Corfu Channel (Albania/UK), ICJ (1949)

Following the gs determination of state responsibility in the judgment of 9.4.1949, the ICJ had to
decide on the amount of the SE in this case. Albania contested the ICJ's jurisdiction on the
grounds that its plea did not extend to this part of the proceedings. Albania was ordered by the
ICJ to pay SE to GB in absentia.

2.4 Lusitania Case (Germany/USA), 1923

The British steamer Lusitania was torpedoed by a German submarine off the south coast of
Ireland in 1915. The ship, which was probably also carrying war materials, sank within a short
time, killing 1198 people, including 128 nationals of the then-neutral United States. The
torpedoing occurred in waters that the German government had declared a war zone a short
time earlier.
The Joint Arbitration Commission affirmed the existence of U.S. claims for compensation against
Germany.

Responsibility under International Law - Reparation and Damages - In determining the pflicht of
reparation, account must be taken of any contributory negligence on the part of the injured state
or person for whom reparation is sought. If the injured State or person has contributed to the
damage through intentional or negligent acts or omissions, this will lead to a reduction of the
reparation pflicht. This was indicated by the ICJ in the LaGrand case and, moreover, is likely to
be a general principle of law. Likewise
the violation of any mitigation Pflicht be taken into account in determining reparation. Such a
Pflicht was admittedly rejected by the ICJ in the

Gabcikovo Nagymaros case left open, but it finds itself in the ILC commentary on Art 31.

Direct and indirect material damage to the state - The situation is complex with regard to
indirect or consequential damage. This includes those that are only an indirect consequence of
the infringement, such as lost profits. The jurisprudence of international instances on lost profit
is inconsistent. The vast majority of decisions awarded compensation for the profit that could
have been expected in the ordinary course of events.

Intangible damages of the state - While the rejection of punitive damages follows necessarily
from the purely repair function of reparation, conceptually there is no argument against the
possibility of appreciable monetary payments for purely intangible damages also of the state.
The idea prevailing in earlier times that immaterial damage to the state exclusively affected its
honor or dignity, which could not be compensated in money, is now outdated. The admissibility
of a monetary award for non-material damages of the state was also recognized by the arbitral
tribunal in the Rainbow Warrior case on the merits in an obiter dictum. Since non-material
damages can also vary in severity, the amount awarded could be adjusted to the extent of the
damage without the monetary payment taking on a penal character.
2.5 I'm alone case (Canada/USA), 1935
The British ship I'm Alone, registered in Canada, was smuggling alcohol into the U.S. at the time
of Prohibition. In 1929, it was sunk by a U.S. Coast Guard vessel about 200 sm from the U.S.
coast. It had previously been ordered to stop, still within the zone established by the 1924 U.S.-
British treaty authorizing searches of British vessels by U.S. authorities and other measures.
However, the I'm Alone had complied with this request. Canada considered the sinking of the
ship a violation of the 1924 treaty, and the arbitration commission provided by the treaty ruled
that the sinking of the vessel
constituted a violation of international law. With respect to the right of hot pursuit invoked by
the United States, it stated that, in any event, it did not normally include the right to sink the
ship.

Responsibility under International Law - Intangible Damages of the State - While the rejection of
punitive payments necessarily follows from the purely repair functon of reparation,
conceptually there is no argument against the possibility of appreciable monetary payments for
purely intangible damages of the state as well. The idea prevailing in earlier times that
immaterial damage to the state exclusively affected its honor or dignity, which could not be
compensated in money, is now outdated. The admissibility of a monetary award for non-
material damages of the state was also recognized by the arbitral tribunal in the Rainbow
Warrior case on the merits in an obiter dictum. Since non-material damages can also vary in
severity, the amount awarded could be adjusted to the extent of the damage without the
monetary payment taking on a penal character.

Satisfaction - The Pflicht, also belonging to satisfaction, adopted by a large part of the doctrine
and stated in some international decisions, of adequately punishing the perpetrator or
perpetrators of a violation of international law, insofar as they are subordinate body officers or
private persons, is

problematic. This is because, at least in states governed by the rule of law, only the initiation of
proceedings, not a priori punishment by courts, can be demanded or even guaranteed.

