Week 3

Case of the S.S. “Lotus” (France v Turkey):

Turkish and French Steamer crash. French Steamer reaches Istanbul with Turkish survivors
aboard. French captain was arrested.
A State cannot exercise its jurisdiction outside its territory unless an international treaty or
customary law permits it to do so. Within its territory, a State may exercise its jurisdiction, in
any matter, even if there is no specific rule of international law permitting it to do so. In these
instances, States have a wide measure of discretion, which is only limited by the prohibitive
rules of international law.
International law governs relations between independent states, based on their free will
expressed through conventions and accepted principles. Restrictions on state independence
are not assumed without clear agreement. – Strong Positivist View.
The Court affirmed that a vessel on the high seas is considered the territory of its flag State,
allowing Turkey to exercise jurisdiction as if the offence occurred on Turkish soil. The Court
also established the principle of territorial jurisdiction, where a State can claim jurisdiction if
a constitutive element of a crime occurred within its territory, making the crime inseparable
from that element. Both countries have concurrent jurisdiction.
Case Inapplicable as Geneva Convention 1958 specifically addressed jurisdiction (Flag state
of ship or nationality of person) on the high seas under A. 11 and later in UNCLOS.
The state in which crime takes place or the crime has committed exercises the subjective
territorial jurisdiction and, the state to which this commission of crime affected exercises
objective territorial jurisdiction.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America):
Military and paramilitary activities conducted by, or with the assistance of, the United States
against Nicaragua from 1981 to 1984.
Jurisdictional:
Due to the Vandberg reservation, wherein the US court had excluded the jurisdiction of the
ICJ in cases of non-inclusion of relevant parties in multilateral treaties, the jurisdiction of the
ICJ came into question.
Separability: Multilateral treaty reservations cannot preclude the Court from relying on
customary international law because, even if treaty provisions and customary law deal with
the same subject matter, customary law exists independently of treaty law. Relied on A. 51
(UN Charter) to prove self-defense existed as CIL and as a treaty provision. However, in case
of a divergence between treaty law and customary international law, for the parties to a treaty,
amongst themselves, the treaty provisions apply as lex specialis.
Non-use of force, non-intervention, respect for the independence and territorial integrity of
States, right of collective self-defense and the freedom of navigation, continue to be binding
as part of customary international law.
State Practice and Opinio Juris remain the cornerstones of CIL. State activity in UNGA
resolutions can constitute Opinio Juris.
Mere frontier incidents are not armed attacks unless their scale and effects equate to those by
regular forces. Providing weapons or logistical support to rebels is not an armed attack but
can be seen as a threat, use of force, or intervention in another State's affairs. Under Article
51 of the UN Charter and customary international law, self-defense is only justified against a
use of force that qualifies as an armed attack.
A. 51 (Self-defense) An armed attack must occur. The victim state must declare itself a
victim. In collective self-defense, the victim state must request assistance. Reporting to the
Security Council is expected but not obligatory under customary law.
The Court held that the United States breached its customary international law obligation by
intervening in Nicaragua's affairs through training, arming, and supporting the contras.
However, the Court controversially found insufficient evidence to attribute the contras'
actions directly to the U.S., despite its substantial support (direct control of the armed forces
is necessary).
The United States violated Nicaragua's sovereignty by authorizing reconnaissance flights
over Nicaraguan territory and laying mines in its internal waters and territorial sea.

North Sea Continental Shelf Cases (Netherlands/Germany) (Denmark/Germany):

The dispute arose as to which delimitation principle ought to be applied. While Denmark and
Netherlands wanted the equidistant principle, Germany wanted the justia distributiva
principle to be applied. While the former was provided in the Geneva Convention governing
the same. Germany was a signatory to the same, however, it didn’t ratify the treaty.

The equidistant method was one of four methods suggested to the ILC. No single method of
delimitation proved to be satisfactory. Furthermore, Article 6 could be reserved under Article
12 while Article 1-3 couldn’t. Additionally, Article 6 states that an agreement would
supersede the Equidistant principle, thereby denying it a norm-creating character.
Only clear and consistent conduct could imply treaty obligations without formal ratification.
It determined that the equidistance principle did not constitute customary law at the time of
the Convention's drafting, nor did it achieve such status afterward. The Court emphasized the
lack of widespread participation, uniform usage, and opinio juris necessary for customary law
formation, ultimately ruling that Germany was not bound by the equidistance principle either
through treaty law or customary international law. (Ex: France hasn’t adopted VCLT but it is
a part of CIL).
Legality of the Threat Or Use of Nuclear Weapons (Advisory Opinion):
Is the threat of use of nuclear weapons permitted under any circumstances under International
Law?
No treaty or customary law prohibiting its use (It found that there was no explicit prohibition
on the possession of nuclear weapons in international law.). Regulated by other treaties
regulating use of force, wherein force must be proportionate to the military objective sought
(It determined that a threatened retaliatory strike, if consistent with military necessity and
proportionality, might not necessarily be illegal.) and there must be a distinction between
lawful targets and other such as civilians (The ICJ noted that universal humanitarian laws
applicable to war, such as the prohibition on targeting civilians and the outlawing of certain
indiscriminate weapons, would apply to the use of nuclear weapons.). Methods and means of
warfare which don’t take them into account are prohibited anyway. Moreover, Mere
possession of Nuclear Weapons do not constitute a threat.
The Court took a ‘soft lotus’ approach, to opine that despite there being no ban on use of
nuclear weapons, prohibitions can be understood through the lens of humanitarian law. The
threat or use of force with nuclear weapons contrary to the UN Charter and failing to meet
Article 51 requirements is unlawful. While generally contrary to international law, the
legality of nuclear weapons' threat or use in extreme self-defence circumstances cannot be
definitively concluded. There is an obligation for states to negotiate nuclear disarmament in
good faith under strict international control.
Attributed/Implied Powers - According to the doctrine of attributed power, the organization
can only work on the basis of the powers which have been specifically attributed to them.The
Court maintains that its authority to provide an opinion remains unaffected by the political
context surrounding the request or the potential ramifications of its decision. (A. 65 P.1)
Dissent of Weeramantry:
Weeramantry, claimed that the laws of war forbidding cruel weapons also applied in
situations of self-defence, not restricted to aggression. Nuclear weapons are so destructive,
that they violate rules, even in the case of defence. "International law cannot concede a place
within itself to a weapon that can wipe it out altogether. A weapon that can wipe out the entire
population of the world cannot possibly uphold world public order... International law and
nuclear weapons cannot coexist." The prompt effects and fallout of nuclear weapon usage
can’t be consistent with any humanitarian law as it is well documented in the case of
Hiroshima and Nagasaki (Inevitable Collateral Damage). A weapon that is inherently
unlawful can’t become lawful just because it is used for a righteous purpose.

