Casos/Seminários

● SS Lotus case
○ Territoriality is not absolute under international law
○ Collision between the french ship and a turkish one, which sank
○ 8 turkish nationals died
○ the french ship continued to constantinople and the french liutenant was
imprisoned
○ special agreement so that the case could be judged before the PCIJ
○ Collision on high seas: only the jurisdiction of France or Turkey are taken into
account
○ general principle that every state is free to adopt the principles which it
regards as best.
○ Court conclusion: the offence produced its effects on the turkish ship, and no
other rule of international law exists that prohibits turkish authorities from
taking proceedings against demons because he was on board of the french
ship.
○ freedom of seas: no jurisdiction over acts taking place in foreign ships and no
more extensive rights than those exercised in its own territory.
■ importance of the flag which the ship flies.
○ in high seas: offence committed in a ship that effected a ship from a nother
nationality, the state affected can take criminal proceedings against the
accused.
○ the absense of criminal judgement of a state affected cannot be considered as
CIL.
○ In case of collisions no exclusive jurisdiction exists in favour of the state
whose flag is flown
○ The court concluded that they do not infringed principles of international law,
mainly because if there are none governing the matter, IL allows every
sovereign state to establish on its own.
○ Mr loder → everything that is not prohibited is permitted under international
law → derivado do pacta sund servanda
○ tratado de lausanne → Art. 15 - delimitação das fronteiras nacionais da
Turquia.
○ Princípios
■ liberdade dos mares
■ prioridade de julgamento de nacional
■ princípio da territorilidade
○ nenhum princípio pode ser alegado de forma presumida.
○ solução teve que ser constrruida e foi julgada de acordo com o direito da
época, hj seria adotada a UNCLOS.
● Factory at Chorzow
○ german government did not wanted to give a restitition to polish because it
was impossibile since there were several alterations
 ○ since it was impossible to have an international recourse, they instituted new
provisions before the court. → in the negotiations, it was established the right
to appeal before the court in the event of failure to agree
○ polish government objection → reparation for the injury that arised from an
infringement of the treaty.
○ the court has jurisdiction
○ breach of an undertaking imports an obligation to make adequate reparation
for the injury sustained
○ The court concludes that has jurisdiction also over the dispute of reparations.
○ The court only has jurisdiction when states have accepted it → concludes that
has jurisdiction.
○ corolário da reparação civil por uma violação de direito internacional.
○ corte poderia analisar, mas havia dois tribunais arbitrais mais adequados para
tal.
○ Deveria ter notificado as partes antes da expropriação
○ Ato ilicito e imputabilidade
○ Legado: tratado faz lei entre ss partes, responsabilidade e expropriação tem
obg de indenizar e restituir.
● Groenlândia Oriental (Dinamarca vs. Noruega), 1933 (atos unilaterais, princípio
estoppel).
○ norwegian hunters hoisted a flag in Mackenzie Bay
○ Norway submitted it was an occupation.
○ greenland trade as a monopoly of the state of denmark, concessions to private
○ several danish missions established
○ norwegian government had no problem in accepting the sovereignty over
greenland
○ but, has not recognized that the liberty of hunting and filhing on the east coast
was supposed to be hindered
○ parts not occupied - terrae nullius - must be under norwegian sovereignty.
○ submission on the PCIJ
○ Danish: all greenland was subjected to sovereignty of danmark
■ for a long time and exercised continuously and peacefully.
■ Norway has recognized it in the treaty and cannot contest it.
○ Norway
■ terrae nullius → sovereignty solely in the colonies
■ that in the circumstances she is now estopped from alleging a
long-established sovereignty over the whole country → when asked for
a recognition of sovereignty that already had.
○ Court:
■ sovereignty:
● intention and will to act as sovereign
● actual exercise or display of such authority
 ■ legislation is one of the ,ost obvious forms of exercising sovereign
power.
■ since no other party contested, the sovereignty extended more than only
the colonies
■ commercial treaties also demonstrates the intention and will to exercise
sovereignty
■ The point at issue between the Parties is whether Denmark was seeking
a recognition of an existing sovereignty extending over all Greenland,
as urged by her Counsel, or, as maintained by Counsel for Norway,
whether she was trying to persuade the Powers to agree to an extension
of her sovereignty to territory which did not as yet belong to her
■ the court considers that it was only a search for an already existing
sovereignty.
■ a grow in government activity in the area in recent years, proving once
more they had sovereignty
■ does not justify norway changing its attitude
■ norway must refrain from contesting it and trying to occupy
○ estoppel - estado n pode contradizer ou negar os próprios atos ou declarações
anteriores.
■ boa - fé
■ evita contradições
○ ato unilateral - quando a noruega declarou a ocupação, mas n foi considerado
legítimo em razão do próprio estoppel.
● Haya de La Torre (Colômbia vs. Peru), julgamentos de 20 e 27 de novembro de 1950
e de 13 de maio de 1951 (costume internacional, asilo).
○ Colombian Ambassador in Lima granted asylum for the Haya de la Torre
(political of the revolutionary alliance)
○ political party charged of beginning the rebellion
○ military rebellion in Peru
○ political refugee status - safe conduct to leave the country
○ government refused, because he had committed normal crimes and not
political ones
■ submission to the court
○ the court
■ declared that Colombia was not entitled to qualify unilaterally and in a
manner binding upon Peru the nature of the offence
● in accordance with principles of IL, does not entails unilaterally
● did not proved that it was a local CIL, regional
■ it declared that the Government of Peru was not bound to deliver a
safe-conduct to the refugee
● Peru had not demanded the departure of the refugee and was
therefore not bound to deliver a safe-conduct.
