Important Case Laws of Public International Law: Lecture Notes

About this topic

Landmark cases of public international law, arranged around the sources of international law and the law of treaties: international custom (general, regional and local), general principles of law, acquiescence and estoppel, good faith performance of treaties (pacta sunt servanda), reservations, treaty interpretation, and consular access. Each case is set out by facts, issues, arguments, judgment, principle, significance and exam points.

The Case of the S.S. Lotus (France v. Turkey)

Background: international custom as a source

International custom is the second source of international law and the oldest source. Basic rules such as the immunity of ambassadors and the freedom of the high seas began as custom.

Article 38 describes it as "international custom, as evidence of a general practice accepted as law".

Facts

• On 2 August 1926, a French mail steamer, the Lotus, collided on the high seas with a Turkish ship.
• The Turkish ship sank and eight Turkish nationals died.
• When the Lotus reached Constantinople (now Istanbul), Turkey prosecuted the French officer of the watch, Lieutenant Demons.
• Turkey tried him and sentenced him to a short term of imprisonment and a fine.
• France said Turkey had no jurisdiction over him.

Issues

• Can one country try a foreign officer for an accident that happened far out at sea?
• Did international law contain a rule giving exclusive criminal jurisdiction to the flag State, so that Turkey acted unlawfully?
• Did the rarity of prosecutions by States other than the flag State prove a customary rule?

The dispute was, at its core, about permission under international law.

Arguments

• France: only the flag State could try the officer; France wanted a rule giving exclusive criminal authority to the French flag State. It pointed out that such prosecutions had almost never been brought except by the flag State.
• Turkey: the deaths aboard the Turkish ship gave it a basis to act.

Judgment (held)

The Permanent Court decided for Turkey in 1927, after a 6 to 6 split, by the casting vote of its President, Max Huber. It held that Turkey had not broken international law.

1. Restrictions on States cannot be presumed. France had to prove a rule forbidding Turkey to act. The Court looked for a rule that actually barred Turkish jurisdiction, and did not accept mere silence or the small number of earlier prosecutions as proof of that rule.
2. Rarity of prosecutions does not prove a legal duty. The Court said that only if such abstention were based on States being conscious of having a duty to abstain would it be possible to speak of an international custom.
3. Effects on the Turkish ship. The effects of the offence were felt on the Turkish ship, which the Court treated like Turkish territory.

Principle / ratio

Limits of the Lotus approach

• The older Lotus approach to permission must not be treated as a free pass for every act by every State. A State cannot enforce its laws by entering another State's territory without permission.
• The particular sea-collision result must be separated from present treaty law. Article 97 of the Law of the Sea Convention now limits criminal or disciplinary proceedings for a collision on the high seas to the flag State or the State of nationality of the person concerned.

Significance

Lotus explains why legal restrictions on States must be proved. It also teaches a vital warning: later treaties can replace the result of an older judgment.

Exam points

• Permanent Court; judgment 1927; 6 to 6 split decided by the casting vote of President Max Huber.
• Officer prosecuted: Lieutenant Demons; collision on 2 August 1926; eight Turkish nationals died.
• Mere abstention is not custom; abstention must be based on a consciousness of a duty to abstain.
• The collision rule has since been changed by Article 97 of the Law of the Sea Convention (flag State or State of nationality only).

North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. the Netherlands)

This is the leading case on how custom is formed.

Facts

• The coast of Germany curves inwards between Denmark and the Netherlands.
• Article 6 of the Geneva Convention on the Continental Shelf, 1958, gave the rule: unless the parties agreed otherwise or special circumstances justified another line, the boundary should be the equidistance line, every point of which is equally distant from the two coasts.
• On a concave coast like Germany's, the two equidistance lines would meet a relatively short distance from the coast and squeeze Germany into a small triangle of the rich seabed.
• Germany had signed the Convention but never ratified it.

Issues

• Should a country get less seabed simply because its coastline curves inward?
• Was Germany bound by the equidistance rule, not as treaty law, but because it had become customary international law?

Arguments

• Denmark and the Netherlands: the distance-based (equidistance) method should govern; the rule had become customary law, binding Germany anyway.
• Position of Germany: Germany was not bound by the Convention as a treaty, since it had signed but never ratified it.

The real issue became whether so many States had used that method as law that it had grown into custom.

Judgment (held)

The Court, in 1969, by 11 votes to 6, rejected the argument. The equidistance rule was not custom when the Convention was drafted, and it had not become custom since.

When a treaty rule can pass into general (customary) law

1. The provision must be of a fundamentally norm-creating character.
2. Very widespread and representative participation in the convention might suffice, provided it includes the States whose interests are specially affected.
3. Time: even a short time may be enough, but within it, State practice, including that of specially affected States, must be extensive and virtually uniform.
4. The practice must show a general recognition that a rule of law is involved (opinio juris).

Why Article 6 failed these tests

• It was subject to agreement and to special circumstances.
• The Convention even allowed reservations to it.
• All this cast doubt on its norm-creating character.

Opinio juris

Most importantly, the Court insisted on opinio juris. Not only must the acts amount to a settled practice; they must also show a belief that the practice is rendered obligatory by a rule of law. The frequency, or even habitual character, of the acts is not in itself enough, since many acts, like ceremonial and protocol, are done only out of courtesy, convenience or tradition.

How the boundaries were to be settled

• The boundaries must be settled by agreement, in accordance with equitable principles.
• Each party should keep, as far as possible, the areas that form the natural prolongation of its land territory under the sea.
• The parties later agreed boundaries that gave Germany a larger share.

Principle / ratio

Significance

The lasting value of North Sea is its careful test for customary international law. It requires evidence, not an assumption that frequent behaviour has become binding law. It also shows why countries whose coastlines are directly affected by a rule (specially affected States) deserve special attention when practice is assessed.

Exam points

• Leading case on the formation of custom and on opinio juris.
• 1969; 11 votes to 6; Article 6 of the 1958 Geneva Convention on the Continental Shelf.
• Four tests: norm-creating character; widespread and representative participation including specially affected States; extensive and virtually uniform practice (even a short time may do); general recognition that a rule of law is involved.
• Courtesy, convenience, tradition, ceremonial and protocol do not create custom.

The Asylum Case (Colombia v. Peru)

This is the leading case on regional custom.

Background: regional custom

A regional custom is a legal rule shown by the practice of a group of countries, together with their belief that the practice is required by law. It cannot be proved by friendship, convenience or occasional arrangements. The State claiming the rule must show a clear and consistent practice, and explain why the other State is legally bound.

Facts

• In October 1948, a military rebellion broke out in Peru. Peru charged Victor Raul Haya de la Torre, the leader of a political party, with military rebellion.
• In January 1949, he took refuge in the Colombian embassy in Lima.
• Colombia granted him diplomatic asylum, declared him a political offender, and asked Peru for a safe-conduct to let him leave the country. Peru refused.

Issues

• Can an embassy declare that a person is a political offender and force the country around it to accept that decision?
• Was Peru bound to give a safe-conduct for him to leave?

These were distinct legal claims, and the Court assessed the proof for each.

Arguments

• Colombia (protecting the person inside its embassy) claimed that it alone could decide whether his offence was political, and that this bound Peru. It relied on Latin American treaties and on a regional custom of the American States. It also wanted a safe route for him to leave.
• Peru was the State on whose territory the embassy stood; it refused the safe-conduct.

Judgment (held)

The Court, in 1950, rejected Colombia's claim.

1. The party relying on such a custom must prove that it has become binding on the other party. It must show a constant and uniform usage practised by the States in question, expressing a right of the State granting asylum and a duty of the territorial State.
2. The Court found so much uncertainty and contradiction, so much fluctuation and discrepancy, and so much political expediency in the practice, that no such usage was proved.
3. Even if a regional custom existed, Peru had repudiated it by refusing to ratify the Montevideo Conventions of 1933 and 1939, which first contained such a rule.
4. Nor was Peru bound to give a safe-conduct, since it had not asked him to leave.

In a later judgment of 1951, the Court said that Colombia need not hand him over, but the asylum ought to end. He finally left the embassy in 1954.

Principle / ratio

Significance

The Asylum judgment shows that even a regional rule needs strict proof. Human sympathy and diplomatic convenience cannot replace evidence of a legal duty.

Exam points

• Leading case on regional custom; judgment 1950; follow-up judgment 1951; Haya de la Torre left the embassy in 1954.
• Test: constant and uniform usage expressing a right of the asylum State and a duty of the territorial State.
• A State that repudiates a rule (here, by not ratifying the Montevideo Conventions) is not bound by it as regional custom.

Case concerning Right of Passage over Indian Territory (Portugal v. India)

Background: local custom

Custom need not be universal. A regional custom may bind a group of States, like the States of Latin America, and a local custom may bind only two States. This case matters especially to Indian students because India was a party.