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

Whether Portugal had a right of passage through the Indian Ocean to reach its enclaves?
Portugal sought free passage over Indian territory to access its enclaves of Dadra and Nagar-
haveli. It claimed historical sovereignty over these enclaves, citing the Treaty of Poona and a
Sanad issued by Maratha rulers. India disputed the validity of these claims, arguing that the
treaty was not binding and that sovereignty evolved over time. India argued before the Court
that practice between only two states was not sufficient to form a local custom.
The International Court of Justice (ICJ) found that a longstanding practice existed between
the two states, allowing Portugal passage for exercising its sovereign powers over the
enclaves. The Court concluded that a custom or practice prevailed between the two states,
granting Portugal passage subject to certain conditions. This custom superseded existing
formal policies, ensuring mutual recognition and respect for sovereignty. Right did not extend
to moving military personnel into the enclaves as it was prohibited by a treaty in 1879.
A state desirous of statehood and participation in the international plane is deemed/assumed
to accept the international order as it is.
Asylum Case (Colombia V. Peru)
1. Regional custom: Colombia argued that a regional custom existed in Latin America
allowing the state granting asylum to unilaterally qualify the offense as political. The ICJ
rejected this argument, stating Colombia did not prove such a binding regional custom
existed. However, the Court recognized the theoretical possibility of a regional or local
custom particular to Latin American states.
2. Standards for establishing regional custom: The ICJ set a high threshold for proving a
regional custom compared to general custom. It held the party alleging a regional custom
must prove it is binding on all states involved, whereas for general custom it is enough to
show acceptance by most states.
3. Interpretation of the 1928 Havana Convention on Asylum: The case involved interpreting
several provisions of this convention, including:
a) Whether it gave the right to the asylum-granting state to unilaterally qualify the offense
(the ICJ said no).
b) Whether it obligated the territorial state to provide a safe-conduct (the ICJ said only if the
territorial state requires the refugee's departure).
c) The meaning of "urgent cases" in which asylum can be granted (the ICJ interpreted this
narrowly).
4. Impact of later treaties: The 1954 Caracas Convention on Diplomatic Asylum, ratified after
the case, recognized the right of the asylum state to unilaterally qualify the offense. This was
a response to the ICJ's controversial ruling.
Week 4 Jus Cogens/Era Omnes
Barcelona Traction, Light and Power Company Case (Belgium v. Spain):
Barcelona Traction, Light, and Power Company, Ltd. (BTLP) was a Canadian corporation
that provided electricity in Spain. During the Spanish Civil War (1936–1939), the Spanish
government prevented BTLP from transferring currency to pay bondholders their due
interest. In 1948, bondholders sued BTLP in Spain for defaulting on interest payments. The
Spanish court allowed the claim, leading to the sale of BTLP's business, with surplus
distributed to bondholders. The majority of BTLP's shares (88%) were owned by Belgians.
Belgium complained, asserting Spain's improper actions. Legal actions were taken,
culminating in a claim filed by Belgium in 1962.
Diplomatic Protection: A state may take claims and other diplomatic actions on behalf of its
nationals who have been wronged by another state. The International Court of Justice (ICJ)
expanded the application of diplomatic protection to corporations. The court recognized that
corporations, as legal entities, can also have rights that may be violated by actions of foreign
states.
Jus Standi: The term for the right to bring a case to the court. It determines who has the
authority to initiate proceedings based on their legitimate interest or connection to the matter
at hand.
The court preferred a Hyper Technical Approach.
Belgium lacked legal interest to bring the claim. It reasoned that when an unlawful act affects
a company, only the state of incorporation can sue. As Canada chose not to sue, Belgium's
claim was dismissed (Shareholder should’ve complained to Canada), in spite of the concept
of separate legal entity, mere fact that damage is done to both shareholders and company, the
former can’t claim (mere collateral damage) (Importance of recognizing the effective
nationality of a corporation over its nominal registration.). General rule of international law
that when an unlawful act was committed against a company, only the state of incorporation
of the company could sue. The unlawful act against Barcelona Traction couldn’t be seen as a
wrongful act against Belgium, differentiating between harm to legal interest and mere interest
(collateral damage).
Idea of Erga Omnes - brought forward the principle of “obligations erga omnes” which are
rights and obligations owed to each State, the violation of which would give every State the
locus standi to invoke responsibility. This led to the codification of Art. 48 ARSIWA on
invocation of responsibility by a State other than an injured State. [Art. 48(1)(a) – obligation
erga omnes partes and Art. 48(1)(b) – obligation erga omnes]. Acts of aggression, Genocide,
Slavery Racial Discrimination, were breach of EO.
Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (The Gambia v Myanmar):
The Court ruled that the motivation of the party to sue was irrelevant, emphasizing the legal
nature of its decision. The concept of erga omnes obligations, recognizing obligations
towards the international community as a whole, could establish standing even without a
specific interest. The Court concluded that The Gambia's rights under the Genocide
Convention were directly linked to the provisional measures requested. The first three
measures were aimed at maintaining The Gambia's rights under the Convention, specifically
the protection of the Rohingya group from genocide and ensuring Myanmar's compliance
with its obligations. The remaining measures were deemed necessary to prevent actions that
could exacerbate the dispute or hinder its resolution, thus establishing a clear link between
the rights claimed and the requested provisional measures.