● there was no urgency, 3 months between the rebelion and the
ask for refugee status
 ● asylum could only intervene against the action of justice in
cases where arbitrary action was substituted for the rule of law
■ one the Peruvian contention that Haya de la Torre was accused of
common crimes; the Court noted that the only count against Haya de la
Torre was that of military rebellion and military rebellion was not, in
itself, a common crime.
■ considered that the requirements for asylum to be granted in
conformity with the relevant treaties were not fulfilled ait the time
when he received Haya de la Torre
● Havana Convention was unable to establish a legal system
which would guarantee to persons accused of political offences
the privilege of evading their national jurisdiction . Such a
conception would come into conflict with one of the oldest
traditions of Latin America» that of nonintervention.
○ 27 of november judgement
■ request inadmissible
■ court generally decides that it cannot adjuge, since it was not submitted
by the parties.
■ this interpretation may in no way go beyond the limits of the Judgment,
as fixed in advance by the submissions of the Parties
■ The Court thus arrives at the conclusion that the asylum must cease, but
that Colombia is not bound to discharge her obligation by surrendering
the refugee. There is no contra- diction between these two findings,
since surrender is not the only manner in which asylum may be
terminated.
● there were other ways in which the asylum could be terminated
besides the surrender of the refugee
● Caso do povo xucuru na corte interamericana
○ caso de demarcação de terras indígenas
○ direito a propriedade coletiva, garantias judiciais e à proteção judicial
○ direito à integridade pessoal pela demora na demarcação das terras
○ dever do estado de prevenir violações de direitos humanos
○ determinação de indenizações
○ normas existentes suficientes para garantir os direitos dos povos indígenas à
terra.
○ sobre o direito de propriedade a respeito do território Xucuru e a falta de
eficácia das ações realizadas pelo Estado para efetuar o registro e titulação do
território; e, por outro,
○ sobre a falta de segurança jurídica no uso e gozo da propriedade, em
decorrência da demora na desintrusão do território.
○ violação ao direito à garantia judicial do prazo razoável
○ A respeito da alegada falta de cumprimento das obrigações positivas para
garantir o direito à propriedade, e à falta de segurança jurídica sobre o uso e
gozo pacífico dos territórios tradicionais do povo Xucuru derivadas da falta de
 sua desintrusão, a Corte reconheceu que o povo Xucuru contou com o
reconhecimento formal da propriedade coletiva de seus territórios desde
novembro de 2005, mas considerou que não há até hoje segurança jurídica
sobre seus direitos à totalidade do território.
○ processo de demarcação ineficaz → violação ao direito de propriedade
coletiva
Caso Lautsi V Italy, European court of human rights
● court reafirma the importance of neutrality in classroom, but rules that crucifixes can
stay
● if the presence of religious crucifixes violated the right of education and religious
freedom
● state’s duty to respect the religious and philosophical convictions of parents not only
applies to the content of teaching and the way it is provided but also the organisation
of the school environment, including whether crucifixes should be present in
classrooms
● considered crucifixes as a passive symbol
● the court did not gave sufficient reasons why it should be regarded in this way →
problem as a precedent for future cases.
● (a) the presence of crucifixes was not associated with compulsory teaching about
Christianity; (b) there was no evidence of intolerance towards other religions or those
without any religion and (c) that the children’s mother could influence and educate
them in the way of her own convictions.
● some of the judges considered this would be under the margin of appreciation of
states
Siliadin V France
● Article 19: Protection from abuse and neglect Article 32: Child labour Article 36:
Other forms of exploitation
● European Convention on Human Rights ( Article 1: Respecting rights; Article 4:
Prohibition on servitude) Council of Europe Convention on Action against
Trafficking in Human Beings Convention Concerning Forced or Compulsory Labour
Slavery Convention Supplementary Convention on the Abolition of Slavery, the Slave
Trade, and Institutions and Practices Similar to Slavery
● Siliadin would work at Mrs. D’s home until the cost of her airfare had been
reimbursed and that Mrs. D would enrol her in school and take care of her
immigration status
● passport was taken away and she was forced to work as an unpaid housemaid for Mr.