Facts

• Portugal held Daman, on the west coast of India, and two small enclaves inland, Dadra and Nagar Haveli, entirely surrounded by Indian territory.
• For well over a century, under the British and then independent India, Portuguese officials and goods had crossed Indian territory to reach the enclaves.
• In July and August 1954, supporters of union with India overthrew Portuguese rule in the enclaves, and India refused passage to Portuguese officials and forces.
• Portugal went to the International Court, claiming a right of passage.

Issues

• Can a long practice between only two countries become an enforceable rule of international law? (The answer given is yes.)
• To which categories of persons and goods did any right of passage extend?
• Had India acted contrary to its obligations in 1954?

Judgment (held)

The Court gave its judgment on the merits in 1960.

1. Portugal had a right of passage for private persons, civil officials and goods in general, to the extent necessary for its sovereignty over the enclaves, but subject to India's regulation and control. The basis was a local custom between just two States. The Court found it difficult to see why the number of States forming a local custom on the basis of long practice must necessarily be larger than two.
2. Portugal had no such right for armed forces, armed police, arms and ammunition, because their passage had needed permission, and a practice of asking permission shows no right.
3. India had not acted contrary to its obligations, given the tension in 1954.

The Court added that a clearly established particular practice between two States prevails over general rules.

Category	Past practice	Result
Private persons, civil officials, goods in general	Long moved under an accepted practice	Right of passage existed, to the extent necessary, subject to India's regulation and control
Armed forces, armed police, arms and ammunition	Passage had needed permission	No right of passage

Principle / ratio

The Court did not treat every movement in the same way; the difference between civil traffic and soldiers and weapons mattered more than a broad claim that Portugal must have complete access to its enclaves. India still had power to regulate movement across Indian territory.

A right to cross another State's territory does not transfer sovereignty over the route. It only permits the kinds of passage proved by law, with the conditions that the law allows. The Court examined the history rather than assuming a general unlimited right.

Later developments

In 1961, Dadra and Nagar Haveli became part of India by a constitutional amendment. Today they form part of the Union territory of Dadra and Nagar Haveli and Daman and Diu.

Significance

Right of Passage is essential for Indian students because it proves that a bilateral custom is possible, yet must be defined by its precise history and conditions.

Exam points

• Local custom between two States is possible.
• Practice of asking permission shows no right.
• Particular practice between two States prevails over general rules.
• Merits judgment 1960; enclaves merged with India by constitutional amendment in 1961.

The Corfu Channel Case (United Kingdom v. Albania)

Background: general principles of law

The third source is the general principles of law recognised by civilised nations. They exist because treaties and custom cannot cover everything. When there is a gap, a court should not declare non liquet (that is, "the law is not clear") and refuse to decide. Instead, it may borrow principles common to the main legal systems of the world, such as good faith and estoppel.

Facts

• The Corfu Channel is a narrow strait between the Greek island of Corfu and Albania, partly in Albanian waters and used for international navigation.
• On 22 October 1946, four British warships sailed through it. Two destroyers, the Saumarez and the Volage, struck mines.
• Forty-four British sailors died and forty-two were injured.
• In November, the British navy swept the channel for mines, inside Albanian waters, without Albania's consent.
• Britain sued Albania for the damage.

Issues

• What happens when a country knows that deadly mines threaten ships near its coast but does not warn them? Was Albania responsible?
• Did the British passage of 22 October violate Albanian sovereignty?
• Did the later British minesweeping violate Albanian sovereignty?

Judgment (held)

The Court gave its judgment on the merits in April 1949.

Question	Vote	Holding
Albania's responsibility for the explosions	11 votes to 5	Albania was responsible
British passage on 22 October 1946	14 votes to 2	Did not violate Albanian sovereignty
British minesweeping in November	Unanimous	Violated Albanian sovereignty

1. Albania's responsibility (11 votes to 5)

• There was no direct proof that Albania had laid the mines. But it kept a close watch over the channel, so the minelaying could not have happened without its knowledge.
• The Court said that such indirect, or circumstantial, evidence is admitted in all systems of law, especially where the other State has exclusive control of the territory.
• Albania's duty to warn ships came not from a treaty but from certain general and well-recognised principles:
  • elementary considerations of humanity, even more exacting in peace than in war;
  • the freedom of maritime communication;
  • every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.

2. The passage of 22 October (14 votes to 2)

The passage did not violate Albanian sovereignty. In peacetime, warships have a right of innocent passage through straits used for international navigation.

3. The minesweeping (unanimous)

The later minesweeping did violate Albanian sovereignty. The Court rejected the claimed right of intervention as the manifestation of a policy of force, and said its own declaration was enough satisfaction.

Compensation

Later in 1949, the Court ordered Albania to pay 843,947 pounds.

Principle / ratio

Two distinctions are important: the Court did not find direct proof that Albania itself planted the mines, but relied on close surveillance and the duty to warn; and it examined Britain's two acts separately, namely the passage through the strait and the later mine clearance without consent.

Significance

Corfu Channel teaches two duties together: States must take due care for others, and even a powerful State must respect the sovereignty of another country.

Exam points

• Example of general principles of law as a source; non liquet is to be avoided.
• Three holdings with three different votes: 11 to 5, 14 to 2, unanimous.
• Innocent passage of warships through international straits in peacetime.
• Self-help intervention rejected as a policy of force; declaration as satisfaction.

Case concerning the Temple of Preah Vihear (Cambodia v. Thailand)

This case teaches acquiescence and estoppel.

Background: acquiescence and estoppel

Acquiescence	Estoppel
Acceptance shown by conduct, including silence in the right circumstances, when an objection should reasonably have been made.	A party may be stopped (prevented) from denying a position it previously accepted and on which it has earlier acted.

A country's silence can have legal consequences when it knew of a boundary claim and had a fair opportunity to object. Neither principle turns every failure to protest into agreement. Knowledge, a reason to speak and the conduct over time are important.

Facts

• Preah Vihear is an ancient temple of Lord Shiva on a cliff top on the border between Cambodia and Thailand.
• In 1904, France (which then controlled Cambodia) and Siam (as Thailand was then called) agreed that the boundary there would follow the watershed line.
• French officers later prepared a map placing the temple on the Cambodian side.
• Siam received and used the map and raised no objection for about fifty years.
• In 1930, a Siamese prince even visited the temple, where the French official of the province received him.
• After Cambodia became independent, Thailand occupied the temple.

Issues

• Can fifty years of acceptance stop a country from rejecting an old boundary map?
• Could Thailand plead error in the map?

Arguments

• Thailand: the true watershed (the line dividing water flowing in different directions) placed the temple in Thailand, and the map was wrong.
• Cambodia: relied on the map and the conduct following it.

Judgment (held)

1. The Court, in 1962, by 9 votes to 3, held that the temple was in Cambodian territory and that Thailand must withdraw its forces.
2. Even if the map departed from the watershed, Thailand had accepted it by its conduct. The Court considered the long absence of protest when Siam had received and used the map, and the wider history of acceptance.
3. The Court applied the maxim qui tacet consentire videtur si loqui debuisset ac potuisset: he who keeps silent is taken to consent, if he ought to have spoken and was able to.
4. Having enjoyed a stable frontier for fifty years, Thailand could not now deny the map.
5. Nor could it plead error. Such a plea cannot be allowed if the party making it contributed to the error by its own conduct, or could have avoided it, or was put on notice.
6. By 7 votes to 5, Thailand was also ordered to return objects taken from the temple.

In 2013, interpreting this judgment, the Court held that Cambodia has sovereignty over the whole promontory of Preah Vihear. This later interpretation judgment clarified the area covered by the original decision.

Principle / ratio

Significance

Preah Vihear remains a striking example of how trust, conduct and settled frontiers matter in international law, and why decades of diplomatic conduct matter.

Exam points

• 1904 boundary agreement (watershed); 1930 visit of a Siamese prince; judgment 1962 (9 to 3; 7 to 5 on return of objects); interpretation judgment 2013 (whole promontory).
• Plea of error is barred where the party contributed to the error, could have avoided it, or was put on notice.
• Not every silence is consent.

Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal)

Background: pacta sunt servanda

The central treaty rule is good faith. Article 26 says that every treaty in force is binding upon the parties to it and must be performed by them in good faith. This is pacta sunt servanda, the foundation of the law of treaties.

Facts

• Hissene Habre was the President of Chad from 1982 to 1990. His regime was accused of thousands of killings and widespread torture.
• After he was overthrown, he fled to Senegal.
• Victims filed complaints in Senegal, but in 2000 and again in 2001, the Senegalese courts held that they had no jurisdiction.
• Victims then turned to Belgium. In 2005, a Belgian judge issued an international arrest warrant, and Belgium asked Senegal to extradite him.
• For years, Senegal neither tried nor extradited him.
• Both States are parties to the Convention against Torture of 1984.

The relevant treaty provisions

• Article 6(2) requires an immediate preliminary inquiry in the circumstances described by the treaty.
• Article 7(1) deals with a State in whose territory an alleged torturer is found. If it does not extradite him, it must submit the case to its competent authorities for prosecution.