Application of the Convention on the Prevention and Punishment of the Crime of

Genocide in the Gaza Strip (South Africa v. Israel):
Arguments: South Africa contends that Israel has killed over 20,000 Palestinians, over 70%
are women and children. In Israeli-declared safe zone (indicating deliberate targeting of
civilians), evacuation of Gaza strip has left many Palestinians stranded. Cessation of war and
reparations for victims of alleged genocide.
Israel contends that Israel merely defends itself against the actions of Hamas. It argues that it
doesn’t have a genocidal intent and their allegations dilute the meaning of the crime. Accuses
Hamas of committing genocidal actions and having genocidal intent. Hamas prevented the
delivery of humanitarian aid.
Nationality, Ethnicity, Race or Religion – NERR.
Erga Omens allows a state to enforce treaty rights for common interest (common legal rights)
even if not directly affected.
Dolus Specialis: Specific intent, requiring the perpetrator to clearly seek and destroy the
particular group, in whole or in part.
Judgement:
Conditions requiring provisional measures are met. Israel must take all measures within its
powers to ensure Article II of the Genocide convention doesn’t get violated. Israel should
punish public incitement to commit these acts. Should provide humanitarian services and
assistance to Gazans. Israel must ensure preservation of all evidence related to the act.
Judge Xue supports South Africa's right to bring proceedings against Israel for alleged
breaches of the Genocide Convention. They emphasize the longstanding UN concern for
Palestine's situation under Israeli occupation, citing Gaza as an integral part of Palestinian
territory. They describe the dire humanitarian situation in Gaza, attributing it to hostilities
between Israel and Hamas, with significant civilian casualties. Judge Xue argues that the
international community has a vested interest in protecting the Palestinian people, citing legal
principles of erga omnes obligations. Finally, they endorse the provisional measures outlined
in the Court's order.
Week 7-8 Self-Determination
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South-West Africa) Notwithstanding Security Council Resolution:
RSA was given administration over Namibia by the League of Nation in 1919 through a
mandate. However, a war broke out in 1966 and lasted till 1990 between SWAPO and the
government of RSA as the latter started to integrate the territory’s administration with the
latter despite promise of independence and self-determination. Resolution 2145 cancelled the
mandate and brought it under UN’s supervision. RSA didn’t recognize the resolution and
continued administration.
Article 22 – Mandate System for countries that lost their sovereignty as a consequence of
WW-1.
Non-Annexation and Sacred Trust: The well-being and development of the inhabitants of
these territories form a "sacred trust of civilization." The administering states (mandatories)
are to act on behalf of the League, solely for the benefit of the peoples concerned, who are
recognized to have their own interests and potential for independent existence once they
reach a certain stage of development.
The Mandate system didn’t disappear with the League of Nations as principle of a "sacred
trust of civilization" (inhabitants of these territories have the right to develop and govern
themselves independently when they are capable. The mandates system was designed to
guide and prepare these peoples towards self-governance and independence) continued, as the
rights of the inhabitants of mandated territories were recognized as independent of the
League’s existence. UN assumed supervisory jurisdiction in light of Article 80 of the UN
Charter, nothing should alter the rights of people under previous international agreements.
South Africa's refusal to report to the UN and its attempt to unilaterally administer Namibia
violated the mandate’s principles. This conduct undermined international supervision and
denied the rights of Namibia’s inhabitants, contradicting the mandate’s purpose and the
sacred trust of civilization.
States were obliged to recognize South Africa’s administration of Namibia as illegal and
refrain from any actions that might imply recognition of South Africa’s authority. They were
also required to impose restrictions on relations with South Africa concerning Namibia to
uphold international law and support Namibia’s rights.
Plebiscite - A plebiscite is a direct vote by the people of a country or region in which they say
whether they agree or disagree with a particular policy (on a choice of government or ruler) –
must be held under the supervision of the UN to determine the wishes of the inhabitants
regarding their political future.
In this regard, Resolution 2145, adopted by the General Assembly, explicitly reaffirmed the
inalienable right of the people of Namibia to self-determination and independence. South
Africa’s refusal to adhere to international oversight and its attempts to unilaterally administer
Namibia were seen as direct violations of the principle of self-determination. By disregarding
the mandate's terms and failing to prepare Namibia for independence, South Africa denied the
people of Namibia their right to self-determination. Ultimate objective of sacred trust was the
self-determination of people.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory: Israel built a wall that would stretch up to 687 KMs in Palestinian Territory. It
cited the security of Israeli’s and its duty to protect the rights and interests of its citizens
(however, must be consistent with international law), however, the wall also curtailed
enjoyment of the most fundamental human rights by the Palestinian Population (they’d live in
enclosed settlements) and is hence, in violation of International Law. Effectively deported
Israeli settlements to Palestinian Areas (Contravene A. 49, 4th Geneva Convention).
UNGA in pursuance of A. 95 of the Charter and A. 65 of the statute referred the issue A l’ICJ.