and Mrs. D. She was later “lent” to Mr. and Mrs. B, who decided to “keep her” as an
unpaid housemaid and child caretaker, working 15 hour days, seven days a week
● tates have a positive obligation under Article 4 of the Convention to criminalise and
prosecute actions that hold any person in slavery, servitude, or forced or compulsory
labour
● france criminal code did not had a specific provision on the criminalisation of slavery,
only general working provisions, therefore, failed to protect the victim
AfCHPRIngabire Victoire Umuhoza v. Rwanda
 ● criminal conviction following a declaration Ingabire on the rwanda genocide and
other critics on the government
● any form of coercion on the freedon of expression that is not necessary and not
proportionate in a democratic society should be punished
● she was convicted of abetting terrorism and spreading the ideology of genocide,
sectarianism and divisionism
● she stated that the genocide was also against the hutus and not only the tutsis
● fair trial, equality before law and freedom of expression
● interference provided by law
○ national laws punished genocide were vague and ambiguous
○ limits on freedom of expression shall comply with international standards
○ the court concluded that this laws was within the states margin of apreciation
● Legitimate purpose
○ national order and security → followed the limitation exception established by
the african charter
● Necessity and proportionality
○ necessary to punish the negation of the genocide in the country’s history
○ state has no grounds to limit the freedom of expression considering that she
did not defend the existence of a double genocide
○ the statements could not cause a division in the country
○ not necessary or proportionate
ICJ, Advisory Opinion on Accordance with international law of the unilateral declaration of
independence in respect of Kosovo
● requested by the UNGA
● unilateral declaration of independence
● legal answer is not deprived by the political polemics of the discussion
● the jurisdiction over an advisory opinion does not need to be analysed on the political
justifications. → the court has jurisdiction in this case
● however the court has the discricionary power to give or not give an advisory opinion
● the UNGA can also ask for clarifications on matters of peace and security
● question: it asks for the Court’s opinion on whether or not the declaration of
independence is in accordance with international law
● does not ask the question of Kosovo’s statehood
● there is no prohibition to declarations of independence on IL
● right to independence for the peoples of non-self-governing territories and peoples
subject to alien subjugation, domination and exploitation
● territorial integrity is also part of IL
● the UNSC declarations contrary to independence were in specific conditions
○ cases in which there was unlawful use of force or violations of ius cogens
● refuse to conclude the right to self determination in cases of alien dominations,
subjugation and exploitation
● the declaration did not violate general international law
● UNSC resolution 1244
 ○ resolutions may impose obligations under international law
○ mainly because there was an UN mandate of self government in Kosovo
○ The Court notes that Security Council resolutions are issued by a single,
collective body and are drafted through a very different process than that used
for the conclusion of a treaty; they are the product of a voting process as
provided for in Article 27 of the Charter, and the final text of such resolutions
represents the view of the Security Council as a body. Moreover, Security
Council resolutions can be binding on all Member States
○ preambular paragraph of resolution 1244 (1999) also recalled the sovereignty
and the territorial integrity of the Federal Republic of Yugoslavia
○ international territorial administration: exceptional measure relating to civil,
political and security aspects and aimed at addressing the crisis existing in that
territory in 1999
■ humanitarian purposes
■ suspend temporarily Serbia’s exercise of its authority flowing from its
continuing sovereignty over the territory of Kosovo
■ o establish, organize and oversee the development of local institutions
of self-government in Kosovo under the aegis of the interim
international presence.
■ the object and purpose of resolution 1244 (1999) was to establish a
temporary, exceptional legal régime
○ references on the constitutional framework and the Assembly of Kosovo in the
declaration of independence
○ This language indicates that the authors of the declaration did not seek to act
within the standard framework of interim self-administration of Kosovo, but
aimed at establishing Kosovo “as an independent and sovereign state”
○ Nowhere in the original Albanian text of the declaration is any reference made
to the declaration being the work of the Assembly of Kosovo
○ The silence of the Special Representative of the Secretary-General in the face
of the declaration of independence of 17 February 2008 suggests that he did
not consider that the declaration was an act of the Provisional Institutions of
Self-Government designed to take effect within the legal order for the
supervision of which he was responsible
○ the authors of the declaration of independence of 17 February 2008 did not act
as one of the Provisional Institutions of Self-Government within the
Constitutional Framework, but rather as persons who acted together in their
capacity as representatives of the people of Kosovo outside the framework of
the interim administration
○ Security Council did not reserve for itself the final determination of the
situation in Kosovo and remained silent on the conditions for the final status
of Kosovo.
Certain Expenses of the United nations Advisory Opinion
● Art. 17 paragraph 2 of the UN charter
 ● By nine votes to five the Court declared that the expenditures authorized in certain
General Assembly resolutions enumerated in the request for opinion, relating to the
United Nations operations in the Congo and in the Middle East undertaken in
pursuance of Security Council and General Assembly resolutions likewise
enumerated in the request, were "expenses of the Organization" within the meaning of
Article 17, paragraph 2, of the Charter of the United Nations
● expenses of the organization → budget, regular or administrative
● always included unforeseen and extraordinary expenses in relation to maintenance of
peace and security
● not only regular, but all expenses
● expenses of peace and security of the UNGA were included and of the UNSC as well
● the expenditures should be in accordance with the purposes of the UN
● operation in congo was to maintain peace and security

Western Sahara Advisory Opinion

● questions
○ if the territory was terra nullius in the time of colonization by spain
■ was not
○ if there was legal ties between the territory and mauritanian entity
● there was no sovereignty ties between the territory and morroco or mauritanian tribes
● self determination does not apply.
● it was not an occupation, but agreements with the local rulers → it was not terra
nulius
● question is the effective authority before and currently the spain colonization
● legal ties only between the sultan and some tribes
○ not in all the territory
● difficulty determining the territory of mauritania and morroco because there were
nomadic tribes
● and also cannot be alleged self determination because there was not a colonization per
se.