Issues

• Can a State avoid its duty to act against alleged torture by saying that its courts or budget are not ready?
• Could Belgium sue Senegal at all?
• From when did the duty apply?

Arguments

• Belgium: the Convention against Torture imposed clear duties on Senegal because the former leader was in Senegal.
• Senegal: raised questions about its courts and resources.

The Court examined duties under the Convention rather than deciding whether every allegation of wrongdoing was true.

Judgment (held)

The Court gave its judgment in July 2012.

1. Standing: Belgium could sue. The obligations under the Convention are obligations erga omnes partes, owed by each party to all the others, since all share a common interest in preventing torture.
2. Breach: Senegal had breached its duty to make an immediate preliminary inquiry and its duty to submit the case for prosecution. Extradition is an option, but prosecution is an international obligation.
3. No excuse: Senegal could not excuse its delay by its internal law, as Article 27 makes clear, or by its financial difficulties.
4. Non-retroactivity: the duty covered only acts committed after the Convention came into force for Senegal, in June 1987.

The Court ordered Senegal to submit the case for prosecution without further delay, if it did not extradite him.

Aftermath

Senegal then set up special chambers with the African Union. In May 2016, they convicted Habre of crimes against humanity, war crimes and torture, and sentenced him to life imprisonment.

Principle / ratio

Significance

States sharing a human rights treaty have a common legal interest in compliance. The duty is to take lawful action, not to promise a particular verdict.

Exam points

• Article 26 (pacta sunt servanda) and Article 27 (internal law no excuse).
• Obligations erga omnes partes give every party standing.
• Non-retroactivity: Convention in force for Senegal from June 1987.
• Habre convicted in May 2016 by special chambers set up with the African Union; life imprisonment.

Reservations to the Genocide Convention (Advisory Opinion)

Background: reservations

A State that likes most of a treaty but objects to one article need not reject the whole treaty. It may make a reservation.

Reservations help more States to join a treaty, but at the cost of uneven application. The law therefore balances the integrity of a treaty against its universality.

Facts

• The old rule was unanimity: a reservation was valid only if every other party accepted it. Some governments preferred this old rule.
• The General Assembly asked the International Court for legal guidance (an advisory opinion), rather than one State suing another.

Issue

Can a country join a major human rights convention while refusing one part of it, even if some parties object to its reservation?

Opinion (held)

• The International Court gave the opinion in 1951, by 7 votes to 5.
• A State can still be a party even if some parties object to its reservation.
• But the reservation must be compatible with the object and purpose of the Convention.
• The Court paid special attention to the purpose of the Genocide Convention and the need for widespread participation in it: the Convention was meant to be universal, and its purpose was purely humanitarian.
• This compatibility test was later written into the Vienna Convention (Article 19).

Principle / ratio

The Vienna Convention rules on reservations

Article 19: when a reservation may be formulated

A State may formulate a reservation, except in three cases:

1. the treaty prohibits it;
2. the treaty allows only specified reservations, and this is not one of them;
3. it is incompatible with the object and purpose of the treaty.

Articles 20 and 21: acceptance and objection

Situation	Effect
Reservation expressly authorised by the treaty (Article 20)	Needs no acceptance
Other reservations (Article 20)	Other parties may accept or object; a party raising no objection within twelve months is treated as accepting it
Between the reserving State and an accepting State (Article 21)	The provision applies as modified, for both of them (reciprocity)
Objecting State that does not oppose entry into force between them (Article 21)	The provisions concerned do not apply between the two, to the extent of the reservation

Significance

The opinion balances two needs: broad treaty membership and protection of the treaty's essential purpose. It is a central starting point for studying reservations.

Exam points

• Advisory opinion, 1951, 7 votes to 5; ended the unanimity rule.
• Definition in Article 2(1)(d); three bars in Article 19; twelve-month rule in Article 20; reciprocity in Article 21.
• Rome Statute permits no reservations.

Whaling in the Antarctic (Australia v. Japan, New Zealand intervening)

Background: the general rule of interpretation (Article 31)

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

• Context includes the text, the preamble and the annexes, and related agreements made by all the parties.
• Together with the context, account is taken of any subsequent agreement between the parties on its interpretation, and any subsequent practice showing their agreement on it.
• Any relevant rules of international law applicable between the parties must also be considered.
• A term is given a special meaning if it is established that the parties so intended.

Facts

• The International Convention for the Regulation of Whaling was signed in 1946.
• Since the 1980s, its Schedule has imposed a moratorium (a halt) on commercial whaling.
• Article 8 allows a State to grant special permits to kill whales for purposes of scientific research.
• From 2005, Japan ran its second Antarctic whale research programme, planning to kill hundreds of whales a year, and the meat was sold.
• Australia said this was commercial whaling in disguise. New Zealand intervened as a fellow party to the Convention.

Issue

If a government calls an activity science, must a court accept that label without checking the facts? The legal question was not whether science can ever involve killing whales, but whether the scale and methods of this particular programme were reasonable in relation to its stated research aims.

Arguments

• Japan: relied on the Article 8 exception allowing special permits for scientific research.
• Australia: challenged whether the design and operation of the Japanese programme fitted that purpose.

Judgment (held)

• The Court, in March 2014, by 12 votes to 4, held that the permits were not granted for purposes of scientific research.
• It did not define scientific research in the abstract. It asked whether the design and implementation of the programme were reasonable in relation to its stated scientific objectives.
• Findings: Japan had not properly considered non-lethal methods; its sample sizes were not justified; it killed far fewer whales than planned; and the programme produced little science.
• So Japan had breached the moratorium. The Court ordered it to revoke the permits and grant no more under that programme.

Japan later withdrew from the Convention, with effect from 30 June 2019, and resumed commercial whaling in its own waters.

Principle / ratio

Significance

Whaling shows that treaty exceptions must be supported by facts. Good faith interpretation keeps the exception from defeating the protection promised by the rule.

Exam points

• Article 31 general rule of interpretation and its elements.
• 1946 Convention; moratorium since the 1980s; Article 8 special permits.
• Test: reasonableness of design and implementation in relation to stated objectives.
• Japan withdrew with effect from 30 June 2019.

Pulp Mills on the River Uruguay (Argentina v. Uruguay)

Background: interpretation with general international law

Article 31 of the Vienna Convention requires the ordinary meaning of treaty words to be understood in their context and in the light of the treaty's object and purpose. It also asks decision-makers to consider relevant rules of international law that apply between the treaty parties. This matters when a treaty about a shared river is read together with modern environmental duties.

The law can require a government to assess possible harm, inform its neighbour and consult before it acts. These duties are not necessarily the same as the duty to prevent actual damage. A country may breach the procedure even when an alleged environmental injury has not been proved.

Facts

• The River Uruguay forms part of the boundary between Argentina and Uruguay.
• Their Statute of the River Uruguay, 1975, set up a joint commission. It required a party planning any work liable to affect the river to inform the commission and, through it, the other State.
• Uruguay authorised two large pulp mills on its bank, one of which began operating in 2007.

Issues

• Must a country wait until a shared river is polluted before it asks its neighbour to consult about a new factory?
• Did Uruguay breach its procedural obligations (to inform)?
• Did Uruguay breach its substantive obligations (to protect the river)?

Arguments

Argentina complained about two different matters: (1) Uruguay had not informed it as required, that is, the process Uruguay followed before authorising the mills; and (2) the mill was polluting the river.

Judgment (held)

The Court, in April 2010, answered in two parts.

Obligation	Vote	Finding
Procedural (inform the commission and the other State)	13 votes to 1	Breached: Uruguay authorised the mills without informing the commission; this finding was itself enough satisfaction
Substantive (protect the river)	11 votes to 3	Not breached: Argentina had not proved harm to the river

• A precautionary approach does not reverse the burden of proof.
• Most importantly, the Court held that an environmental impact assessment is now a requirement under general international law, and it read the treaty in that light. Such an assessment is needed where a proposed industrial activity may have a significant adverse impact in a transboundary context.

Principle / ratio

Significance

Pulp Mills is vital because it teaches prevention. Good environmental law asks what must happen before harm is done, not only who should pay afterward.

Exam points

• Judgment April 2010; 13 to 1 (procedural breach); 11 to 3 (no substantive breach).
• Environmental impact assessment required under general international law where significant transboundary harm is possible.
• Precautionary approach does not reverse the burden of proof.

The Jadhav Case (India v. Pakistan)

Issue

Does an accusation of spying remove the right of a detained foreign national to receive help from his consulate?

Facts

• Kulbhushan Jadhav, an Indian national, was arrested in March 2016.
• Pakistan said he was caught in Balochistan as a spy and a terrorist; India said he had been abducted from Iran.
• Pakistan did not inform him of his consular rights, failed to inform India without delay, and refused repeated Indian requests for consular access.
• In April 2017, a Pakistani military court sentenced him to death.
• India went to the International Court in May 2017, and within ten days the Court ordered Pakistan not to execute him before its final decision.