The Court moreover considers that the political nature of the motives which may be said to
have inspired the request and the political implications that the opinion given might have are
of no relevance in the establishment of its jurisdiction to give such an opinion – Nuclear
Opinion - The Court is especially vested with particular responsibilities regarding the
Palestinian Territories. Palestine is a former territory placed under the mandate of the League
of Nations and its territory was subjected to a partition plan elaborated by the United Nations
General Assembly itself.

The wall fragments Palestinian territory, disrupting the territorial integrity necessary for self-
governance and undermining the viability of a future Palestinian state. It imposes severe
restrictions on movement, hindering access to essential services and economic activities,
thereby affecting social and economic development. Additionally, the wall facilitates the de
facto annexation of land by incorporating significant areas of Palestinian territory on the
Israeli side and supports the expansion of illegal Israeli settlements, altering the demographic
composition and making a contiguous Palestinian state less feasible.

All states are obligated not to recognize the illegal situation created by the wall and must
refrain from providing aid or assistance in maintaining it.

Higgins Dissent
Higgins argued that the real impediments to Palestinian self-determination are the ongoing
Israeli occupation and the absence of a peace settlement, rather than the construction of the
wall alone. She believed that the larger issue of occupation needs to be addressed to resolve
the self-determination question. The inability or unwillingness of both Israel and Palestine to
secure necessary conditions for peace and security is the core problem, wall oversimplifies
the issue. Further, since Palestinian land is already under occupation, wall cannot de-facto
constitute annexation.
Koroma: The construction of the wall constitutes annexation of occupied territory, violating
international law principles against the acquisition of territory by force. The International
Court of Justice (ICJ) has the jurisdiction to rule on such matters, which concern legal
consequences rather than the resolution of the Israeli-Palestinian conflict. The ICJ's findings
are firmly rooted in international law, asserting that the right to self-determination applies to
Palestinians and condemning the wall's infringement upon this right. The construction of the
wall violates humanitarian and human rights law, necessitating its immediate cessation and
reparations for damages. The international community has an obligation to refrain from
recognizing any unilateral changes in the status of the territory caused by the wall's
construction.

SC Canada, Reference Re Seccession of Quebec

Does international law give the National Assembly, legislature or government of Quebec the
right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a
right to self-determination under international law that would give the National Assembly,
legislature or government of Quebec the right to effect the secession of Quebec from Canada
unilaterally?
Seccession at International Law: International law does not grant a legal right for regions or
provinces within a sovereign state to secede unilaterally. Secession is generally not permitted
unless specifically authorized. Although international law does not explicitly deny unilateral
secession, it implicitly restricts it to exceptional circumstances, emphasizing the importance
of maintaining the territorial integrity of states. To be exercised within the framework of
existing states. External self-determination (secession) is only permissible in extreme cases,
such as colonialism or oppression. No incompatibility between right to achieve a full measure
of self-determination and territorial integrity. Quebec though might constitute “People”
despite no consensus on the definition of the word, doesn’t inherently receive a right thereof.
Quebecois occupy high positions in the government of Canada and they enjoy the same
freedoms as others. Mere failure to reach an agreement on amendments to the constitution
doesn’t amount to a denial of self-determination.
A right to external self-determination in situations of former colonies; where a people is
oppressed, as for example under foreign military occupation; or where a definable group is
denied meaningful access to government to pursue their political, economic, social and
cultural development. In all three situations, the people in question are entitled to a right to
external self-determination because they have been denied the ability to exert internally their
right to self- determination.
Unilateral Declaration of Independence in Respect of Kosovo:
The question was whether the declaration of independence was in accordance with
international law? The court interpreted it narrowly and stated that it wasn’t under a duty to
decide whether International Law entails a right of unilateral determination of independence.
Despite holding the declaration of Independence to not be in contravention with International
Law, it left open the question of whether Kosovo had a right to secede.
Relied on the Lotus Principle (Although it is supposed to protect state sovereignty as opposed
to operate as a General Principle of IL) to state that no rule of International Law prohibits
declaration of independence. Principle of territorial integrity applies only to relations between
states and does not prevent declarations of independence. Didn’t grapple with Remedial
Secession (Modern iteration of Self-Determination). Resolution 1244, which established an
interim regime for Kosovo, did not address the final status of Kosovo nor preclude the
issuance of a declaration of independence.
Simma’s Concurring Opinion
Disagreed with the ICJ's approach in the Kosovo Advisory Opinion, arguing that the Court's
reliance on the "Lotus" case's principle of 'what is not prohibited is permitted' was outdated.
The scope and extent of international law has expanded, with even national laws being
subject to international laws (A. 27 VCLT, International Human Rights regime).
Court should’ve delved into whether international law allows or even encourages such
declarations in certain circumstances. Should have delved more deeply into the concept of
self-determination. He proposed that the court could have recognized that self-determination
has evolved to permit remedial secession in extreme circumstances as a last resort. Should’ve
addressed contradictions between territorial integrity and self-determination. Court’s strict
reading of the question posed by UNGA was unwarranted.
Legal Consequences of the Separation of the Chagos Archipelago from Mauritius:
In 1965, amidst the decolonization wave, Britain established its final colony, the British
Indian Ocean Territory (BIOT), by detaching the Chagos Archipelago from Mauritius.
Mauritius, supported by the UN, began efforts in the 1980s to regain sovereignty over the
islands. In November 2023, the UK's Prime Minister announced plans to return the islands to
Mauritius. However, in December 2023, via a telegraph, it was revealed that negotiations
were banned by the UK, and the islands would not be handed over to Mauritius as promised.