Gabicikovo nagymaros project
● the Court found that Hungary was not entitled to suspend and subsequently abandon,
in 1989, its part ofthe works in the dam project, as laid down in tlie treaty signed in
1977 by Hungary and Czechoslovakia and related instruments; it also found that
Czechoslovakia was entitled to start, in November 1991, preparation of an alternative
provisional soliltion (called "Variant C"), but not to put that solution into operation in
October 1992 as a unilateral measure
● joint notification of the court via special agreement
● treaty between hungary and czechoslovakia on the construction of the project
○ joint financing, construction and operation of the project
● hungarian government suspended the work while there were studies pending and then
decided to abandon the works
● slovakia - diversion of the danube as a consequence
● suspension of the treaty
 ○ applicable the vienna conventions as custom
○ hungary objective was to render impossible the project
○ state of necessity
■ essential interest
■ grave and imminent peril
■ cannot contribute to the state
○ it was not imminent
○ hungary could not suspend and abandon the treaty
● provisional solution of czech and slovak authorities
○ only possible way to comply with the remaining clauses of the treaty
○ court considered that variant c configured an internationally wrongful act
○ was not a lawful countermeasure because was not proportionate
● legal effects of the notification by hungary
○ state of necessity → exists, but is not a ground for terminating the treaty
○ impossibility of performance → the regime did not cease to exist, necessary
negotiation
○ fundamental change of circunstances
■ object and purpose of the treaty did not change
■ even the evolving environmental law cannot justify it
○ material breach of the treaty
■ hungary → construction and operation of variant c
■ however the breach of slovakia did not yet happened and the
notification in this case was premature
○ new norms of environmental law
■ are important for the interpretation of the treaty
■ agree to take precautionary measures
○ dissolution of czechoslovakia
■ treaties of territorial character are unaffected by succession of states
● legal consequences
○ 1977 treaty is still in force - lex speciallis
○ faillure of both states in complying with the treaty
○ necessary to follow the pacta sund servanda - art. 26
○ payment of damages of both parties

CASO COMUNIDADES INDÍGENAS MIEMBROS DE LA ASOCIACIÓN LHAKA

HONHAT (NUESTRA TIERRA) VS. ARGENTINA
● responsabilidade internacional da Argentina por ter violado os direitos de
comunidades indígenas
● violação do direito à propriedade comunitária, identidade cultural, meio ambiente
saudável, alimentação e água adequada
● ordena repações
● ocupações de terras indígenas por n indígenas
● construção de uma ponte sem consulta aos indígenas
 ● violação do direito à propriedade comunitária indígena e de participação das
comunidades ao n consultar para construir a ponte.
● violação do direito à garantia judicial
● reparação
○ medidas para delimitar, demarcar e outorgar o título de propriedade para os
indígenas
○ retirada das populações ocupantes com respeito aos seus direitos também
ICJ, Pulp Mills on the river Uruguay
● statute of the river uruguay → treaty between the two countries
○ jurisdiction is given to the court via the statute
● planned construction authorized by Uruguay of one pulp mill and the construction and
commissioning of another, also authorized by Uruguay, on the River Uruguay.
● breach of procedural obligation
○ sustainable development on the use of the river uruguay
○ prevention → customary rule
■ origin on due dillience
○ continuous consultation and notification on the use of the shared resource to
caru and to Argentina
○ CARU - international organization that has the responsibility of preserving the
environment of the river
■ obligation of Uruguay to inform it
○ initiation of cooperation
○ environmental impact assessment in posssible transboundary harm
■ not determined the content by custom
○ suspention of a treaty is only possible in conformity with the provisions of the
treaty or with consent of the parties
● disagreement on the scientific authorities
● optimum and rational utilization of the river
● obligation not to cause an environmental harm
● the treaty has to be interpreted according to the practice
● conclusion - they breached procedural, but not substantive obligations
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
(Request for advisory opinion)
● 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?
● jurisdiction → UNGA may request upon questions relating to the maintenance of
international peace and security brought before it by any Member of the United
Nations
● relevant legal nature → principles and rules of international law established in the
geneva conventions and resolutions of the UNSC
● the fact that a legal question also has political aspects, “does not suffice to deprive it
of its character as a ‘legal question’ and to ‘deprive the Court of a competence
expressly conferred on it by its Statute’
● israel occupied territories in the israel x jordan war → status of occupying power
● rules: UN charter, customary international law and resolutions of the UNGA and
UNSC
● UN charter - Art. 2 (4) - refrain from the use of force
○ no acquisition of territory resulting from use of force should be recognized as
legal
○ already recognized as custom
● principle of self determination, including of non-self-governing territories
● International humanitarian law
○ israel disputes the applicability of the forth geneva convention over the
territory of palestine → protection of civilians
○ the court considers that it is applicable
● Human rights law
○ iccpr and icescr
○ the protection of human rights law does not cease in times of war
○ in cases of human rights law and humanitarian law applying in the same
matter, humanitarian law should apply as lex specialis
○ the Court concludes that those instruments (human rights treaties) are
applicable in respect of acts done by a State in the exercise of its jurisdiction
outside its own territory
● As regards the principle of the right of peoples to self-determination, the Court
observes that the existence of a “Palestinian people” is no longer in issue, and has
been recognized by Israel, along with that people’s “legitimate rights”. The Court
considers that those rights include the right to self-determination
● Article 49, paragraph 6, of the Fourth Geneva Convention which provides: “The
Occupying Power shall not deport or transfer parts of its own civilian population into
the territory it occupies.”
○ The Court concludes that the Israeli settlements in the Occupied Palestinian
Territory (including East Jerusalem) have been established in breach of
international law.
● the construction of the wall has led to the destruction or requisition of properties
under conditions which contravene the requirements of Articles 46 and 52 of the
Hague Regulations of 1907 and of Article 53 of the Fourth Geneva Convention.
● the construction of the wall would also deprive a significant number of Palestinians of
the “freedom to choose [their] residence”.
● the Court is of the opinion that the construction of the wall and its associated régime
impede the liberty of movement of the inhabitants of the Occupied Palestinian
Territory (with the exception of Israeli citizens and those assimilated thereto) as
guaranteed under Article 12, paragraph 1, of the International Covenant on Civil and
Political Rights. They also impede the exercise by the persons concerned of the right
to work, to health, to education and to an adequate standard of living as proclaimed in
 the International Covenant on Economic, Social and Cultural Rights and in the United
Nations Convention on the Rights of the Child. Lastly, the construction of the wall
and its associated régime, by contributing to the demographic changes mentioned,
contravene Article 49, paragraph 6, of the Fourth Geneva Convention and the
pertinent Security Council resolutions cited earlier.