The relevant provision

Article 36 of the Vienna Convention on Consular Relations, 1963:

• gives consular officers the right to communicate with and visit their arrested nationals;
• requires the arresting State to inform the detained person of his rights without delay.

Arguments of Pakistan

1. Article 36 does not apply to persons accused of espionage.
2. A bilateral Agreement on Consular Access of 2008 governed instead. That agreement said that in cases of arrest, detention or sentence on political or security grounds, each side may examine the case on its merits.

Jadhav Case (India v. Pakistan)

Issues

India and Pakistan strongly disputed where Kulbhushan Jadhav had been detained and how he came into custody. The International Court of Justice did not decide those disputed events, nor did it decide whether he was guilty of the criminal accusations. It decided only whether Pakistan had obeyed the duties it owed under the consular treaty, the Vienna Convention on Consular Relations.

Pakistan raised two arguments: that Article 36 did not apply to persons accused of espionage, and that a bilateral Agreement of 2008 between the two States cut it down. Both were rejected.

Judgment (held)

The Court, in July 2019, by 15 votes to 1, rejected both arguments.

• Interpretation: the Court interpreted Article 36 under Article 31 of the Vienna Convention on the Law of Treaties. The ordinary meaning of its words contains no exception for espionage, and such an exception would run counter to the purpose of Article 36. The preparatory work confirmed this.
• The 2008 Agreement: it could only confirm, supplement, extend or amplify the Consular Convention, not cut it down.

Pakistan had therefore breached Article 36 in three ways:

1. by not informing Jadhav of his rights;
2. by not informing India without delay; and
3. by denying consular access.

Remedy

The Court required an effective review and reconsideration of his conviction and sentence, with a continued stay of execution. The remedy was meaningful review and reconsideration, not automatic acquittal or release.

Article 36 of the Vienna Convention on Consular Relations

Article 36 protects communication with the consulate. It requires:

• the detained person to be told of his rights;
• the other State to be informed when the Convention requires it; and
• consular officers to be allowed access.

The judgment rejected an unwritten exception for accusations of espionage.

Significance

Jadhav matters because it separates the rights of a detained person from the question of guilt. A trial can be serious and still require consular fairness.

Treaties and Indian Law: The Constitutional Framework

Indian law must be understood alongside treaty duties. India broadly follows the English model.

• Article 51 (Directive Principle): the State shall endeavour to promote international peace and security, and maintain just and honourable relations between nations. It shall also endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another, and encourage settlement of international disputes by arbitration.
• Article 73: the executive power of the Union extends to all matters on which Parliament can make laws.
• Entry 14 of the Union List: covers entering into treaties and agreements with foreign countries and implementing them.
• Article 253: gives Parliament power to make any law for implementing any treaty, agreement or convention, or any decision made at an international conference. Such a law may cover the whole or any part of India, even on a subject in the State List.

Cession and boundaries: two Supreme Court decisions draw the line between giving away territory and settling a boundary.

Berubari case	Maganbhai Ishwarbhai Patel v. Union of India
Ceding Indian territory to another country needs a constitutional amendment.	Settling a disputed boundary is not cession.

Jolly George Varghese v. Bank of Cochin

Key question: can a person be sent to civil prison only because he has not paid money ordered by a court?

This is the classic Indian statement of the dualist position on treaties.

Facts

A court had ordered the arrest and detention of judgment-debtors (persons against whom a civil court has ordered payment) in civil prison under Section 51 of the Code of Civil Procedure, for failing to pay a decree. They relied on Article 11 of the International Covenant on Civil and Political Rights, which says that no one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.

Issue

Whether a court could order detention merely because the debt remained unpaid. The Supreme Court examined both Section 51 of the Code of Civil Procedure and the international protection against imprisonment for an honest inability to meet contractual obligations.

Judgment (held)

The Supreme Court, in 1980, in a judgment by Justice Krishna Iyer:

• held that the Covenant did not by itself override the Code. The positive commitment of the States parties ignites legislative action at home, but does not automatically make the Covenant an enforceable part of the law of India;
• yet read Section 51 in harmony with the Covenant and Article 21;
• a debtor who honestly cannot pay may not be jailed. There must be some bad faith, such as refusing to pay despite having the means.

Principle / ratio

An unincorporated treaty is not directly enforceable, but courts read national law to agree with it wherever possible. India had accepted the Covenant, but a treaty does not automatically erase contrary words in an Indian Act. The Court used the treaty as a guide and interpreted Indian law to avoid an unjust result.

Significance

The judgment is important for both civil procedure and international law. It shows how courts can respect treaty values while applying Indian legislation.

Gramophone Company of India Ltd. v. Birendra Bahadur Pandey

Key question: do goods cease to enter India legally just because they are only travelling through India to another country?

This case sets out the Indian doctrine of incorporation. The constitutional background (Article 51, Article 73 and Entry 14 of the Union List) is set out above.

Facts

• A consignment of pre-recorded music cassettes was shipped from Singapore to Nepal. Nepal is landlocked, so the goods landed at the port of Calcutta, to cross India by land.
• The Gramophone Company, which held the copyright, said the cassettes were pirated. It asked the Registrar of Copyrights to order, under Section 53 of the Copyright Act, 1957, that these infringing copies shall not be imported into India.
• The importers replied that goods merely in transit are not imported, relying on India's transit treaty with Nepal and the international convention on the transit trade of landlocked States.
• The Calcutta High Court agreed with the importers.

Issue

The meaning of "import" under the Indian Copyright Act, and how that law related to international principles favouring transit.

Judgment (held)

The Supreme Court, in 1984, in a judgment by Justice Chinnappa Reddy, reversed the High Court.

• The rules of international law may be received into national law where they do not conflict with an Act of Parliament.
• Comity of nations or no, municipal law must prevail in case of conflict; national courts cannot say yes if Parliament has said no.
• But courts must, within legitimate limits, interpret a statute so as to avoid confrontation with the comity of nations or well-established principles of international law.
• Here there was no conflict. Goods in transit are brought into India, and the transit arrangements themselves allowed India to protect copyright. So the Registrar could bar their import.

Principle / ratio

International law is part of Indian law unless a statute conflicts with it, and statutes are read in harmony with it.

Exam points

Gramophone Company provides an exam-ready balance: respect international custom and treaties through interpretation, but do not let interpretation defeat a clear law of Parliament.

Vellore Citizens Welfare Forum v. Union of India

Key question: can a profitable factory continue to poison the water used by nearby families simply because it creates jobs?

This case brought international environmental principles into Indian law through custom.

Facts

Hundreds of tanneries in Tamil Nadu were discharging untreated effluent into the Palar river, the main source of drinking water in the area. The Supreme Court faced the task of balancing economic work with environmental protection.

Judgment (held)

The Supreme Court, in 1996, in a judgment by Justice Kuldip Singh, held:

• Sustainable development, the balance between ecology and development, is part of customary international law.
• The precautionary principle and the polluter pays principle are its essential features.
• These principles are part of Indian environmental law, supported by Articles 21, 47, 48A and 51A(g) of the Constitution.
• Under the precautionary principle, the burden lies on the industrialist to prove that his activity is environmentally benign.
• The Court directed the Centre to set up an authority to tackle the pollution.
• It fined each tannery in the five districts concerned 10,000 rupees.

The two principles explained

Precautionary principle	Polluter pays principle
A lack of full scientific certainty should not be used as a reason for delaying preventive action where serious environmental danger exists. Precaution comes before damage becomes certain.	The person causing pollution should bear the cost of addressing it (the cost of harm and restoration), rather than shifting the burden to the public.
The burden lies on the industrialist to prove that the activity is environmentally benign.	Responsibility of the polluter for damage already done.

The Court linked environmental protection to Article 21 and to the environmental duties in the Constitution.

Principle / ratio

Rules of customary international law not contrary to municipal law are deemed to be incorporated into domestic law, and courts shall follow them.

Significance

Vellore shows how international environmental ideas can strengthen Indian constitutional law. Development and clean water must be considered together.

Vishaka v. State of Rajasthan

Key question: what can a court do when serious workplace harassment violates basic rights but Parliament has not yet made a detailed law?

The constitutional framework (Article 51, Article 73, Entry 14 of the Union List and Article 253) and international equality guarantees mattered here.

Facts

• Bhanwari Devi, a social worker in a village of Rajasthan, working under a government programme against child marriage, was allegedly gang-raped because of her work.
• Women's groups, including Vishaka, filed a writ petition, at a time when India had no law against sexual harassment at the workplace.
• The Supreme Court did not decide a criminal trial against the alleged attackers in this public-interest case. It examined the legal duty to protect women from sexual harassment in workplaces.

