INTERNATIONAL LAW

Cases and Material

1. Statehood Self-determination, recognition

2. Statehood Acquisition of territory
3. Statehood Maritime territory
4. Statehood Nationality and protection of individuals
5. Other subjects of international law
6. Peaceful coexistence Immunities and jurisdiction
7. Legislative function Custom and treaty
8. Legislative function Relations between international and municipal laws
9. Judicial function Counter-measures
10. Judicial function International responsibility of the state
11. Executive function Self-defense
12. Executive function The united Nations
 Session 1: Self-determination, recognition

Cases:
1. Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12
2. Accordance with International Law of the Unilateral Declaration of Independence in Respect of
Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 403
3. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory
Opinion, I.C.J. Reports 2019, p. 95

1. Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12

“ 148. In the case concerning Reparation for Injuries Suffered in the Service of the United Nations, the
Court observed: ‘The subjects of law in any legal system are not necessarily identical in their nature or in
the extent of their rights, and their nature depends upon the needs of the community’ (I.C.J.Reports 1949,
p. 178). In examining the propositions of Mauritania regarding the legal nature of the Bilad Shinguitti or
Mauritanian entity, the Court gives full weight both to that observation and to the special characteristics
of the Saharan region and peoples with which the present proceedings are concerned. Some criterion has,
however, to be employed to determine in any particular case whether what confronts the law is or is not
legally an ‘entity’. The Court, moreover, notes that in the Reparation case the criterion which it applied
was to enquire whether the United Nations Organization - the entity involved - was in ‘such a position
that it possesses, in regard to its Members, rights which it is entitled to ask them to respect’ (ibid.). In that
Opinion, no doubt, the criterion was applied in a somewhat special context. Nevertheless, it expresses the
essential test where a group, whether composed of States, of tribes or of individuals, is claimed to be a
legal entity distinct from its members.
149. In the present case, the information before the Court discloses that, at the time of the Spanish
colonization, there existed many ties of a racial, linguistic, religious, cultural and economic nature
between various tribes and emirates whose peoples dwelt in the Saharan region which today is comprised
within the Territory of Western Sahara and the Islamic Republic of Mauritania. It also discloses, however,
the independence of the emirates and many of the tribes in relation to one another and, despite some
forms of common activity, the absence among them of any common institutions or organs, even of a quite
minimal character. Accordingly, the Court is unable to find that the information before it provides any
basis for considering the emirates and tribes which existed in the region to have constituted, in another
phrase used by the Court in the Reparation case, ‘an entity capable of availing itself of obligations
incumbent upon its Members’ (ibid.). Whether the Mauritanian entity is described as the Bilad Shinguitti,
or as the Shinguitti ‘nation’, as Mauritania suggests, or as some form of league or association, the
difficulty remains that it did not have the character of a personality or corporate entity distinct from the
several emirates and tribes which composed it. The proposition, therefore, that the Bilad Shinguitti should
be considered as having been a Mauritanian ‘entity’ enjoying some form of sovereignty in Western
Sahara is not one that can be sustained.”

2. Accordance with International Law of the Unilateral Declaration of Independence in Respect of

Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 403

“79. During the eighteenth, nineteenth and early twentieth centuries, there were numerous instances of
declarations of independence, often strenuously opposed by the State from which independence was
being declared. Sometimes a declaration resulted in the creation of a new State, at others it did not. In no
case, however, does the practice of States as a whole suggest that the act of promulgating the declaration
was regarded as contrary to international law. On the contrary, State practice during this period points
clearly to the conclusion that international law contained no prohibition of declarations of independence.
During the second half of the twentieth century, the international law of self-determination developed in
such a way as to create a right to independence for the peoples of non-self-governing territories and
peoples subject to alien subjugation, domination and exploitation (cf. Legal Consequences for States of
the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, pp. 31-32, paras. 52-53; East Timor
(Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29; Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I),
pp. 171-172, para. 88). A great many new States have come into existence as a result of the exercise of
this right. There were, however, also instances of declarations of independence outside this context. The
practice of States in these latter cases does not point to the emergence in international law of a new rule
prohibiting the making of a declaration of independence in such cases.
[...]
82. A number of participants in the present proceedings have claimed, although in almost every instance
only as a secondary argument, that the population of Kosovo has the right to create an independent State
either as a manifestation of a right to self-determination or pursuant to what they described as a right of
‘remedial secession’ in the face of the situation in Kosovo. The Court has already noted (see paragraph 79
above) that one of the major developments of international law during the second half of the twentieth
century has been the evolution of the right of self-determination. Whether, outside the context of non-self-
governing territories and peoples subject to alien subjugation, domination and exploitation, the
international law of self-determination confers upon part of the population of an existing State a right to
separate from that State is, however, a subject on which radically different views were expressed by those
taking part in the proceedings and expressing a position on the question. Similar differences existed
regarding whether international law provides for a right of ‘remedial secession’ and, if so, in what
circumstances. There was also a sharp difference of views as to whether the circumstances which some
participants maintained would give rise to a right of ‘remedial secession’ were actually present in
Kosovo.”

3. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965,
Advisory Opinion, I.C.J. Reports 2019, p. 95

“144. The Court will have to determine the nature, content and scope of the right to self-determination
applicable to the process of decolonization of Mauritius, a non-self-governing territory recognized as
such, from 1946 onwards, both in United Nations practice and by the administering Power itself. The
Court is conscious that the right to self-determination, as a fundamental human right, has a broad scope of
application. However, to answer the question put to it by the General Assembly, the Court will confine
itself, in this Advisory Opinion, to analysing the right to self-determination in the context of
decolonization.
[...]
150. The adoption of resolution 1514 (XV) of 14 December 1960 represents a defining moment in the
consolidation of State practice on decolonization. Prior to that resolution, the General Assembly had
affirmed on several occasions the right to self-determination (resolutions 637 (VII) of 16 December 1952,
738 (VIII) of 28 November 1953 and 1188 (XII) of 11 December 1957) and a number of non-self-
governing territories had acceded to independence. General Assembly resolution 1514 (XV) clarifies the
content and scope of the right to self-determination. The Court notes that the decolonization process
accelerated in 1960, with 18 countries, including 17 in Africa, gaining independence. During the 1960s,
the peoples of an additional 28 non-self-governing-territories exercised their right to self-determination
and achieved independence. In the Court’s view, there is a clear relationship between resolution 1514
(XV) and the process of decolonization following its adoption.
152. The Court considers that, although resolution 1514 (XV) is formally a recommendation, it has a
declaratory character with regard to the right to self-determination as a customary norm, in view of its
content and the conditions of its adoption. The resolution was adopted by 89 votes with 9 abstentions.
None of the States participating in the vote contested the existence of the right of peoples to self-
determination. Certain States justified their abstention on the basis of the time required for the
implementation of such a right.
[...]
156. The means of implementing the right to self-determination in a non-self-governing territory,
described as ‘geographically separate and . . . distinct ethnically and/or culturally from the country
administering it’, were set out in Principle VI of General Assembly resolution 1541 (XV), adopted on 15
December 1960:
‘A Non-Self-Governing Territory can be said to have reached a full measure of self-government by:
(a) Emergence as a sovereign independent State;
(b) Free association with an independent State; or
(c) Integration with an independent State.’
157. The Court recalls that, while the exercise of self-determination may be achieved through one of the
options laid down by resolution 1541 (XV), it must be the expression of the free and genuine will of the
people concerned. However, ‘[t]he right of self-determination leaves the General Assembly a measure of
discretion with respect to the forms and procedures by which that right is to be realized’ (Western Sahara,
Advisory Opinion, I.C.J. Reports 1975, p. 36, para. 71).
158. The right to self- determination under customary international law does not impose a specific
mechanism for its implementation in all instances [...]
160. The Court recalls that the right to self-determination of the people concerned is defined by reference
to the entirety of a non-self-governing territory, as stated in the aforementioned paragraph 6 of resolution
1514 (XV) (see paragraph 153 above). Both State practice and opinio juris at the relevant time confirm
the customary law character of the right to territorial integrity of a non-self- governing territory as a
corollary of the right to self- determination. No example has been brought to the attention of the Court in
which, following the adoption of resolution 1514 (XV), the General Assembly or any other organ of the
United Nations has considered as lawful the detachment by the administering Power of part of a non-self-
governing territory, for the purpose of maintaining it under its colonial rule. States have consistently
emphasized that respect for the territorial integrity of a non-self- governing territory is a key element of
the exercise of the right to self- determination under international law. The Court considers that the
peoples of non-self-governing territories are entitled to exercise their right to self-determination in
relation to their territory as a whole, the integrity of which must be respected by the administering Power.
It follows that any detachment by the administering Power of part of a non-self- governing territory,
unless based on the freely expressed and genuine will of the people of the territory concerned, is contrary
to the right to self-determination.”
 Session 2: Acquisition of territory