The ICJ determined that the right to self-determination became customary international law
during the relevant period of decolonization (1965-1968), with the adoption of the
Declaration on the Granting of Independence to Colonial Countries and Peoples in 1960
being a significant moment in this regard.
The court affirmed that peoples of non-self-governing territories, including Mauritius and the
Chagos Archipelago, possess the right to self-determination and territorial integrity. When a
colonial power detaches a territory from a former colony without the freely expressed consent
of the people inhabiting that territory, it violates the right to self-determination.
The ICJ found that the detachment of the Chagos Archipelago from Mauritius was not based
on the free and genuine expression of the will of the people, rendering it unlawful. This
incomplete decolonization affected the legality of Mauritius' independence in 1968.
When a colonial power detaches a territory without the consent of its inhabitants, it
essentially imposes a decision upon them without allowing them to freely express their will
regarding their political future. The separation of the Chagos Archipelago from Mauritius in
the 1960s to create the British Indian Ocean Territory (BIOT) for military purposes resulted
in the forced displacement of the Chagossian people, who were banned from returning to
their ancestral lands. This violation of their right to self-determination led to significant
social, economic, and cultural hardships.
The Court stated the right to self-determination requires a free and genuine expression of the
will of the peoples concerned: Plebiscite, for instance. Informed Consent, Absence of
Coercion, Inclusivity and Participation, Respect for Human Rights, International Standards
and Norms & Independent Oversight.
Week – 9 Jurisdiction
Norwegian Loans Case:

Week 10 -Use of Force

Oil Platforms (Islamic Republic of Iran v. USA):
In November 1992, Iran filed a case with the ICJ against the USA, seeking reparations for the
destruction of its offshore oil platforms by the USA in October 1987 and April 1988, after a
US warship had hit a mine deployed by Iran. Iran based its claim on the 1955 Treaty of
Amity, Economic Relations, and Consular Rights (Amity Treaty) between Iran and the USA.
The USA filed a preliminary objection, asserting that the Amity Treaty did not cover acts of
self-defense and later filed a counterclaim alleging Iranian attacks on vessels in the Persian
Gulf.
The article states that the treaty shall not preclude any state from exercising its right to protect
its essential security interests. Self-defense cannot always be interpreted within the contours
of essential security interests, in light of circumstances, it must be read with A. 51 of the UN
Charter and CIL.
Necessity: There was no instance of armed attacks that could be attributed to Iran
conclusively. Proportionality: The USA attacked oil platforms, frigates and a vessel. The
attacks by the USA forces on Iranian oil installation cannot be justified as necessary measures
to protect essential security interests. A. 21 (1) (d) of the Amity Treaty.
Iran claimed the USA violated "freedom of commerce" under Article X (1) of the Amity
Treaty by attacking its oil platforms. The Court clarified this freedom pertained only to direct
trade between Iran and the USA. Iran argued the attacks hindered potential oil exports to the
USA, but the Court noted that in 1987 the platforms were already damaged and non-
operational, and by 1988, a US trade embargo on Iran meant no trade was occurring.
Consequently, the Court rejected Iran's claim for reparations as the attacks did not impact
existing trade.
To prove Iran violated the Amity Treaty by attacking vessels in the Persian Gulf, the USA had
to show that these attacks breached "freedom of commerce or navigation" specifically
between Iran and the USA, and that Iran was responsible. The Court determined that the
Treaty only protected vessels engaged in direct trade or navigation between the two countries,
not general freedom of navigation. Most incidents cited by the USA involved vessels under
other nations' flags, and the US frigate Samuel B. Roberts was a warship, not engaged in
commerce. Thus, the Court rejected the USA's counterclaim.
Armed Activities on the Territory of the Congo (DRC v. Uganda), ICJ 2005:
The Democratic Republic of Congo (DRC) asked the Court to decide that, starting from 02
August 1998, Uganda had engaged in “armed aggression” in the DRC. It argued 1) that
Uganda (a) engaged in military and paramilitary activities against the DRC, (b) occupied
DRC territory, and (c) provided military, logistic, financial and economic support to armed
groups in the DRC who operated against the government; 2) that Uganda committed and
failed to prevent violations of human rights and humanitarian law; and 3) that Uganda
engaged in and failed to prevent the illegal exploitation of Congolese natural resources. The
DRC sought as remedies, for example, the cessation of internationally wrongful acts,
reparation, and guarantees of non-repetition.
Uganda argued that its military presence and activities in the DRC were, for most part, based
on an invitation by the DRC and was authorized by/ consented to by the DRC. The Court
held that consent provided by one State to another is limited both in duration (i.e. until the
consent is withdrawn, consent was certainly withdrawn by 8 August 1998 when Kabila
accused Uganda of invading the DRC) and scope (i.e. to rely on consent, foreign forces must
act within the limits specified in the invitation). The Court concluded that DRC’s consent was
certainly withdrawn by 8 August 1998 and, irrespective of withdrawal, some Ugandan
military activities fell outside the scope of authorization provided by the DRC. These actions
can be justified, if at all, by self-defense. The Court also concluded that Uganda had occupied
the Ituri Province and, in Ituri, it failed to take measures to respect and ensure respect for
IHRL and IHL.