Judgment (held)

The Supreme Court, in 1997, in a judgment by Chief Justice J. S. Verma:

• held that such harassment violates Articles 14, 15, 19(1)(g) and 21 (equality under Articles 14 and 15, freedom to work under Article 19, dignity under Article 21);
• relied on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which India had ratified in 1993;
• said that any international convention not inconsistent with the fundamental rights and in harmony with their spirit must be read into these provisions to enlarge their meaning and content;
• also relied on Article 51(c), Article 253 and Entry 14 of the Union List;
• laid down the Vishaka Guidelines, binding as law declared under Article 141 until Parliament legislated.

Parliament did so in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The guidelines were a temporary legal framework until Parliament made a statute; the 2013 Act now supplies the main statutory process.

Principle / ratio

A treaty, even if not incorporated, may be read into fundamental rights to fill a gap. CEDAW was used because its principles were consistent with fundamental rights.

Significance

Vishaka shows the courts protecting fundamental rights while waiting for legislation, and using international human rights standards responsibly.

Chairman, Railway Board v. Chandrima Das

Key question: does the right to life under the Indian Constitution disappear when the victim is a visitor from another country?

Background: rights of persons

• The Indian Constitution protects some rights only for citizens, but Article 21 uses a wider word: person. It protects life and personal liberty, and does not say that a foreign visitor is outside its protection.
• Article 14 also guarantees equality before the law to persons.
• An advocate may sometimes approach a constitutional court to seek protection for a person who cannot easily do so herself.
• Article 226 allows a High Court to issue appropriate directions and orders, including public-law relief in suitable cases.
• International human rights declarations may help a court explain dignity and equality, but they do not replace the Constitution or create a different trial process.

Facts

In February 1998, Hanufa Khatun, a woman from Bangladesh, was gang-raped by several men, including railway employees, in a room of the Yatri Niwas at Howrah station. Chandrima Das, an advocate, filed a petition, and the Calcutta High Court awarded the victim compensation of 10 lakh rupees. The Railway Board appealed.

Arguments of the Railway Board

1. A claim for damages could not be decided in writ proceedings.
2. An advocate had no standing to bring it.
3. A foreign national could not claim fundamental rights.

Issue

Whether a Bangladeshi woman could receive constitutional compensation after serious violence in a railway facility. The Supreme Court considered both the right she held as a person and the responsibility of the public authorities.

Judgment (held)

The Supreme Court, in 2000, in a judgment by Justice Saghir Ahmad, dismissed the appeal.

• The right to life under Article 21 belongs to every person, not only to citizens.
• The Court relied on the Universal Declaration of Human Rights, with its guarantees of life, liberty, dignity and equality, and on the United Nations Declaration on the Elimination of Violence against Women.
• It said that our fundamental rights are almost in consonance with the Universal Declaration.
• Running the railways and their guest houses is a commercial activity, so the Union was vicariously liable for its employees, and compensation under Article 226 was proper.

Principle / ratio

International human rights standards guide the reading of our fundamental rights, and the right to life protects foreigners too. A public-law claim for compensation can be available for a violation of fundamental rights.

Significance

Chandrima Das applies human dignity in a practical way. Fundamental protection of life belongs to persons, including foreign visitors.

The Nottebohm Case (Liechtenstein v. Guatemala)

Key question: can a person obtain a new passport and automatically force every other country to treat that new nationality as the basis of diplomatic protection?

Background: nationality

• The Permanent Court said in 1923 that nationality falls, in principle, within the reserved domain of a State.
• Article 1 of the Hague Convention of 1930 says that it is for each State to determine under its own law who are its nationals.

Facts

• Friedrich Nottebohm, born a German national, lived and ran a large business in Guatemala from 1905.
• In October 1939, just after the Second World War began, he visited Liechtenstein, where his brother lived. He obtained its nationality within days, after the usual residence requirement was waived and he paid the fees.
• He lost his German nationality and returned to Guatemala on a Liechtenstein passport.
• After Guatemala joined the war against Germany, it arrested him in 1943 as an enemy alien, handed him to the United States for internment, and later confiscated his property.
• Liechtenstein claimed against Guatemala, exercising diplomatic protection on his behalf.

Issue

Whether the Liechtenstein nationality could be relied upon against Guatemala for the particular purpose of diplomatic protection, given that Guatemala had dealt with him for many years as a resident and businessperson.

Judgment (held)

The International Court of Justice, in 1955, by 11 votes to 3, held the claim inadmissible.

• Liechtenstein could make him a national under its own law, but Guatemala was not bound to recognise that nationality for diplomatic protection.
• Nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.
• Nottebohm had spent only short periods in Liechtenstein, had no settled home or business there, and sought its nationality mainly to become a neutral national in wartime. His real ties were with Guatemala, where he had lived for 34 years.

Principle / ratio

Nationality granted without a genuine link need not be recognised by other States for diplomatic protection.

Limits of the decision

• The decision should not be turned into a universal rule for every passport. Nor should it be taught as a rule that every person everywhere must prove deep personal links whenever nationality is granted.
• The genuine-link reasoning concerned whether a nationality could support an international claim in those circumstances. It did not declare that his naturalisation was invalid under Liechtenstein domestic law.
• The International Law Commission's Articles on Diplomatic Protection of 2006 do not generally require an effective personal link beyond nationality. The older judgment is best understood in its particular diplomatic-protection setting: the legal question was diplomatic protection against a third State.

Exam points

Nottebohm is best remembered for the distinction between granting nationality at home and relying on it internationally to protect a national.

Granting nationality at home	Relying on nationality internationally
Each State determines under its own law who are its nationals; Liechtenstein's grant was not declared invalid.	Another State need not recognise a nationality without a genuine link when diplomatic protection is claimed against it.

The South China Sea Arbitration (Philippines v. China)

Key question: can an old line on a sea map give a country resource rights that go beyond the zones fixed by a treaty?

Facts

• The Republic of the Philippines v. the People's Republic of China. China claims rights over most of the South China Sea, within a line on its maps known as the nine-dash line, and it has built artificial islands on reefs there.
• In 2013, the Philippines began arbitration under Annex VII of the Law of the Sea Convention, to which both States are parties.
• Under Article 287, a State may choose the International Tribunal for the Law of the Sea, the International Court or arbitration. If the parties have not chosen the same forum, the dispute goes to arbitration under Annex VII.
• China refused to take part and denied the tribunal's jurisdiction, but under the Convention, the absence of a party does not stop the proceedings. The tribunal still examined whether it had legal authority to decide the claims properly before it.
• The tribunal did not decide who owns any island, or where boundaries lie, because those questions were outside its jurisdiction.

Judgment (award)

The tribunal gave a unanimous award on 12 July 2016. It held:

1. Historic rights: China had no legal basis to claim historic rights to resources within the nine-dash line, beyond the rights provided in the Convention.
2. Rocks and islands: under Article 121(3), rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf. This depends on the natural condition of a feature, not on artificial additions. So none of the Spratly features, not even the largest, Itu Aba, can generate an exclusive economic zone. Features like Mischief Reef, covered at high tide, generate no zones at all, and lie within the Philippine exclusive economic zone.
3. Sovereign rights: China had violated the sovereign rights of the Philippines in that zone, by interfering with its fishing and oil exploration and by building an artificial island.
4. Environment and safety: China had caused severe harm to the coral reef environment, and its law enforcement ships had created a serious risk of collision.

China declared the award null and void, but under Article 296 it is final and binding on the parties.

Relevant law

• The Convention gives a coastal State resource rights in an exclusive economic zone, normally reaching up to 200 nautical miles from the relevant baseline.
• Article 121 distinguishes islands that can generate maritime zones from rocks that cannot sustain human habitation or economic life of their own.
• The conclusions about the nine-dash line concerned claimed historic resource rights under this treaty system.

Feature	Maritime zones generated
Island that can sustain human habitation or economic life of its own	Can generate maritime zones
Rock that cannot sustain human habitation or economic life of its own (e.g. the Spratly features, including Itu Aba)	No exclusive economic zone or continental shelf
Feature covered at high tide (e.g. Mischief Reef)	No zones at all
Artificial additions	Do not change the natural condition of a feature

Principle / ratio

Maritime claims must rest on the Convention, and a rock or an artificial island cannot create a vast exclusive economic zone.

Significance

The award separates control of land from legal rights over surrounding waters. It also shows that rejecting arbitration does not automatically erase an award.

The Enrica Lexie Incident (Italy v. India)

Key question: when foreign marines fire at an Indian fishing boat at sea, which country may investigate and try the incident?

Background: nationality of ships

No State owns the high seas, so the starting point is the nationality and legal position of ships. Under Article 91 of the Law of the Sea Convention, every ship has the nationality of the State whose flag it is entitled to fly, and there must exist a genuine link between the State and the ship.

Facts

• On 15 February 2012, the Italian oil tanker Enrica Lexie was about 20 nautical miles off the coast of Kerala, within India's contiguous zone and exclusive economic zone.
• Two Italian marines on board, posted to guard the ship against pirates, fired at an Indian fishing boat, the Saint Antony, believing it to be a pirate boat. Two Indian fishermen were killed.
• The tanker was brought into port at Kochi, and the marines were arrested and charged with murder.
• In 2013, the Supreme Court of India held that the State of Kerala had no jurisdiction, but the Union of India could try the marines in a special court.
• Since India has chosen no forum under Article 287, Italy began arbitration under Annex VII in 2015.