Cases:
1. Island of Palmas case (Netherlands v USA), Arbitral Award (4 April 1928)
2. Legal Status of Eastern Greenland (Norway v Denmark), PCIJ (5 April 1933), Series A/B No. 53
3. Frontier Dispute (Burkina Faso v Mail), Judgment, I.C.J. Reports 1986, p. 554
4. Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v Malaysia), Judgment, I.C.J. Reports
2002, p. 625

1. Island of Palmas case (Netherlands v USA), Arbitral Award (4 April 1928)

“Territorial sovereignty is, in general, a situation recognized and delimited in space, either by so-called
natural frontiers as recognised by international law or by outward signs of delimitation that are
undisputed, or else by legal engagements entered into between interested neighbours, such as frontier
conventions, or by acts of recognition of States within fixed boundaries. If a dispute arises as to the
sovereignty over a portion of territory, it is customary (839) to examine which of the States claiming
sovereignty possesses a title—cession conquest, occupation, etc.—superior to that which the other State
might possibly bring forward against it. However, if the contestation is based on the fact that the other
Party has actually displayed sovereignty, it cannot be sufficient to establish the title by which territorial
sovereignty was validly acquired at a certain moment; it must also be shown that the territorial
sovereignty has continued to exist and did exist at the moment which for the decision of the dispute must
be considered as critical. This demonstration consists in the actual display of State activities, such as
belongs only to the territorial sovereign.
Titles of acquisition of territorial sovereignty in present-day international law are either based on an act of
effective apprehension, such as occupation or conquest, or, like cession, presuppose that the ceding and
the cessionary Powers or at least one of them, have the faculty of effectively disposing of the ceded
territory. In the same way natural accretion can only be conceived of as an accretion to a portion of
territory where there exists an actual sovereignty capable of extending to a spot which falls within its
sphere of activity. It seems therefore natural that an element which is essential for the constitution of
sovereignty should not be lacking in its continuation. So true is this, that practice, as well as doctrine,
recognizes—though under different legal formulae and with certain differences as to the conditions
required—that the continuous and peaceful display of territorial sovereignty (peaceful in relation to other
States) is as good as a title. The growing insistence with which international law, ever since the middle of
the 18th century, has demanded that the occupation shall be effective would be inconceivable, if
effectiveness were required only for the act of acquisition and not equally for the maintenance of the
right. If the effectiveness has above all been insisted on in regard to occupation, this is because the
question rarely arises in connection with territories in which there is already an established order of
things. Just as before the rise of international law, boundaries of lands were necessarily determined by the
fact that the power of a State was exercised within them, so too, under the reign of international law, the
fact of peaceful and continuous display is still one of the most important considerations in establishing
boundaries between States.
[...]
The principle that continuous and peaceful display of the functions of State within a given region is a
constituent element of territorial sovereignty is not only based on the conditions of the formation of
independent States and their boundaries (as shown by the experience of political history) as well as on an
international jurisprudence and doctrine widely accepted; this principle has further been recognized in
more than one federal State, where a jurisdiction is established in order to apply, as need arises, rules of
international law to the interstate relations of the States members. This is the more significant, in that it
might well be conceived that in a federal State possessing a complete judicial system for interstate matters
—far more than in the domain of international relations properly so-called—there should be applied to
territorial questions the principle that, failing any specific provision of law to the contrary, a jus in re once
lawfully acquired shall prevail over de facto possession however well established.
[...]
Manifestations of territorial sovereignty assume, it is true, different forms, according to conditions of time
and place. Although continuous in principle, sovereignty cannot be exercised in fact at every moment on
every point of a territory. The intermittence and discontinuity compatible with the maintenance of the
right necessarily differ according as inhabited or uninhabited regions are involved, or regions enclosed
within territories in which sovereignty is incontestably displayed or again regions accessible from, for
instance, the high seas. It is true that neighbouring States may by convention fix limits to their own
sovereignty, even in regions such as the interior of scarcely explored continents where such sovereignty is
scarcely manifested, and in this way each may prevent the other from any penetration of its territory. The
delimitation of Hinterland may also be mentioned in this connection. If, however, no conventional line of
sufficient topographical precision exists or if there are gaps in the frontiers otherwise established, or if a
conventional line leaves room for doubt, or if, as e.g. in the case of an island situated in the high seas, the