2.6 Mavrommatis Case (GL/UK), StIG (1924)

Mavrommatis, a Greek national, had concluded a concession revenue agreement with the city of
Jerusalem in early 1914, but its execution was then postponed due to the impending outbreak of
war. After the establishment of the British Mandate over Palestine in 1920, the British
government refused to respect Mavrommatis' earlier acquired right, whereupon the Greek
government granted him diplomatic protection and, after unsuccessful negotiations, finally filed
a lawsuit against Great Britain with the IST.

Mediatization of man - This fiction, going back to Vattel, is a consequence of the structure of
international law dogmatically determined as a right between legal communities, but not
between them and individuals. It is extremely unsatisfactory for the physical or legal persons
concerned. Since the state claims the violation of its own law, individuals have a subjective right
to the action of their home state only if its domestic law grants them such a right. However, this
is often not the case.

2.7 Tehran Hostage Case (USA/Iran), ICJ (1980).

On Nov. 4, 1979, the U.S. embassy building in Tehran was stormed and occupied by armed
demonstrators. The entire diplomatic and consular staff as well as several private individuals
with U.S. citizenship were taken hostage. Neither during nor after the storming did Iranian
authorities make any effort to protect the Embassy and its personnel. The action against the U.S.
Embassy and its personnel was subsequently approved and authorized by Iranian leaders.
Moreover, the Iranian government refused to negotiate with the U.S. to end the situation.
After the U.S. brought the matter before the ICJ, it issued precautionary measures under Art 41
of its status, ordering the return of the embassy building to the U.S. and the release of the
hostages. Iran contested the ICJ's jurisdiction, refused to implement the precautionary measures,
and did not participate in the proceedings.
The ICJ ruled that Iran had violated a number of provisions of the Wider Consular Convention
and the Vienna Convention on the Law of Diplomacy.

Western international law scholarship after 1945 - Recently, the question of the unity of theV
international legal order has been raised, especially also in the ILC (fragmentation debate). The
starting point of this discussion is the realization that, in view of the enormous range of content
of international law regulations, a
specialization in certain areas is unavoidable. Following the often quoted dictum of the ICJ in the
Tehran Geisel case about the diplomatic law of the CIS as a closed system, this has led to
speculations about the closedness of individual subsystems of international law.

General principles of law - examples from international practice - General principles of law have
an important function in international commercial arbitration, in particular in the extensive
award practice of the

Iran-US Claims Tribunal. This is an arbitration body created in the course of dealing with the
Tehran Hostage Case between Iran and the U.S. to resolve the commercial law problems that
arose in the wake of the 1979 Iranian Islamic Revolution.

State organs - States act through their organs. The concept of organs under international law is
based on the effective exercise of sovereign power and goes beyond the concept of organs within
a state as it results above all from the organizational structure of the state enshrined in
constitutional law. In the area of state responsibility, too, the concept of organ is of great
importance, especially in connection with attribution. In addition, international law also makes
presumptions about the extent to which the organ in question is entitled to make binding
declarations on behalf of its state.
Recognition of Government - Recognition of governments is superflfluous under traditional
international law, since the identity of the state as a subject of international law under
international law remains affected even by an unconstitutional change of its government. Thus,
in 1980, the ICJ ruled that it could exercise jurisdiction over the Islamic Republic of Iran because
of the Shah's government's submission to that jurisdiction. Furthermore, the Afghan Taliban
government was recognized by 3 states without changing the subjectivity of Afghanistan under
international law.

ICJ - Party Status and Jurisdiction - The ICJ's jurisdiction is limited to disputes whose subject
matter is further delineated in Art 36 ICJ Statute. These justiciable strokes concern the
application and interpretation of international law applicable between the parties. Hinginge is
requested in political or interest disputes a new Nomr the legal question is not asked at all.
Although the objection of a political dispute is frequently raised by respondent states, it is
regularly rejected by the Court. The latter reserves the right to separate the legal aspects from
the political ones; the fact that a dispute under international law usually also has broader
political aspects does not prevent the ICJ from deciding it on the basis of international law.

