against it. Later a petition was filed by the federal government for patration in
the British parliament seeking for amendment to the Canadian constitution which necessitates only
consent from the Canadian parliament in order to make any amendments in its constitution.
Patration is a switch of amendment procedure to domestic. All of these change were opposed by
Quebec with regard to the adoption procedure - Quebec declared the Constitution as illegitimate as
it was made without the consent of the Quebec government - a bill was adopted which said that
upon future winning of votes the Quebec government plans on secession. The federal government
hence filed a reference in the Supreme Court of Canada seeking an opinion on the legality of
Quebec’s separation from the state of Canada.

Issues:
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Does international law (self-determination) or the Canadian Constitution give the National
Assembly, legislature or government of Quebec the right to effect the secession of Quebec from
Canada unilaterally?

Held:
• Court has the jurisdiction as the constitution says that the court can look into any legal question
which concerns the future of Canada - it was not answering a question of pure international law
but determining the legal rights and obligations of the government of Quebec which is under the
legal system of Canada;
• The Canadian Constitution does not allow the Quebec to go for secession – Federalism,
democracy, constitutionalism and the rule of law and constitutional principles.
• International law does not specifically grant component parts of sovereign states the legal right to
secede unilaterally from their parent state - does not specifically allow or deny secession of states
from its parent state.
• International laws such as the Charter of the UN, the ICCPR, ICESCR recognise the right of a
people to achieve self-determination or self-government (can be considered as a general principle
of international law), but only in certain circumstances; Quebec did not fall within any of these
circumstances.
• Residents of Quebec are not oppressed, colonized people nor are they denied meaningful access
to government - it has been very well represented in the Cabinet, the civil service and the courts.
• Being those under colonial rule or foreign occupation - based on the assumption that both are
inherently distinct from the colonisers and that their “territorial integrity” is destroyed by the
colonialist power.
• Subject to alien subjugation, domination or exploitation outside colonial context.
• When people is blocked from the meaningful exercise of its right to self-determination
internally can as a last resort exercise it by secession.
• Internal self-determination - that is a peoples pursuit of its political, economic, social and cultural
development within the framework of the existing state.
• International law places great importance on the territorial integrity of nation states - leaves the
creation of a new state to be determined by the domestic law of the existing state of which the
seceding entity presently forms a part.
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• Quebec could not unilaterally separate from Canada because it would violate both the Canadian
Constitution and international law.

ICJ Wall Opinion

Self-Determination
Facts:
The Secretary-General of the United Nations communicated to the ICJ the decision taken by the
United Nations General Assembly on resolution ES-10/14 the request for an advisory opinion.

Issue:
What are the 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, as
described in the report of the Secretary-General, considering the rules and principles of international
law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General
Assembly resolutions?

Held:
• The principle of self-determination entails that all people have the right to freely determine,
without external interference, their political status and to pursue their economic, social and
cultural development.
• Enshrined in the United Nations Charter and reaffirmed by the General Assembly in resolution
2625 - Every State has the duty to refrain from any forcible action which deprives peoples
referred to of their right to self-determination.”
• ICCPR and IESCR have reaffirmed the right of all peoples to self-determination - obligation to
promote the realisation of that right and to respect it, in conformity with the provisions of the
United Nations Charter.
• Self-determination is today a right erga ones - (East Timor (Portugal v. Australia), Judgement.
• The Court rejected Israel’s assertion that the wall is a temporary security barrier without any
political significance - could become permanent and would tantamount to de facto annexation.
• Article 49 of the Fourth Geneva Convention provides: "The Occupying Power shall not deport or
transfer parts of its own civilian population into the territory it occupies.” - wall’s route has been
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traced in such a way as to include within that area the great majority of the Israeli settlements in
the occupied Palestinian Territory.
• Risk of further alterations to the demographic composition of the Occupied Territory resulting - it
leads to a departure of the Palestinian population from certain areas.
• Impeded the liberty of movement of the inhabitants (ICCPR) and their exercise of the right to
work, to health, to education and to an adequate standard of living (ICESCR and Convention on
the Rights of the Child) - severely impedes the exercise by the Palestinian people of its right to
self-determination, and is a breach of Israel's obligation to respect that right.
• All States are under an obligation not to recognise the illegal situation and to not render aid or
assistance in maintaining the situation created by such construction.