question arises whether a title is valid erga omnes, the actual continuous and peaceful display of State
functions is in case of dispute the sound and natural critérium of territorial sovereignty.
[...]
The title alleged by the United States of America as constituting the immediate foundation of its claim is
that of cession, brought about by the Treaty of Paris, which cession transferred all rights of sovereignty
which Spain may have possessed in the region indicated in Article III of the said Treaty and therefore also
those concerning the Island of Palmas (or Miangas).
[...]
The essential point is therefore whether the Island of Palmas (or Miangas) at the moment of the
conclusion and coming into force of the Treaty of Paris formed a part of the Spanish or Netherlands
territory. The United States declares that Palmas (or Miangas) was Spanish territory and denies the
existence of Dutch sovereignty; the Netherlands maintain the existence of their sovereignty and deny that
of Spain. Only if the examination of the arguments of both Parties should lead to the conclusion that the
Island of Palmas (or Miangas) was at the critical moment neither Spanish nor Netherlands territory, would
the question arise whether—and, if so, how—the conclusion of the Treaty of Paris and its notification to
the Netherlands might have interfered with the rights which the Netherlands or the United States of
America may claim over the island in dispute...
[...]
As pointed out above, the United States bases its claim, as successor of Spain, in the first place on
discovery. In this connection a distinction must be made between the discovery of the Island of Palmas
(orMiangas) as such, or as a part of the Philippines, which, beyond doubt, were discovered and even
occupied and colonised by the Spaniards. This latter point, however, will be considered with the argument
relating to contiguity; the problem of discovery is considered only in relation to the island itself which
forms the subject of the dispute.
[...]
The fact that the island was originally called, not, as customarily, by a native name, but by a name
borrowed from a European language, and referring to the vegetation, serves perhaps to show that no
landing was made or that the island was uninhabited at the time of discovery. Indeed, the reports on
record which concern the discovery of the Island of Palmas state only that an island was "seen", which
island, according to the geographical data, is probably identical with that in dispute. No mention is made
of landing or of contact with the natives. And in any case no signs of taking possession or of
administration by Spain have been shown or even alleged to exist until the very recent date to which the
reports of Captain Malone and M. Alvarez, of 1919. contained in the United States Memorandum, relate.
[...]
If the view most favourable to the American arguments is adopted—with every reservation as to the
soundness of such view—that is to say, if we consider as positive law at the period in question the rule
that discovery as such, i.e. the mere fact of seeing land, without any act, even symbolical, of taking
possession, involved ipso jure territorial sovereignty and not merely an ‘inchoate title’, a jus ad rent, to be
completed eventually by an actual and durable taking of possession within a reasonable time, the question
arises whether sovereignty yet existed at the critical date, i.e. the moment of conclusion and coming into
force of the Treaty of Paris. As regards the question which of different legal systems
[...]
...discovery alone, without any subsequent act, cannot at the present time suffice to prove sovereignty
over the Island of Palmas (or Miangas) ; and in so far as there is no sovereignty, the question of an
abandonment properly speaking of sovereignty by one State in order that the sovereignty of another may
take its place does not arise.
If on the other hand the view is adopted that discovery does not create a definitive title of sovereignty, but
only an ‘inchoate’ title, such a title exists, it is true, without external manifestation. However, according to
the view that has prevailed at any rate since the 19th century, an inchoate title of discovery must be
completed within a reasonable period by the effective occupation of the region claimed to be discovered.
[...] Now, no act of occupation nor, except as to a recent period, any exercise of sovereignty at Palmas by
Spain has been alleged. But even admitting that the Spanish title still existed as inchoate in 1898 and must
be considered as included in the cession under Article III of the Treaty of Paris, an inchoate title could not
prevail over the continuous and peaceful display of authority by another State; for such display may
prevail even over a prior, definitive title put forward by another State.
[...]
(868) The conditions of acquisition of sovereignty by the Netherlands are therefore to be considered as
fulfilled. It remains now to be seen whether the United States as successors of Spain are in a position to
bring forward an equivalent or stronger title. This is to be answered in the negative. (869) The title of
discovery, if it had not been already disposed of by the Treaties of Munster and Utrecht would, under the
most favourable and most extensive interpretation, exist only as an inchoate title, as a claim to establish
sovereignty by effective occupation. An inchoate title however cannot prevail over a definite title founded
on continuous and peaceful display of sovereignty.
[...]
The Netherlands tide of sovereignty, acquired by continuous and peaceful display of State authority
during a long period of time going probably back beyond the year 1700, therefore holds good.”