ICJ - Conduct of Proceedings - Proceedings may be conducted in the absence of a party. For
example, Iran in the Tehran hostage case and the U.S. in the Nicaragua case boycotted the
proceedings

ICJ - Incidental Proceedings -Incidental proceedings are separate interlocutory or special

proceedings that do not involve the litigation on the merits, but only ancillary issues. In addition
to the aforementioned procedural objections as well as counterclaims, there are other such
interlocutory proceedings. One is the determination of the need for precautionary measures to
protect the rights of the parties, which the ICJ may designate at the request of a party or on its
own motion. In the LaGrand case, the ICJ clarified that its decisions on such measures are
binding on the parties to the dispute.

ICJ Assessment - By the end of 2012, the list of cases and advisory opinions included 152 entries
of which, however, not all were finalized. 11 cases were pending. at the outset of its activities,
the Court was not involved in rule

cases of major political significance. When this was the case, as in the Corfu case, the Tehran
hostage case and the Nicaragua case, the losing party ignored the ruling, at least initially. In
addition to the fundamental rejection by the socialist states, the ICJ is currently in particular
disrepute in developing countries, especially after its decision in the Southwest Africa case.
-
Responsibility under international law - Attribution through the organs of the violator -
Furthermore, the conduct of private individuals is attributable to a state if the state clearly and
unambiguously approves of the conduct and recognizes it as its own. In the Tehran hostage case,
for example, the ICJ held Iran responsible not only for failing to prevent the storming of the U.S.
embassy building by armed protesters and the taking of personnel hostage, but also for the fact
that this action was subsequently clearly and unambiguously approved and endorsed by leading
Iranian politicians in public.

International Law Tort - Continuous Tort - The continuous tort, i.e., the violation of a
Verpflichtung of a continuing character, in which the violation of the law exists as long as the
unlawful nature exists. Only in the case of permanent offenses does the Verpflichtung come to an
end of the violation of the law.

Responsibility under International Law - Reparation and Causation - Interdependent causalities

between several states or between a state and individuals rarely affect the basic reparation
pflicht in practice. This is particularly relevant in the case of Vlertzung von
Verhinderungspflichten. For example, in the Corfu Canal case, the ICJ held Albania responsible
for all the damage caused by the floating mines, even though the mines had been laid by
Yugoslavia (similar to the Tehran Hostage Case).

Pflicht zur Wiederherstellung des Zustandes vor der Rechtsverletzung - Release of persons - If
restoration of the previous condition is possible, the infringer has the Pflicht to release

Mixed Claims Commissions - Such institutions have also recently regained increased importance.
For example, after the hostage affair, the U.S. and Iran, through Algeria's mediation, established
the IRAN-US CLAIMS TRIBUNAL, which has already adjudicated several hundred cases, mainly
involving expropriations in violation of international law in the wake of the Islamist revolution.
Another example is the UN Compensation Commission, an auxiliary body of the UNSC to pursue
claims by individuals against Iraq arising from Iraq's 1990 invasion of Kuwait. To date, the UNCC
has handled 2.7 million claims for compensation, of which it has recognized 1.54 million as
legitimate. The total amount of compensation awarded is approximately USD 52.4 billion. Mixed
arbitration is now a distinct form of dispute resolution or law enforcement between individuals
and states, which has become firmly established, particularly in international investment law.

Countermeasure - It may not interfere with Verpflichtung of peaceful dispute resolution as well
as certain areas of diplomatic inviolability. In the Tehran Hostage Case, the ICJ has not
overlooked the norms of international law that give special legal status to

of diplomatic and consular representatives as a closed system that contains its own legal
consequences for its violation.