● Israel cannot invoke self defense or state of necessity to preclude the wrongfulness of
building the wall[
● The Court finds further that Israel has the obligation to make reparation and
compensate for the damage caused to all the natural or legal persons concerned.
● The obligations erga omnes violated by Israel are the obligation to respect the right of
the Palestinian people to self-determination, and certain of its obligations under
international humanitarian law
LEGALITY OF THE THREAT OR IJSE OF NUCLEAR WEAPONS, Advisory Opinion
●
● There is in neither customary nor conventional international law any specific
authorization of the threat or use of nuclear weapons;
● There is in neither customary nor conventional international law any comprehensive
and universal prohibition of the threat or use of nuclear weapons as such;
● A threat or use of force by means of nuclear weapons that is contrary to Article 2,
paragraph 4, of the Charter of the United Nations and that fails to meet all the
requirements of Article 5 1 is unlawful;
● A threat or use of nuclear weapons should also be compatible with the requirements
of the international law applicable in armed conflict, particularly those of the
principles and rules of international humanitarian law, as well as with specific
obligations under treaties and other undertakings which expressly deal with nuclear
weapons;
● It follows from the above-mentioned requirements that the threat or use of nuclear
weapons would generally be contrary to the rules of international law applicable in
armed conflict, and in particular the principles and rules of humanitarian law;
● However, in view of the current state of international law, and of the elements of fact
at its disposal, the Court cannot conclude definitively whether the threat or use of
nuclear weapons would be lawful or unlawful in an extreme circumstance of
self-defense, in which the very survival of a State would be at stake;
● There exists an obligation to pursue in good faith and bring to a conclusion
negotiations leading to nuclear' disarmament in all its aspects under strict and
effective international control".
● Court further finds that while the existing international law relating to the protection
and safeguarding of the environment does not specifically prohibit the use of nuclear
weapons, it indicates important environmental factors that are properly to be taken
into account in the context of the implementation of the principles and rules of the law
applicable in armed conflict
● The proportionality principle may thus not in itself exclude the use of nuclear
weapons in self-defence in all circumstances.
 ● even within this framework, the nuclearweapon 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.

ICJ, RESERVATIONS TO THE CONVENTION ON THE PREVENTION AND

PUNISHMENT OF THE CRIME OF GENOCIDE Advisory Opinion
● States which has made and mantained a reservation which has been objected to by one
or more of the parties to the convention can be regarded as a party if the reservation is
compatible with its object and purpose
● no reservation is valid unless it is accepted by all contracting parties
● if does not conflict with the object and purpose of the treaty, it is possible to make
reservations if there are no express prohibitions of reservations in the treaty
● the purpose of universality made possible that the state is not excluded from the treaty
if make minor reservations.
● if a state does not agree with the reservation, it can not consider this state as a party to
the convention
● the objection of a state entitled to sign and ratify but has not yet done so has no legal
effect
○ only express the attitude of each signatory state on becoming a party.

ICJ, Nottebohm (Liechtenstein v. Guatemala)

● Liechtenstein claimed restitution and compensation on the ground that the
Government of Guatemala had acted towards Mr. Friedrich Nottebohm, a citizen of
Liechtenstein, in a manner contrary to international law
● the claim was considered to be inadmissible
● right of diplomatic protection → bond between the state and the individual via
nationality
○ nottebohm was naturalized as a citizen of liechtenstein
● german national who applied for naturalization in liechtenstein, but lived in guatemala
● the question was if the nationality of liechtenstein was valid and if the diplomatic
protection could be exercised in this case
● the rules of aquiring nationality are of domestic jurisdiction
● strong factual ties between the person and the country of nationality is being
conferred
○ family ties, interests, habitual residence, public life…
○ must correspond to the factual situation
○ effective link between the state and the individual
○ nationality connected to a juridical expression connected with the population
○ can only exercise protection when there is a juridical translation into juridical
terms of the individual connection with the state
● the case was considered to be inadmissible.
ICJ Advisory opinion, reparation for injuries suffered in the service of the UN
● Protection to UN agents and reparation in case of injuries
● State’s responsibility
● The capacity of UN to bring an international claim 🡪 methods recognized by
international law
● Cannot be submitted in the court without the consent of the states concerned
● UN recognized with a personality.
● To determine the nature, it depends upon the needs of the international community
● Give obligations to the UN
● Is detached from its members 🡪 capacity to operate upon an international plane
● Convention on the privileges and immunities of the UN
● Capacity to maintain its rights by bringing international claims
● Damage of a un agent from a State’s action
● Solved by the charter in the light of principles of international law
● Question if they woluld be capable of bringuing a claim on behalf of the agent
● The need of an adequate protection to provide the missions 🡪 guarantee independence
and effectiveness of the work
o Cannot rely on any other protection, neither of his own state
● The functional protection arises from the charter
● Question if that would be possible of the state is not a member of the UN.
o It would be possible because 50 states, vast majority of members of the
international community with great power, are part, therefore, recognized by
international law.
● If it is a national?
o Diplomatic X functional protection 🡪 no priority 🡪 goodwill and common
sense
● The action is based on the fact of being an agent and not upon its nationality
● No caso era a região da palestina com administração realizada pela Inglaterra
● Assassinato do representante da onu sueco bernadotti 🡪 origem
● Divisão da região em duas regiões descontinuadas 🡪 entre judeus e árabe
● Questionamento sobre a personalidade jurídica da ONU para ela pedir reparação tanto
em razão da própria organização e da própria família
● Capacidade de agir no plano internacional e dotada de personalidade jurídica para
tanto.