The ICJ ruled that agreements from 1999-2000, cited by Uganda, did not legitimize its
presence in the DRC, which aimed at troop withdrawal rather than consent. Even an
agreement for a temporary Ugandan presence in the Ruwenzori Mountains addressed security
needs but did not legalize prior Ugandan military actions. The ICJ ruled that the DRC's
consent for Uganda's military presence was limited in scope and location, only covering
actions against rebels in the eastern border. Uganda's extensive military operations in August
1998, which led to control of three border towns and their airports, exceeded this consent.
Even if the DRC had not withdrawn consent, these activities were unauthorized.
Occupation: Occupation requires establishing and exercising authority over the territory.
Uganda became an occupying power in Ituri by substituting its authority for that of the DRC
government. Criticism exists over the ICJ’s emphasis on actual control, potentially creating
legal gaps in responsibility. The Court held that occupation is a factual question, and once
established, Uganda had rights and duties as an occupying power.
Responsibility as occupying power: Uganda had to restore and ensure public order and safety
in Ituri, respecting local laws unless absolutely prevented. This included securing
international human rights and humanitarian law, protecting inhabitants from violence, and
not tolerating third-party violence. A party to an armed conflict is responsible for all acts by
its armed forces, even if they exceed their authority. Thus, Uganda was responsible for
looting, plundering, and exploitation of the DRC’s natural resources by its forces, violating
Article 43 of The Hague Regulations, despite acting against its instructions. Uganda was not
responsible for violations by rebel groups outside Ituri as they were not under Uganda’s
control.
Week – 11 State Responsibility
USA v. Iran (Hostage Crisis):
Iran failed to take requisite measures to protect the compound, obligation under CIL, and was
in fact complicit in the takeover. Sought provisional measures (2001 ICJ: the obligations
imposed by it are binding and the non-compliance of the same could give rise to an instance
of state responsibility and cause of action – A. 41). Iran contended that the issue was a
marginal problem of a larger problem i.e., USA’s interference in Iran for over 25 years and
such an examination would violate Iran’s sovereignty.
Iran and the United States are parties to the Vienna Conventions of 1961 and 1963 as well as
their protocols on Compulsory Settlement of Disputes. Negotiations underway, isn’t a reason
to exclude court’s jurisdiction. The Government of the Islamic Republic of Iran is under an
obligation to make reparation to the Government of the United States of America for the
injury caused. States have an obligation to exercise due diligence to prevent and punish
certain wrongful conduct by non-state actors within their territory, especially when that
conduct threatens the rights of other states under customary international law on state
responsibility.
Irrespective of the fact that the state did not participate directly a state can still be held
responsible. The ILC draft articles recognize that a state can be responsible for the wrongful
conduct of non-state actors when the state has failed to take necessary steps to prevent the
effects of that conduct, despite requests. – VCDCR also imposes a negative right (Art. 22
(1)). State responsibility that can arise not only from affirmative wrongful acts but also from
serious failures by the state to meet its international obligations. The court emphasized the
need for "irreparable prejudice" as a prerequisite for granting interim protective measures.
Interim protection based on a prima facie possibility of jurisdiction, even when jurisdiction
on the merits was clear.
Week 12 - State Jurisdiction
Nottebohm (Liechtenstein v. Guatamala): Friedrich Nottebohm, born in Germany in 1881,
moved to Guatemala in 1905 and became a successful businessman. In 1939, amidst World
War II, he obtained citizenship in Liechtenstein, losing his German citizenship in the process.
However, despite his new citizenship, Guatemala, where he resided, treated him as a German
citizen. He was arrested by Guatemala and handed over to the US. Guatemala initiated
proceedings and confiscated his property. Claimed reparations in 1951.
The International Court of Justice ruled against Liechtenstein, stating that Nottebohm's
naturalization as a citizen of Liechtenstein lacked a genuine link to the country. It was
determined that his citizenship was obtained solely for the purpose of wartime protection and
did not entail a meaningful connection to Liechtenstein's traditions, interests, or way of life.
Therefore, Guatemala was not obligated to recognize Nottebohm's Liechtenstein citizenship,
and Liechtenstein could not extend its protection to him vis-à-vis Guatemala. The Court
emphasized the principle of effective nationality (traditional concept of nationality conferring
jurisdiction was limited) (Article 5 Hague Convention; habitual residence, centre of interests,
family ties, public life participation, attachment to a country), asserting that individuals must
demonstrate a meaningful connection to a state to claim diplomatic protection. Extraterritorial
jurisdiction, Limited Liechtenstein’s ability to control factors outside its territory despite
involving its national. Diplomatic Protection, State may seek redress for injury to its national
as it’s considered an offence against the state.
Criticism: The ruling in the Nottebohm Case raised concerns regarding the possibility of
individuals being left without any effective nationality. While the principle of effective
nationality was typically applied in cases of dual nationality, could potentially leave millions
of individuals without diplomatic protection, especially in an era of globalization and
significant migration where people may lack strong ties to any specific country. (2006) ILC
took the position that there should be no additional requirement of a genuine link for a state
to exercise diplomatic protection, as long as the individual has the nationality of the state.