Arguments

Italy	India
India had no jurisdiction; the marines, as members of its armed forces on official duty acting as State officials, were immune from Indian criminal proceedings.	Relied on its rights and interests arising from the deaths of two Indian fishermen and the interference with its fishing boat.

Judgment (award)

In its award of May 2020, the tribunal held:

1. Jurisdiction: both States had jurisdiction over the incident. It was not an incident of navigation under Article 97, so India had not breached the Convention by exercising jurisdiction. Article 97 on collisions was not a general answer to a shooting.
2. Freedom of navigation: Italy had breached India's freedom of navigation by interfering with the Indian fishing boat. So India was entitled to compensation for the loss of life, physical harm, damage to property and moral harm suffered by the captain and crew.
3. Immunity: by a majority, the marines enjoyed immunity as State officials acting in their official capacity, so India could not try them. This led to an obligation for India to cease its criminal process. The tribunal noted Italy's commitment to resume its own criminal investigation.

Aftermath

• Italy paid compensation of 10 crore rupees, which the Supreme Court of India directed to the victims' families and the boat owner.
• In June 2021, the Supreme Court closed the proceedings against the marines in India.

Principle / ratio

The two marines were entitled to immunity for the official acts at issue, while Italy remained responsible for the injury found. This does not settle the immunity of every State official in every situation. The tribunal did not say that India had no connection to the incident.

Significance

Enrica Lexie is especially useful for Indian students because it separates jurisdiction from immunity and shows how sea law meets State responsibility.

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)

Key question: may a powerful country arm rebels against another government and call it collective self-defence?

Facts

• The Sandinista movement took power in Nicaragua in 1979, and the United States accused it of arming rebels in neighbouring El Salvador.
• From 1981, the United States financed, trained, armed and supplied the contras, an armed group fighting the Nicaraguan government.
• In 1983 and 1984, Nicaraguan ports were mined, and ports and oil installations attacked, by persons paid and directed by American agents.
• Nicaragua sued in April 1984. After the Court upheld its jurisdiction, the United States walked out of the case.

Issues and arguments

• Nicaragua complained of attacks, mining and support given to the contras.
• The United States claimed that it was responding to threats in neighbouring countries and raised a collective self-defence argument.
• Jurisdiction: because of an American reservation excluding disputes under multilateral treaties, the Court applied customary law.

Customary law alongside the Charter

The Court held that the ban on force and the right of self-defence exist in custom alongside the Charter: the rule against the use of force in Article 2(4) and the rule on self-defence in Article 51 are also reflected in custom. It found the opinio juris partly in the attitude of States towards the Friendly Relations Declaration of 1970.

Judgment (held)

In June 1986, by 12 votes to 3 on most points, the Court held the United States responsible.

1. Use of force and intervention: mining the ports and attacking the oil installations was a use of force; arming and training the contras was unlawful intervention and, in part, a use of force.
2. Collective self-defence failed:
   • only the most grave forms of the use of force amount to an armed attack;
   • sending armed bands may qualify if its scale and effects match an armed attack by regular forces, but merely supplying weapons or logistical support to rebels does not;
   • the supposed victims had not asked for help in time;
   • the measures were not necessary, and some were not proportionate.
3. Attribution: the contras' own violations of humanitarian law were not attributable to the United States. Nicaragua had not proved that the United States had effective control of the military or paramilitary operations in the course of which they were committed.

The United States was ordered to make reparation, though Nicaragua later dropped its claim.

Principle / ratio

• The ban on force is customary as well as treaty law.
• Self-defence needs an armed attack; supplying weapons to rebels is not automatically the same as an armed attack.
• Attribution of the particular acts examined requires effective control over the operations in which they occurred.

Significance

Nicaragua is foundational for the limits on force, the value of customary law and the careful test for attributing rebel conduct to a State.

Certain Expenses of the United Nations (Advisory Opinion)

Key question: can members refuse to fund United Nations peacekeeping because they disagree with who created the missions?

Background: powers of UN organs

• The United Nations Charter gives the Security Council primary responsibility for international peace and security.
• Article 39 lets the Council identify threats or breaches of peace.
• Article 41 allows non-military measures; Article 42 concerns military enforcement.
• The General Assembly has a different role. Under Article 17(2), members contribute to the expenses of the United Nations as apportioned by the Assembly.

The central question is whether a peacekeeping operation falls within those expenses. A budget disagreement has to be tested against the Charter powers and the nature of the mission.

Facts

• In 1956, during the Suez crisis, the General Assembly, using the Uniting for Peace procedure, created the United Nations Emergency Force in the Middle East.
• In 1960, the Security Council created a force for the Congo.
• The Assembly treated their costs as expenses of the Organization, to be shared by all members under Article 17(2).
• The Soviet Union, France and others refused to pay, arguing that only the Security Council could act for peace and security.

Judgment (opinion)

The Court, in July 1962, by 9 votes to 5, held that these were expenses of the Organization.

• The Security Council's responsibility for peace and security is primary, not exclusive.
• The action reserved to the Council is coercive enforcement action. These forces were not enforcement, because they operated with the consent of the States concerned.
• When the Organization acts to fulfil one of its stated purposes, there is a presumption that the action is within its powers.
• The Court looked at the purpose and character of the operations, and the lawful purposes for which the United Nations may spend its funds, before deciding the budget question.

Principle / ratio

The costs of these peacekeeping operations were lawful United Nations expenses, and the General Assembly has a real, though secondary, role in peace and security.

Peacekeeping with consent	Coercive enforcement
Works with the consent of the State concerned	Enforces decisions against a State through military force
Not reserved exclusively to the Security Council; costs may be expenses under Article 17(2)	Action reserved to the Security Council (Articles 39, 41, 42)

Significance

Certain Expenses clarifies that the United Nations has more than one organ working for peace. Budget duties cannot be answered by political disagreement alone.

Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion)

Background: Article 2(4) of the UN Charter

The UN Charter is the starting point. The most important primary rule of all is Article 2(4) of the Charter: all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.

• It bans the threat of force, not only its use.
• Force here means armed force, not mere economic pressure.
• The closing words ("in any other manner inconsistent with the purposes of the United Nations") cover every use of force against the purposes of the UN, so there are no loopholes.

Facts

The UN General Assembly asked the ICJ a direct question for an advisory opinion. It was not a trial against one State; it was a request for legal advice from a UN organ.

Issue

Is the threat or use of nuclear weapons permitted under international law in any circumstance?

The Court had to apply:

• the UN Charter (the system controlling threats and uses of force);
• the laws of armed conflict, i.e. humanitarian law, which protects people during armed conflict; and
• the rules governing weapons.

The judges could not decide the matter simply from how frightening the weapons were.

Judgment (held)

On 8 July 1996 the Court answered in six parts:

1. Unanimously: no rule of custom or treaty specifically authorises the threat or use of nuclear weapons.
2. By 11 votes to 3: no comprehensive and universal prohibition of them exists either. The many General Assembly resolutions against them, adopted with many negative votes and abstentions, did not yet show the necessary opinio juris.
3. Unanimously: their threat or use contrary to Article 2(4), and failing the requirements of Article 51, is unlawful.
4. Unanimously: their threat or use must also comply with humanitarian law.
5. By 7 votes to 7, on the casting vote of the President, Mohammed Bedjaoui: their threat or use would generally be contrary to humanitarian law. But the Court could not conclude definitively whether it would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.
6. Unanimously: States must pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament.

Principle / ratio

Even the deadliest weapons are subject to the Charter and to humanitarian law, though the extreme case of survival was left open.

Significance

• The opinion gave a limited answer, not a general permission to use nuclear weapons.
• Use must comply with the rules on self-defence and with humanitarian law.
• It left unresolved the exceptional case where the survival of a State itself would be at stake.
• It found a duty to negotiate nuclear disarmament in good faith.
• The opinion predates the later treaty prohibiting nuclear weapons, which binds its own parties under its terms.
• It insists that even the most extreme weapons remain questions of law, while identifying the limits of what the Court decided.

Exam points

Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo (Advisory Opinion)

Background: declaration of independence and recognition

The question: when leaders declare that a territory is independent, has international law itself been broken by the declaration?

A declaration of independence is not the same as recognition. Does recognition create a State, or merely admit a State that already exists? Two theories answer this.

Constitutive theory	Declaratory theory
An entity becomes a State, with rights and duties under international law, only when other States recognise it.	Statehood is a matter of fact. An entity that meets the criteria is a State, and recognition simply acknowledges the fact.
Supported by writers such as Oppenheim, Anzilotti and Kelsen.	Dominant today.