● Entidade criada exteriormente aos estados – sem necessidade de concorrência política
entre os estados
● Ente distinto dos estados membros com competências próprias
● Responsabilidade internacional objetiva.
● Funcionalidade das organizações
● PJ de facto da ONU em relação com as missões já realizadas à época
● Concepção dos poderes implícitos 🡪 dotadas de meios para alcançar os objetivos para
qual foi criada
o Assim, n era previsto a capacidade de litigar
o Reconhecimento como sujeitos de direito internacional
o Podem ter direitos e obrigações
o Inclusive incorrerem em responsabilidade internacional
 o Mas essa discussão já era discutida na liga das nações em 1925 🡪 capacidade
de sujeito de dip em razão de receber representantes diplomáticos.

ICC, Situation in the Republic of Mali The Prosecutor v. Ahmad Al Faqi Al Mahdi
● Found Guilty as a co-perpetrator, of the war crime of intentionally directing attacks
against historic monuments and buildings dedicated to religion, including nine
mausoleums and one mosque in Timbuktu, Mali, in June and July 2012.
● Mr Al Mahdi is accused, pursuant to
○ article 25(3)(a) (perpetration and co-perpetration);
○ article 25(3)(b) (soliciting, inducing);
○ article 25(3) (c) (aiding, abetting or otherwise assisting)
○ article 25(3) (d) (contributing in any other way) of the ICC Rome Statute, of
the commission of a war crime alleged by the Prosecutor regarding
intentionally directing attacks against the following buildings
● The Chamber indicated that the targeted buildings were regarded and protected as a
significant part of the cultural heritage of Timbuktu and of Mali and did not constitute
military objectives.
● They were specifically identified, chosen and targeted precisely in light and because
of their religious and historical character. As a consequence of the attack, they were
either completely destroyed or severely damaged. Their destruction was considered as
a serious matter by the local population.
● was an active personality in the context of the occupation of Timbuktu. He allegedly
was a member of Ansar Eddine, a mainly Tuareg movement associated with Al Qaeda
in the Islamic Maghreb ("AQIM"), working closely with the leaders of the two armed
groups and in the context of the structures and institutions established by them
● He was also associated with the work of the Islamic Court of Timbuktu and
participated in executing its decisions. It is alleged that he was involved in the
destruction of the buildings mentioned in the charge.
● The situation in Mali was referred to the Court by the Government of Mali on 13 July
2012
● for war crimes of intentionally directing attacks against historic monuments and
buildings dedicated to religion, including nine mausoleums and one mosque in
Timbuktu, Mali
○ estatuto de roma, art. 8 - crimes de guerra
■ ix) Dirigir intencionalmente ataques a edifícios consagrados ao culto
religioso, à educação, às artes, às ciências ou à beneficência,
monumentos históricos, hospitais e lugares onde se agrupem doentes e
feridos, sempre que não se trate de objetivos militares;
● On 26 September 2015, Mr Al Mahdi was surrendered to the ICC by the authorities of
Niger and transferred to the ICC Detention Centre in the Netherlands.
● The Chamber sentenced Mr Al Mahdi to nine years’ imprisonment
● On 17 August 2017, Trial Chamber VIII issued a Reparations Order concluding that
Mr Al Mahdi is liable for 2.7 million euros in expenses for individual and collective
 reparations for the community of Timbuktu for intentionally directing attacks against
religious and historic buildings in that city.
● terrorists groups against sunit minorities
● destruction of the Songai empire
● Mali ratified the rome statute
● war crimes: attacks on non-military objectives
ICC, Situation in Uganda The Prosecutor v. Dominic Ongwen
● On 4 February 2021, Trial Chamber IX of the International Criminal Court (ICC)
declared Dominic Ongwen guilty, beyond any reasonable doubt, of the following 61
crimes characterized as war crimes and crimes against humanity, committed in
Uganda between 1 July 2002 and 31 December 2005:
○ (i) attacks against the civilian population as such, murder, attempted murder,
torture, enslavement, outrages upon personal dignity, pillaging, destruction of
property and persecution; committed in the context of the four specified
attacks on the Internally Displaced Persons camps (“IDP camps”) Pajule (10
October 2003), Odek (29 April 2004), Lukodi (on or about 19 May 2004) and
Abok (8 June 2004);
○ (ii) sexual and gender based crimes, namely, forced marriage, torture, rape,
sexual slavery, enslavement, forced pregnancy and outrages upon personal
dignity he committed against seven women (whose names and individual
stories are specified in the judgment) who were abducted and placed into his
household;
○ (iii) A number of further sexual and gender based crimes he committed against
girls and women within the Sinia brigade, namely forced marriage, torture,
rape, sexual slavery and enslavement; and
○ (iv) The crime of conscripting children under the age of 15 into the Sinia
brigade and using them to participate actively in hostilities (crianças soldado)
● The Chamber found that these crimes were committed in the context of the armed
rebellion of the Lord’s Resistance Army (LRA) against the government of Uganda.
The LRA, including Dominic Ongwen, perceived as associated with the government
of Uganda, and thus as the enemy, the civilians living in Northern Uganda. This
concerned in particular those who lived in government established IDP camps.