2.8 Air Service Agreement Case (USA/FR), Arbitration Award (1978)

In 1946, the U.S. and France concluded an agreement on the distribution of air service quotas
between the two countries. In the spring of 1978, Pan American World Airways began flying to
Paris via London, changing planes in London. In France's view, this was a violation of the
Convention, since the quotas would have been agreed only for direct flights, and Pan Am was
now unlawfully operating flights between London Paris. The French aviation authority therefore
forced Pan Am to stop the flights after a short time. The U.S. protested, since in its opinion the
agreement also permitted flights via third countries, and referred to the practice in this regard.
As a result of Rankriege's behavior, the U.S. felt empowered to take reprisals:
First, French airlines were ordered by the U.S. Federal Aviation Administration to register all
future flights within a short period of time.
At the same time, there was a threat to ban Air France flights between Los Angeles and Paris via
Montreal. Even before this measure was implemented, the case was submitted to the arbitration
court by mutual agreement.
The arbitration court considered the design of the flight route via third countries to be covered
by the treaty and practice.

2.9 International Tin Council Case, House of Lords (1989)

The International Tin Agreement of 1981 is a commodity agreement that provides for the
establishment of a compensatory stockpile. The International Tin Council was tasked with
managing the compensatory stockpile and, in particular, counteracting a drop in tin prices on
world markets through intervention purchases. When tin prices continued to fielen despite the
ITC's continued intervention purchases, the ITC became insolvent in 1985. Creditors then sought
to recover their claims against the ITC by suing member countries. They claimed that the ITC
had no legal personality but acted only on behalf of the member states, or that they were liable
in addition to the ITC. Both the Tin Agreement and the Headquarters Agreement grant legal
personality to the ITC. The appeal to these treaties was rejected because they had not been
incorporated into English law. However, mainly on the basis of a decree which also granted the
ITC legal personality as a legal entity, the liability of the co-jurisdictional states was unanimously
denied. The claim of the plaintiffs that there is a general rule of international law according to
which the member states of an international organization are subsidiarily liable for its
commercial activities was rejected.

3 Law of War and Humanitarian Law

3.1 Nuclear Weapons Advisory Opinion, Advisory Opinion ICJ (1996)
In a resolution adopted in December 1994, the General Assembly requested the ICJ to issue an
advisory opinion pursuant to Art 96 (1) UNC on the following question: "Is the threat or use of
nuclear weapons permitted under international law in all circumstances?"
After application of the international law of treaties and customary law the Court came to the
conclusion that although there is a trend towards an absolute prohibition of the threat with or
the use of nuclear weapons, which is in principle rw its, because these

weapons also act indiscriminately against civilians and cause unnecessary suffering. Under
current international law, however, there is not yet an exceptionless prohibition according to
which nuclear weapons may not be used even in self-defense, primarily because of the attitude
of the nuclear weapons powers.
Examples of non liquet exist in international law. For example, in the 1996 Nuclear Weapons
Advisory Opinion, the ICJ stated that at the given time it cannot be determined whether an
absolute prohibition on nuclear weapons exists even when the need for self-defense to ensure
the survival of a state arises.

3.2 Tadic case

Dusko Tadic, a former citizen of Yugoslavia of Serbian descent, was accused of participating in
the murder, persecution, and expulsion of Bosnian Muslims and Croats, as well as aiding and
abetting genocide in the Prijedor region of Bosnia between May and December 1992. Tadic floh
from Bosnia-Herzegovina and went into hiding in Germany, where he was arrested in 1994 and
transferred to The Hague to face the ICTY. In doing so, the Tribunal had to consider, inter alia,
the applicability of the rules governing international or non-international armed conflicts in
light of customary international law and common Art 3 of the CC 1949. In its decision, the
Appeals Chamber noted in an almost revolutionary manner that the regulatory complexes for
non-international armed conflicts are in many
areas are congruent with those of international armed conflicts. Furthermore, the Appeals
Chamber found that serious violations of international humanitarian law are
in non-international armed conflicts could also entail individual responsibility.

Example of the role of the individual in international law - The law of war and international
humanitarian law, codified since the 19th century, serves to protect the individual. The Tadic
case before the ICTY was the first to confirm that the applicability of different regimes to
international and non-international armed
conflicts is untenable in light of the regulatory purpose of international humanitarian law.

Law of War and Humanitarian Law - The Tadic case postulated a uniform Konflikt concept,
according to which there is an armed Konflikt. At the international level, too, it makes sense to
refer to structured hostilities with an operational context and territorial control, because it
hardly makes sense to set the threshold lower than in the non-international sphere.