• Article 3 of the Montevideo Convention: the political existence of the State is independent of recognition by the other States.
• Badinter Commission: in 1991 the European Community set up an Arbitration Commission for the break-up of Yugoslavia, known as the Badinter Commission. It said that the existence or disappearance of a State is a question of fact, and that the effects of recognition by other States are purely declaratory. It later added that recognition is nonetheless a discretionary act.

Facts

• Kosovo was a province of Serbia with an Albanian majority.
• After the conflict of 1999, Security Council Resolution 1244 placed it under an interim UN administration.
• On 17 February 2008 its leaders declared independence.
• Serbia opposed Kosovo's independence. At the request of Serbia, the General Assembly asked the Court for an advisory opinion.

Issue

Was the unilateral declaration of independence in accordance with international law? The Court examined the act of making the declaration and the relevant international instruments. It did not sit as a general court of recognition and did not decide whether every State was required to treat Kosovo as independent.

Judgment (held)

In July 2010, by 10 votes to 4, the Court held that the declaration did not violate international law:

1. State practice shows no general prohibition of declarations of independence.
2. The principle of territorial integrity is confined to the sphere of relations between States, so it binds States, not groups within a State.
3. Declarations such as those of Southern Rhodesia and Northern Cyprus were condemned only because of their context: they were connected with the unlawful use of force or other egregious violations of general international law, especially jus cogens.
4. The authors, acting as representatives of the people of Kosovo outside the interim framework, did not breach Resolution 1244.

The Court did not decide:

• whether Kosovo is a State;
• whether a right of secession exists; or
• what effect recognition has.

Principle / ratio

International law does not prohibit declarations of independence as such.

Significance

Kosovo is useful precisely because it teaches a narrow legal holding. The opinion did not create a free-standing right for every group to leave its parent State.

Exam points

The Rainbow Warrior Arbitration (New Zealand v. France)

Background: circumstances precluding wrongfulness

The question: can one country secretly break its agreement with another and later say that an emergency made the breach lawful?

Sometimes conduct that would normally be wrongful is excused. The Articles on State Responsibility list six circumstances precluding wrongfulness, including:

• Article 20 – Consent: valid consent by a State to the conduct of another State precludes wrongfulness, so long as the conduct stays within that consent.
• Article 21 – Self-defence: self-defence taken in conformity with the Charter.
• Article 24 – Distress: explains the principle applied in this case today.

Facts

• On 10 July 1985, French secret agents sank the Greenpeace ship Rainbow Warrior in Auckland harbour, New Zealand, before it could protest against French nuclear tests. A photographer on board was killed.
• Two French agents, Major Alain Mafart and Captain Dominique Prieur, pleaded guilty to manslaughter and were sentenced to 10 years' imprisonment.
• A ruling by the UN Secretary-General in 1986, embodied in agreements between the two States, required France to apologise and pay 7 million US dollars. France also had to keep the agents on the French Pacific island of Hao for at least three years, unless both States agreed otherwise.
• In December 1987, France flew Mafart to Paris for urgent medical treatment.
• In May 1988, France flew Prieur home because she was pregnant and her father was dying.
• Both times France acted without New Zealand's consent, and neither agent returned.

The arbitration was not a trial deciding who planted the explosives. It concerned France's obligations under the settlement and its reasons for removing the agents from the agreed location.

Issue

Was France's removal of the two agents from Hao, without New Zealand's consent, excused by distress?

Judgment (held)

The tribunal gave its award on 30 April 1990:

1. The law of treaties decides whether an obligation exists, but the law of State responsibility decides whether a breach is excused.
2. By a majority, Mafart's evacuation was justified by distress. But France breached its obligation by not returning him after he recovered.
3. Prieur's removal was not justified, and France had not sought New Zealand's consent in good faith.
4. Again by a majority, the three-year period had ended in July 1989, so the tribunal could not order the agents' return.
5. It declared France's breaches, treating this public condemnation as appropriate satisfaction.
6. It recommended that France contribute 2 million US dollars to a fund to promote friendly relations between the two peoples.

Principle / ratio

Distress excuses a breach only while the emergency lasts, and only if the State acts in good faith.

Significance

This is the leading case on distress. It teaches that humanitarian excuses have limits: an obligation may be interrupted for a real emergency without disappearing forever.

Exam points

• Leading case on distress (Article 24).
• Distinguish Mafart (justified, but breach in not returning) from Prieur (not justified at all).
• Remedy: declaration of breach as satisfaction plus a recommended contribution of 2 million US dollars to a friendship fund; no order of return.

The LaGrand Case (Germany v. United States of America)

Background: consequences of a wrongful act

The question: does an urgent order of the ICJ actually bind a country when a person may be executed before judgment?

Under the Articles on State Responsibility, the consequences of a wrongful act are:

• Article 30: the State must cease the wrongful act if it is continuing, and offer assurances of non-repetition if circumstances require.
• Article 31: it must make full reparation for the injury, which includes any damage, material or moral. The Chorzow Factory case explained the aim of reparation.

Facts

• Karl and Walter LaGrand were German brothers who had lived in the United States since childhood.
• In 1982 they were arrested in Arizona after an attempted bank robbery in which the bank manager was killed, and they were sentenced to death.
• No one told them of their right, under Article 36 of the Vienna Convention on Consular Relations, to have the German consulate informed and to receive its help.
• When they later raised the point, an American rule called procedural default barred them from raising it in federal court.
• Karl was executed in February 1999.
• The day before Walter's execution, Germany went to the ICJ. The Court ordered the United States to take all measures at its disposal to ensure that he was not executed pending its final decision. Walter was executed on the day of the order.

Issues

• Did the United States breach Article 36 of the Vienna Convention on Consular Relations, towards Germany and towards the brothers?
• Did the procedural default rule prevent full effect being given to those rights?
• Are the Court's orders on provisional measures legally binding, and did the United States breach its order?

Arguments

Germany complained about the loss of consular protection for its nationals, and about the execution of Walter despite an urgent order from the Court.

Judgment (held)

The Court gave judgment in June 2001:

1. The United States had breached Article 36 towards Germany and towards the brothers, because the Article creates individual rights.
2. By applying the procedural default rule, it had prevented full effect being given to those rights.
3. For the first time, the Court held that its orders on provisional measures are legally binding, and that the United States had breached its order. It reached this result by interpreting Article 41 of its Statute in the light of the Statute's object and purpose, and it reconciled the Statute's English and French texts under Article 33 of the Vienna Convention on the Law of Treaties.
4. If German nationals are again sentenced to severe penalties without being told of their rights, the United States must allow review and reconsideration of the conviction and sentence, by means of its own choosing.

Principle / ratio

Consular rights belong to individuals as well as States, and provisional measures of the Court bind the parties.

Significance

The judgment dealt with both treaty rights and the authority of the Court's interim orders. LaGrand remains a leading lesson in individual treaty rights, effective remedies and the binding force of emergency orders of the ICJ.

Exam points

• First case holding ICJ provisional measures binding (Article 41 of the Statute, read with Article 33 of the Vienna Convention on the Law of Treaties).
• Article 36 of the Vienna Convention on Consular Relations creates individual rights.
• Remedy for the future: review and reconsideration by means of the State's own choosing.

Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain)

Background: diplomatic protection

The question: if a company suffers serious damage abroad, can the home countries of its shareholders automatically sue for the company's losses?

A claim for injury to a foreigner is brought through diplomatic protection. In the Mavrommatis case, the Permanent Court explained its nature: by taking up the case of one of its subjects, and resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights. The International Law Commission codified the rules of diplomatic protection in its Articles on Diplomatic Protection of 2006, but its commentary calls the Mavrommatis view a fiction and leaves open whether the State acts in its own right, in that of its national, or both.

Facts

• Barcelona Traction was a holding company incorporated in Toronto, Canada, in 1911.
• Through subsidiaries, it supplied electricity in Catalonia, Spain.
• Belgium said that most of its shares were held by Belgian nationals.
• In 1948 a Spanish court declared it bankrupt, and its Spanish business was later sold to a Spanish group.
• Belgium claimed that the Spanish authorities had acted unlawfully and caused great loss to the Belgian shareholders, and it sued on their behalf.

Issue

Who may protect a company: the State of incorporation, or the State of its shareholders?

Arguments

• Belgium: Belgian shareholders suffered when action in Spain harmed Barcelona Traction.
• Spain: disputed Belgium's standing to bring the claim.

Judgment (held)

In its final judgment of 5 February 1970, by 15 votes to 1, the Court held that Belgium had no standing to protect the shareholders:

1. International law takes the idea of a limited company from municipal law. A company has a legal personality separate from its shareholders. A wrong done to the company may cause them loss, but it does not violate their rights. So the right to protect the company belongs to its national State, the State of incorporation, here Canada.
2. Possible exceptions, such as the company ceasing to exist or its national State lacking capacity to act, did not apply. The company still existed in law, and Canada had been able to act.
3. The Court distinguished obligations owed to a particular State, like those in diplomatic protection, from obligations towards the international community as a whole: obligations erga omnes.