Corfu Channel Case:

Albania's mining of the Corfu channel in 1946, resulting in the destruction of two British
ships and the loss of 44 lives. The UK accused Albania of violating international law by not
informing ships of the danger and failing to clear the mines. Albania claimed that it had the
right to mine its territorial waters. UK conducted Minesweeping operations without Albania’s
consent.
State responsibility: The case introduced the principle of omission liability, holding states
accountable for damages resulting from their failure to act, such as failing to protect ships in
territorial waters or failing to remove hazards like mines.
Use of force in self-defense: The ICJ clarified that the use of force in self-defense is only
justified in response to an actual or imminent armed attack, not merely to remove hazards like
mines.
Court held that a right to innocent passage, as long as the passage is not prejudicial to the
coastal state's peace, security, or tranquility, existed during times of peace through straits like
the Corfu Channel, which connected two parts of the high seas. The Court accepted that some
Albanian regulation of passage through the Channel would have been acceptable, but not to
the extent of demanding prior authorization, or of barring the passage of warships outright.
Irrespective of who placed it, the court held that the Albanian government would’ve had
knowledge of such a minefield and should’ve notified other states accordingly.
The Court famously stated that such a right to intervention represented a policy of force,
which historically has led to serious abuses and has no place in international law. This
statement reflects the ICJ's stance against unilateral actions by states that infringe upon the
sovereignty of other nations.
Furthermore, the ICJ also dismissed the British claim that Operation Retail was justified as an
act of self-protection or self-help. The Court emphasized the importance of respecting
territorial sovereignty as a fundamental principle of international relations.
Despite acknowledging extenuating circumstances for the United Kingdom, particularly
Albania's conduct in the aftermath of the mining incident, the Court did not deem these
circumstances as validating Operation Retail.
Enrica Lexie:
Italian marine onboard an oil tanker shot dead two Indian fisherman 20.3 Nautical miles
away from the coast of Kerala. They were intercepted and later arrested. Italy argued that
India had no jurisdiction to try the Italian marines and that jurisdiction belonged exclusively
to Italy as the flag state of the Enrica Lexie. Italy asserted the marines had immunity as state
officials.
Territorial jurisdiction vs. flag state jurisdiction: The incident occurred in India's Exclusive
Economic Zone (EEZ), but not in its territorial waters. This raises the question of whether
India, as the coastal state, has jurisdiction over the incident, or whether Italy, as the flag state
of the Enrica Lexie, has exclusive jurisdiction.
2. Jurisdiction in the EEZ: The case highlights the complex legal regime governing
jurisdiction in the EEZ. While UNCLOS grants coastal states certain sovereign rights and
jurisdiction in the EEZ, it is not the same as territorial sovereignty. The extent to which a
coastal state can exercise criminal jurisdiction in the EEZ is not entirely clear.
3. Immunity of state officials: The case also involves the question of whether the Italian
marines, as state officials acting in their official capacity, are immune from the jurisdiction of
Indian courts under the principle of state immunity.
Analysis:
The Tribunal's interpretation of Article 92 expanded the concept of exclusive flag state
jurisdiction to include not only enforcement jurisdiction but also prescriptive jurisdiction (the
legislature can create, amend or repeal legislation covering any subject or any person,
irrespective of the person's nationality or location) – Extended Territoriality Principle, as if it
was committed in its territory. The Tribunal defined prescriptive jurisdiction as the authority
of a state to make laws, rules, or regulations over persons, property, or conduct. It concluded
that Article 92 is violated when a state other than the flag state seeks to prescribe laws, rules,
or regulations over a ship of the flag state, or applies or enforces such laws, rules, or
regulations in respect of such a ship.
The Tribunal's decision affirmed India's jurisdiction over the Enrica Lexie incident based on
principles of territoriality and passive personality. It rejected India's argument that a territorial
tort exception to immunity would apply to the Italian marines, stating that the marines were
not on Indian territory when the incident occurred (EEZ v. Contiguous).
- In the contiguous zone, a coastal state may exercise the control necessary to prevent and
punish infringement of its customs, fiscal, immigration or sanitary laws and regulations
within its territory or territorial sea (Article 33 UNCLOS).
- In the EEZ, a coastal state has sovereign rights for the purpose of exploring, exploiting,
conserving and managing natural resources, as well as jurisdiction over artificial islands,
marine scientific research and protection of the marine environment (Article 56 UNCLOS).
However, other states enjoy freedom of navigation and overflight in the EEZ (Article 58
UNCLOS).
The jurisdiction of the coastal state in the EEZ is therefore not the same as territorial
sovereignty. Note: Evolution from Lotus, Example of Shots fired from across the border.
WEEK 14: CRITIQUES OF INTERNATIONAL LAW