● Uganda signed the Rome Statute on 17 March 1999 and ratified on 14 June 2002
becoming a State Party to the International Criminal Court. On 16 December 2003,
the Government of Uganda referred the situation concerning northern Uganda to the
Office of the Prosecutor determined a reasonable basis to open an investigation into
the situation concerning northern Uganda
● On 6 February 2015, Pre-Trial Chamber II severed the proceedings against Dominic
Ongwen from the case of The Prosecutor v. Joseph Kony, Vincent Otti, Okot
Odhiambo and Dominic Ongwen. As the three other suspects in the case have not
appeared or have not been apprehended yet, the Chamber deemed it necessary to
separate the case so as not to delay the proceedings against Mr Ongwen.
 ● On 4 February 2021, Trial Chamber IX found Dominic Ongwen guilty for a total of
61 comprising crimes against humanity and war crimes, committed in Northern
Uganda between 1 July 2002 and 31 December 2005.
● 4,095 victims have been granted the right to participate in the proceedings

ICJ, Corfu Channel Case - Albania V UK

● Two british destroyers struck mines in albanian territorial waters in the Corfu channel
● explosions caused damage to the vessels and loss of life
● the matter was submitted to the security council
● UK asked for the international responsibility of albania referring to the damages that
occurred and a compensation
● binding character of the security council recommendations for the UN members
● acceptance of the courts jurisdiction when albania submited the letter to the court
● the government of albania did not allert the possibility of existence of mines to the uk
navy
○ the laying of the minefields could not be done without the knowledge of
Albania
○ it was its duty to notify the existence of the mines
○ nothing was done to prevent the disaster → international responsibility
● Innocent passage
○ principle that States, in time of peace, have a right to send their warships
through straits used for international navigation between two parts!; of the
high seas, provided that the passage is innocent
○ Albania could impose restrictions exceptionally, but could not prohibit the
passage or require a special authorisation
● The court recognized that the British actions constituted a breach of albanian
sovereignty in carrying out minesweeping operationsin albanian waters after the
explosion.
ICJ, CASE CONCERNING UNITED STATES DIPLOMATIC AND CONSULAR STAFF
IN TEHRAN
● embassy of the US in Iran → seizure and detention as hostages of its diplomatic and
consular staff and two more US nationals
● provisional measures conceded → embassy shpuld be immediately be given back and
the hostages released
● the Court finds that three, namely the Optional Protocols to the two Vienna
Conventions of 11961 and 1963 ton, respectively, Diplomatic and Consular Relations,
and the 1955 treaty of Amity, Economic Relations, and Consular Rights between the
United States and Iran, do in fact provide such foundations → jurisdiction since they
are both parties to those treaties
● responsibility of the iranian government attributable in relation to the actions of the
militants
○ further, iran was under the obligation to protect the embassy and prevent any
damages
○ breached the conventions on diplomatic and consular relations
 ○ Ayatollah Khomeini himself proclaimed the Iranian State's endorsement of
both the seizure of the premises and the detention of the hostages → continued
breach of the obligations since did not take any steps to put an end to the
inviolability of the embassy
● diplomatic law provides the possibility of breaking off diplomatic relations, or of
declaring persona non grata members of diplomatic or consular missions who may be
carrying on illicit activities
● court recognized iran’s international responsibility
● no american could be subjected to judicial proceedings
ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America)
● ilegal use of force by the USA
● alleged the use of collective self-defense
● the court examines in this case the role of the US government in supporting the
Contras force paramilitary group.
○ provided tactics and combat support to the group
● the support of the United States for the activities of the contras took various forms
over the years, such as logistic support, the supply of information on the location and
movements of the Sandinista troops, the use of sophisticated methods of
communication
● the Court takes the view that the contras remain responsible for their acts, in particular
the alleged violations by them of humanitarian law. For the United States to be legally
responsible, it would have to be proved that that State had effective control of the
operations in the course of which the alleged violations were committed
● Also it complained about the effects of the economic measures imposed by the
embargo.
● Applicability of customary international law
○ The principle of non-use of force: the response to an attack is lawful depends
on the observance of the criteria of necessity and the proportionality of the
measures taken in self-defense.
○ there is no rule permitting the use of collective self defense
○ principle of non-intervention: the right of every sovereign State to conduct its
affairs without outside interference
■ intervention on the domaine réservé + coercion
■ united states infringed this principle
■ are also an infringement of nicaraguan sovereignty
● the circumstances required for the exercise of this right of collective self-defense were
present, and therefore considered whether the States in question believed that they
were the victims of an armed attack by Nicaragua, and requested the assistance of the
United States in the exercise of collective self-defense. The Court has seen no
evidence that the conduct of those States was consistent with such a situation.
IACHR, Caso Ximenes Lopes Vs. Brasil
● violação do direito à vida, à integridade pessoal, garantias judiciais e à proteção
judicial
 ● Ximenes lopes desenvolveu uma doença mental congênita ao longo do tempo
● foi internado em um asilo do SUS, sem nenhuma agressividade ou lesões corporais
● em um momento de agressividade foi retirado à força pelos enfermeiros de um
banheiro
● grandes marcas corporais depois desses eventos com insalubridade → morreu
● procedimento dentro do país n foi efetivo, submeteram à comissão interamericana
● reconhecido o esgotamento dos recursos internos
● reconhecimento da responsabilidade internacional do estado brasileiro
● precariedade do sistema de atenção aos detentores de doenças mentais, maus tratos
reconhecidos
● dever do estado de ter capacidade de tratar dos doentes mentais de forma eficaz e
acesso aos serviços de saúde básicos
● finalidade do tratamento tem que sempre ser o bem estar e o respeito à dignidade
como ser humano
● quando o doente é incapaz de manifestar a sua vontade, o consentimento precisa ser
realizado pelos seus responsáveis, e n arbitrariamente pela equipe médica
● método de sujeição menos restritivo possível
● integridade física e psíquica violada pe foi provado o sofrimento e a angústia da
vítima
● violações de garantias judiciais e de integridade psíquica à família do falecido
também.