International Law of the Unilateral Declaration of Independence in Respect of Kosovo

Facts:
A request for an advisory opinion referred to the International Court of Justice by the UN General
Assembly regarding the 2008 Kosovo declaration of independence. Kosovo declared independence
in 2008. USA, UK and majority of EU states recognised it, however, states such as Russia, Serbia,
Spain and Greece did not recognise it. The territory of Kosovo is the subject of a dispute between
Serbia and the Republic of Kosovo established by the declaration. This was the first case regarding
a unilateral declaration of independence to be brought before the court.

Held:
Did not violate general international law because it contains no 'prohibition on declarations of
independence nor did the adoption of the declaration of independence violate UN Security Council
Resolution 1244, since this did not describe Kosovo's final status, nor had the Security Council
reserved for itself the decision on final status.

Use of Force
The Caroline Affair (1837)
Facts: The Caroline Affair was a diplomatic crisis that involved the United States, Britain and the
Canadian Independence Movement. That time, Canada was under the control of the British and was
even called British North American - Canadian rebels fled to an island in the Niagara River, with
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support from nearby American citizens. An expedition of Canadian militia, under the authority of
Great Britain, crossed the Niagara River to the U.S. shore where the American steamer Caroline
was docked. The Caroline was a small steamer ship that transported supplies and arms to the
Canadian rebels. Canadian raiding party set the Caroline ablaze also killed an American crew
member - The U.S. side saw the raid as a flagrant, unprovoked attack against a neutral state. The
British and Canadian side justified it as necessary to deal with security threats that the United States
could not or would not deal with itself [The Caroline was a small ship that was used by Americans
in order to support Canadians rebelling agains the British.The Caroline, while in the US territory,
was boarded by armed British forces who burned the ship and sent it over the Niagara falls]

Relevance:
• Webster’s statement on behalf of the United States - a state must show “a necessity of self-
defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation” is
frequently invoked for the proposition that a state may use proportionate force in self-defence
against “imminent” threats. This principle came to be known as the ‘Caroline Test’ - legal
episode about anticipatory self-defence.
• Now is a legally binding custom because the ‘Caroline Test’ has been widely accepted as the state
practice + opinion juris.

Settlement of Disputes
Corfu Channel Case
Facts:
45 British officers and soldiers died - UK approached Sc and SC made a resolution to that effect -
UK instituted proceedings in the ICJ - Albania contended that the filing of the application with the
registrar was not in conformity with the recommendation of the SC.

Held:
• Principe of Forum Porogatum/tacit consent.
• Neither statue or rules require the consent to be expressed in a particular form.
• The court denied Albania’s inherent assumption that institution of proceedings by application is
only possible where compulsory jurisdiction exists but otherwise specific agreement is necessary.
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• SC resolution indicates the bringing of the case before the Court requires action on the part of the
parties, it does not specify that this action must be taken jointly.
• The reservation contained in the letter is intended only to maintain a principle and to prevent the
establishment of a precedent as regards the future.

The Republic of Nicaragua v. The United States of America

Facts:
The US – initially supportive of the new government – changed its attitude when, according to the
United States, it found that Nicaragua was providing logistical support and weapons to guerrillas in
El Salvador. Initial US support to these groups fighting against the Nicaraguan Government (called
“contras”) was covert. Later, the United States officially acknowledged its support. To establish
jurisdiction Nicaragua had to show that it is a "State accepting the same obligation" as the United
States within the meaning of Article 36 (accepting the compulsory jurisdiction of the Court made by
the United States and itself). It relied on a declaration made by it Pursuant to Article 36 (2) of
predecessor of the present Court. ICJ 36(5): Declarations made under Article 36 of the Statute of the
PCIJ and which are still in force shall be deemed, as between the parties to the present Statute, to be
acceptances of the compulsory jurisdiction of the ICJ. Since Nicaragua never ratified the Signature
Protocol they were never party to the treaty. However the declaration made by them was still valid
even though it did not have binding force.

Issue:
Whether a declaration which did not have binding force falls under the ambit of article 36 (5) of the
ICJ?

Held:
• The phrase “still in force” used in article 36 (5) of the ICJ does not exclude a valid declaration of
an unexpired duration made by a State not party to the statute of the PCIJ.
• The declaration was unconditional and for an unlimited period - retained potential effect the
moment it become a party to the UN Charter and the Rome Statute.
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• The court stated that with respect to transfer of powers from the PCIJ to the ICJ was made there
was great emphasis laid on continuity so as to not nullify the progress made towards adopting a
compulsory system.
• Nicaragua can be deemed to have given its consent to the transfer when it signed the United
Nations Charter.