FEMINIST CRITIQUE
Women are similarly absent from the highest ranks of the United Nations, NATO/
the OSCE, and other influential international and regional organizations.
 Why is this still true, when international issues are of ever-increasing importance?
 Thinking in particular about international law, perhaps it is because the traditional
subjects of international law appear, at first glance at least, to have very little to do
with the immediate concerns of women .International law has historically looked at
relations between states, at issues of sovereignty, international security, territorial
integrity, and so on. These rarified concerns may seem to have little to do with
women's lived experiences, gender relations, reproductive rights, family law,
domestic violence, property, workplace equality, harassment, sexual violence.
 To the minimal extent that women have entered the male domain of international law
and policy, they are often to be found clustered in its "softer" comers, where you
find the more "feminine," "human interest" subjects such as refugee law and
human rights law, how to shelter and feed the thousands of refugees who fled
those air wars and failed states. Although civil and political rights are of pressing
concern to political elites all the world over, they may be of distinctly lesser concern
to most of the world’s women,
 It is the state and only the state that is the subject of international law. Women have
rarely been heads of state, so this exclusive focus on state relations renders women-
and, for that matter, most other individual humans-more or less Invisible that is the
subject of international law. The traditional understanding of human rights law, if
thousands of men systematically beat or rape thousands of women, this is not a
human rights abuse unless the men are state agents acting on the orders of the state
 Domestic violence, sexual trafficking, and other forms of discrimination mar the
lives of millions of women around the globe, but international law's blindness to
The violence that doesn't involve state action has meant that such abuses have, for
years, been largely invisible-or, at any rate, relegated to the domain of national
criminal law, rather than international human rights law and within the
domestic law, there Exists distinctions between the private and the public realms of
behavior. Similarly, the international law understanding of what constitutes a state far
predates the human rights revolution. For example, Kuwait is a state with full UN
voting rights, even though it denies the vote to women within its own borders.
 There is no international law mechanism for denying a state the right to participate
fully in the international system on the grounds of gender discrimination. As long as
a state maintains its defined territory, permanent population, and some form of
government with the capacity to engage in relations with other states, its statehood is
more or less unassailable within international law.nAn easy assumption, common
still even in human rights law, that "maleness" is the norm, and progress in gender
equity will come only when women are treated "the same" as men
 A close look at the Universal Declaration of Human Rights--or even, more recently, at
The Convention on the Elimination of All Forms of Discrimination Against Women
(CEDA W)--: the goal for women is "equality," to have access to education, jobs,
and political power on the same basis as men. Why, after all, should women want
 the very same thing men already have? Women face different reproductive choices
and different social constraints than do men. Is the male standard the right
standard for women?
 CEDA W suggests that nothing need be changed except stereotypes and formal
barriers to access: just let the women in, and that's that. CEDA W and other
human rights conventions thus take it for granted that the rights that "matter" most
are precisely the rights that have, historically, mattered most to male political
elites: that is, civil and political rights.The international community and human
rights law groups continue to resist giving social and economic rights equal
standing with civil and political rights

A CRTIQUE OF THE FEMINIST CRITIQUE

 The first phase feminist critique of international law and human rights takes little
account of the critique of the very concept of rights,
 Some feminists have begun to raise questions about essentialist/universalist
approaches in the context of international law.Feminists have long criticized both
domestic and international civil and human rights documents that take it for granted
that maleness is the norm
 The second phase critique asks whether there is really any such thing as
 "femaleness”Is there a distinct and uncontested "women's perspective" that is
different from a
 "male perspective," and if so, is that women's perspective simple to identify and
define?NCan a small group of privileged, first world women lawyers presume to say
anything at all about "women" as an international class?

CRTICAL RACE THEORY

 The rules of "international governance" have been exposed anew as inequitable,
oppressive, destructive, and highly hierarchically ordered by race. New streams of
scholarship and action are now seeking to reconceptualize and restructure both
domestic and international law. At the core of this agitation are critical race theory
("CRT") and Third World approaches to International Law national law
("TWAIL").

 A casual examination of CRT' and international law deceptively indicates two

contradictory if convergent, thrusts. At first blush, CRT is located in a particular
cultural and political space. It is born out of the American saga of racist and sexist
subordination and resistance. As an intellectual movement, it is steeped in
European-American postmodernism. CRT is so site and context specific that it
does not immediately make any universal claims of itself. CRT has thus far only
concerned itself with the struggles of various minority groups in the United States.
 Two of these key innovations by CRT-multidimensionality and intersectionality -are
tools that debunk essentialist constructions and allow for a more nuanced
understanding of the use of identities as social and legal phenomena. It concerns
itself with social justice for "outsider" groups, that is, groups that have traditionally
been subordinated in the United States has served mainly to express the shortcomings
of civil rights and social reforms that signify formal, but not substantive change.
TWAIL
 The adverse effects of globalization, which disproportionately negatively impact the
Third World, has cemented an unjust international, political and economic order. For
example, investment and trade deals often disregard the environment concerns and
erode the rights of workers. CRT offers synergistic possibilities to TWAIL, the one
movement that has the potential to lead the charge for the transformation of
international law
 At the core of TWAILian thinking are several key interests and assumptions.The
central purpose is the exposure and elimination of norms, processes and institutions
that subordinate the Third World to the European West. Second, TWAIL seeks to
create conditions-both intellectual and material-that will usher a new compact of
international law. It counters the phantom of sovereign equality between states,
political and economic imbalances between peoples and states, and the paternalism of
imperial projects such as human rights that foist a false consciousness on the world