IACHR, Caso: Trabalhadores da Fazenda Brasil Verde vs. Brasil, 2016 (trabalho escravo)
● Brasil considerado responsável pela violação:
○ n ser submetido a escravidão e tráfico de pessoas
○ Violação derivada da discriminação estrutural
○ garantias judiciais
○ proteção judicial
● condenação pela inação do estado brasileiro relativo ao desaparecimento de dois
jovens e da continuidade da escravização de pessoas na Fazenda Brasil verde
● condições degradantes de trabalho e violação de direitos trabalhistas
● visitas de órgãos de fiscalização brasileiros que n determinaram o fim definitivo das
atividades
● escravidão por endividamento, alimentação insuficiente, trabalho degradante e
condições insalubres de higiene
● procedimento judicial interno insuficiente, apenas com o comprometimento de não
realizar mais trabalho escravo
● direito que faz parte do núcleo inderrogável de direitos humanos (Ius cogens)
○ norma imperativa de direito internacional que implica em obrigações erga
omnes
ECHR, Hirsi Jamaa and Others v. Italy
● Italy violated human rights principles by spurring African migrants and Asylum
seekers on the high seas
 ● the Court considered the plight of 24 people from Somalia and Eritrea who were
among more than 200 people intercepted at sea by Italian authorities in 2009 and
forced to return to Libya, their point of departure
● violated the obligation not to return individuals to countries where they could be at
risk of human rights abuses → Non-refoulement
● the risk of being subjected to il treatment in the authoritarian and abuser Libyan
government or deported back to eritrea and somalia
● even when individuals are intercepted in international waters, government authorities
are obliged to abide by international human rights law
● Anybody they intercept must have access to an individualized procedure as well as
remedies to challenge the decision to return them to their country of departure.
● The Court found such removals operated outside national territory constituted
collective expulsion
● international human rights law norms still applies even in the high seas, including the
principle of non-refoulement

ACHPR, Lohé Issa Konaté v. The Republic of Burkina Faso

● freedom of press
● the journalist was wrongly convicted of defamation of newspapers articles that
alleged corruption by a state prosecutor
● conviction was disproportionate in relation to the guaranteed rights of freedom of
expression
● public figures have to tolerate more criticism than private individuals
● the national test for defamation have to comply with the requisites of necessity and
proportionality
● guaranteed on the African charter and on ICCPR and on the ECOWAS treaty (Treaty
of the Economic Community of West African States)
● including the imprisonment for defamation was considered as an abuse
● criteria for limiting freedom of expression
○ clarity of the domestic law
○ legitimate purpose for the restriction
○ necessity for achieving the purpose → failed in this criteria
● as well as this should be a civil and not a criminal case
● the imprisonment, the monetary punishment and the suspension of the newspaper
were excessive measures
● defamation should not be criminalized
IACHR, CASO BRÍTEZ ARCE Y OTROS VS. ARGENTINA
● Argentina considera internacionalmente responsável por violar
○ vida, integridade e saúde → dever do estado de grantor acesso e
principalmente para evitar a mortalidade materna e fetal
■ garantir o acesso à informação da condição médica em que a pessoa se
encontra
■ reconhecimento de violência obstétrica - baseada em gênero
 ● tratamento desumanizado, desrespeitoso, abusivo ou negligente
para com mulheres grávidas
● intervenções médicas forçadas ou coagidas e tendência de
patologizar processos reprodutivos naturais
● foi submetida a violência obstétrica que levou a sua morte
○ integridade pessoal
○ direitos das crianças
○ proteção judicial
● Argentina reconheceu sua responsabilidade
● Britez arce → mulher que morreu na gravidez
○ tinham fatores de risco que não foram atendidos de forma adequada pelo
sistema público de saúde
○ principalmente pela idade, peso e pressão arterial alta
○ no ecocardiograma demonstrou que o feto estava morto e que precisariam
induzir o parto
○ morreu por parada respiratória
○ violação da convenção de belém do pará
○ violação da integridade pessoal de seus filhos → desintegração da família
■ tinham direito à viver em família
○ violação dos direitos da proteção da família e das crianças
IACHR, CASO VICKY HERNÁNDEZ Y OTRAS VS. HONDURAS
● Honduras considerado responsável pela violação:
○ vida
○ integridade pessoal
● Vicky é uma mulher trans, trabalhadora sexual e defensora dos direitos das mulheres
trans
● participação de diversos atores estatais nos fatos que levariam a morte de Vicky
● principalmente pq a violência foi exercida como resposta a sua expressão de
identidade de gênero
● reconhecimento do estado como violador dos direitos ao reconhecimento da
personalidade jurídica, liberdade pessoal, privacidade, liberdade de expressão e ao
nome
● Convenção americana de direitos humanos e convenção interamericana para prevenir,
sancionar e erradicar a violência contra a mulher
● estado reconheceu parcialmente sua responsabilidade
● ferimento da devida diligência, e das garantias do devido processo e da proteção
judicial em nome dos familiares de Vicky
● patrulha de polícia a levou e no dia seguinte foi entregue o corpo dela - laceração
cerebral por perfuração por arma de fogo
○ investigações do estado n chegaram a nenhum resultado
● Reconhecimento que nenhum estado pode atuar de maneira discriminatória por
motivo da orientação sexual, identidade de gênero e/ou expressão de gênero