Principle / ratio

A company is protected by its State of incorporation, not by the State of its shareholders, save in narrow cases.

Significance

Barcelona Traction teaches the separate identity of a company and gives international law one of its most important discussions of duties owed to all States.

Exam points

• Standing belongs to the State of incorporation (Canada), not the shareholders' State (Belgium).
• Exceptions: company ceasing to exist; national State lacking capacity to act.
• One of the most important discussions of obligations erga omnes (duties owed to all States); the idea did not give Belgium standing on these facts.

The Tinoco Arbitration (Great Britain v. Costa Rica)

Background: recognition and statehood

The question: can a government that came to power by force still make acts that legally bind the State, even if other countries refuse to recognise it?

Criteria of statehood: Article 1 of the Montevideo Convention on the Rights and Duties of States, 1933

1. A permanent population – it need not be large, as tiny States like Nauru and Tuvalu show.
2. A defined territory – boundaries need not be settled, so long as there is a stable core of territory.
3. A government – it must exercise effective control.
4. Capacity to enter into relations with other States – this really means independence.

Modern practice adds that an entity created by the unlawful use of force, or in violation of self-determination, is generally not accepted as a State, however effective it may be.

Recognition of a State v. recognition of a government

Recognition of a State	Recognition of a government
Acknowledges that an entity is a State.	Arises when an existing State gets a new government through a revolution or a military coup; the question is whether to recognise that government.
Continues even when the State's governments change.	A change of government by constitutional means, like an election in India, raises no question of recognition at all.

Facts

• In 1917, Federico Tinoco seized power in Costa Rica by a coup and ruled for about two and a half years.
• Britain and the United States never recognised his government.
• After he fell, the new government cancelled his contracts, including debts owed to a British bank and an oil concession held by a British company.
• Britain claimed for its nationals.
• The sole arbitrator was William Taft, then Chief Justice of the United States.

Issues

• Had the Tinoco government been a real authority whose acts could bind Costa Rica?
• Did the particular dealings give Britain valid claims?

Judgment (held)

In 1923 the arbitrator held:

1. The Tinoco regime had been the real government, because it was in effective control. So its acts could bind Costa Rica.
2. Non-recognition by other States was only evidence against its existence and could not outweigh the facts.
3. But the British claims failed on their own facts: the payments to the bank were irregular and the concession was invalid.

Principle / ratio

Effective control mattered more than diplomatic recognition when deciding whether the Tinoco regime functioned as a government. The individual claims still had to be legally justified.

Significance

Tinoco is a classic distinction between the existence of a government as a matter of fact and the separate legality of its particular acts.

Aksionairnoye Obschestvo A. M. Luther v. James Sagor and Company

Background: legal effects of recognition

The question: if a new foreign government takes over a factory, can the former owner ask an English court to ignore the takeover after Britain has recognised that government?

Recognition matters in practice mostly because of its effects in the courts of the recognising State.

Recognised State or government	Unrecognised authority
Can sue in the courts of the recognising State.	Traditionally could not sue.
Can claim immunity from their jurisdiction.	Its acts could be ignored.
Its laws and decrees are given effect.	Modern courts sometimes give effect to its acts in private matters, such as marriages, to avoid injustice to ordinary people.
Can claim State property located there.

Facts

• The Luther company owned a plywood factory in Russia, which the Soviet government seized in 1919 under a nationalisation decree.
• In 1920, the Soviet government sold a quantity of wood from the factory to Sagor, an English company, which brought it into England.
• The Luther company sued, claiming the wood was still its property.
• The trial judge decided for Luther, because Britain had not recognised the Soviet government, so its decree could not be given effect.
• Before the appeal was heard, Britain recognised the Soviet government as the de facto government of Russia.

Issue

Could the buyer rely on the acts of the Soviet authorities, and what did recognition mean for the earlier official acts of that government?

Judgment (held)

In 1921 the Court of Appeal reversed the decision:

1. Once a government is recognised, English courts must treat its acts as those of a sovereign government and cannot question their validity.
2. Recognition relates back to the time when that government came into power.
3. So the decree was valid, and Sagor had good title to the wood.

Principle / ratio

Recognition is retroactive, and courts of the recognising State give effect to the acts of a recognised government within its own territory.

Limits of the rule

• It concerns the legal effect of recognising a foreign government in English courts.
• It does not mean that every action by a recognised government anywhere in the world is beyond challenge.
• The classic principle gives effect to the sovereign public acts of the recognised authority done inside its own territory, subject to later legal developments.
• The decision did not grant a private seller an unrestricted right to take foreign property.

Significance

This is the leading English case on the effect of recognition. It shows that recognition can have consequences reaching back to earlier official acts, so diplomatic decisions can shape private property disputes.

Avena and Other Mexican Nationals (Mexico v. United States of America)

Background: consular communication and remedies

The question: what must a criminal court do after a foreign prisoner was never informed of his right to contact his own consulate?

• Article 36 of the Vienna Convention on Consular Relations gives an arrested foreign national the right to be told about consular communication. Consular officers may communicate with and visit a detained national, as the Convention provides.
• These protections help someone facing an unfamiliar legal system abroad. They do not depend on that person being innocent, and they operate alongside the rules of criminal trial.
• When a State breaks this treaty duty, international responsibility may arise.
• A remedy is a step required to deal with the wrong. Under international law, a State must stop a continuing breach and make appropriate reparation. Reparation means putting right the legal injury as far as possible.

Facts

Mexico complained that 52 of its nationals on death row in the United States had not been told of their consular rights.

Issue

The question was not whether an international court would conduct a new criminal trial, but whether national courts must give the treaty violation a real judicial examination. The Court did not act as an appeal court rehearing every trial; it examined whether international obligations had been breached and what national courts must do about the effects of that breach.

Judgment (held)

In March 2004 the Court:

1. Found breaches of Article 36 in 51 of the cases.
2. As the remedy, required the United States to provide, by means of its own choosing, review and reconsideration of the convictions and sentences, taking account of the violation.
3. Held that this must happen through the judicial process, because executive clemency alone is not enough, and that procedural default must not stand in the way.
4. Refused to annul the convictions.

Aftermath

• The President of the United States directed the State courts to comply.
• In Medellin v. Texas, the United States Supreme Court held that neither the judgment nor the President's direction bound the State courts without an Act of Congress.
• Texas executed Jose Medellin in August 2008.

Principle / ratio

The remedy for a consular breach is effective judicial review and reconsideration, and internal law cannot excuse a failure to provide it.

Exam points

Significance

Avena teaches that recognising a right is only the beginning. The State must also offer a practical judicial remedy when the right is denied.

Fisheries Case (United Kingdom v. Norway)

Background: international custom

The question: can a country draw sea boundaries along its complicated coastline when another country demands a uniform measuring rule?

International custom is the second source of international law and the oldest. Basic rules like the immunity of ambassadors and the freedom of the high seas began as custom. Article 38 describes it as "international custom, as evidence of a general practice accepted as law".

Two elements of custom

1. A general practice – the material or objective element, i.e. State practice.
2. Its acceptance as law.

What counts as State practice

Almost anything a State does or says in its official capacity, including:

• diplomatic letters and protests;
• official statements;
• laws;
• decisions of national courts;
• military manuals;
• the conduct of armed forces;
• votes on resolutions; and
• treaties.

Even inaction can count, but only if the State deliberately chose not to act.

Assessing State practice

• Duration: no fixed period is required. The rules on the continental shelf grew within little more than a decade of the Truman Proclamation of 1945.
• Consistency: the practice must be substantially uniform, though not perfect. Even when an occasional violation occurs, the wider pattern of consistent practice remains important.
• Generality: the practice must be widespread and representative, though not universal. The practice of specially affected States carries special weight.

The persistent objector

A new custom generally binds every State, even one that never took part in forming it, such as a new State. The exception is the persistent objector: a State that clearly and consistently objects to a rule while it is being formed is not bound by it.

Facts

The United Kingdom questioned the method used by Norway of drawing the lines from which its fisheries zone was measured. The Norwegian coast has many inlets and offshore islands. Britain argued that a ten-mile rule for closing bays was custom.

Issue

The Court had to examine the geography, the historic practice, and whether a ten-mile closing rule had become law for Norway.

Judgment (held)

1. The Court accepted Norway's method of straight baselines in the circumstances.
2. It rejected the claimed ten-mile rule as a general custom binding Norway.
3. It added that the rule would in any event not apply against Norway, which had always opposed any attempt to apply it to the Norwegian coast. Norway's long and open opposition was important.

Principle / ratio

Straight baselines

• A baseline is the starting line used to measure coastal maritime zones.
• Along a deeply indented coast, ordinary low-water measurements may not reflect the coastal geography well.
• A carefully justified straight-line system is different from drawing any line a country prefers.
• The Fisheries decision is closely connected to the later idea of straight baselines under the Law of the Sea Convention.

Significance

Fisheries remains central to both sea boundaries and customary international law. Geography and proven State practice can matter as much as a neat line on a map.