2. Legal Status of Eastern Greenland (Norway v Denmark), PCIJ (5 April 1933), Series A/B No. 53

“ The first Danish argument is that the Norwegian occupation of part of the East coast of Greenland is
invalid because Denmark has claimed and exercised sovereign rights over Greenland as a whole for a
long time and has obtained thereby a valid title to sovereignty. The date at which such Danish sovereignty
must have existed in order to render the Norwegian occupation invalid is the date at which the occupation
took place, viz., July 10th, 1931.
The Danish claim is not founded upon any particular act of occupation but alleges—to use the phrase
employed in the Palmas Island decision of the Permanent Court of Arbitration, April 4th, 1928—a title
‘founded on the peaceful and continuous display of State authority over the island’. It is based upon the
view that Denmark now enjoys all the rights which the King of Denmark and Norway enjoyed over
Greenland up till 1814. Both the existence and the extent of these rights must therefore be considered, as
well as the Danish claim to sovereignty since that date.
[...]
Before proceeding to consider in detail the evidence submitted to the Court, it may be well to state that a
claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely
upon continued display of authority, involves two elements each of which must be shown (46) to exist:
the intention and will to act as sovereign, and some actual exercise or display of such authority.
[...]
It is impossible to read the records of the decisions in cases as to territorial sovereignty without observing
that in many cases the tribunal has been satisfied with very little in the way of the actual exercise of
sovereign rights, provided that the other State could not make out a superior claim. This is particularly
true in the case of claims to sovereignty over areas in thinly populated or unsettled countries.
[...]
(50) The conclusion to which the Court is led is that, bearing in mind the absence of any claim to
sovereignty by another Power, and the Arctic and inaccessible character of the uncolonized (52) parts of
the country, the King of Denmark and Norway displayed during the period from the founding of the
colonies by Hans Egede in 1721 up to 1814 his authority to an extent sufficient to give his country a valid
claim to sovereignty, and that his rights over Greenland were not limited to the colonized area.
[...]
(62) These acts, coupled with the activities of the Danish hunting expeditions which were supported by
the Danish Government, the increase in the number of scientific expeditions (63) engaged in mapping and
exploring the country with the authorization and encouragement of the Government, even though the
expeditions may have been organized by nonofficial institutions, the occasions on which the Godthaab, a
vesse1 belonging to the State and placed at one time under the command of a naval officer, was sent to
the East coast on inspection duty, the issue of permits by the Danish authorities, under regulations issued
in 1930, to persons visiting the eastern coast of Greenland, show to a sufficient extent—even when
separated from the history of the preceding periods—the two elements necessary to establish a valid title
to sovereignty, namely: the intention and will to exercise such sovereignty and the manifestation of State
activity.”

3. Frontier Dispute (Burkina Faso v Mail), Judgment, I.C.J. Reports 1986, p. 554

“63. Apart from the texts and maps listed above, the Parties have invoked in support of their respective
contentions the ‘colonial effectivités’, in other words, the conduct of the administrative authorities as
proof of the effective exercise of territorial jurisdiction in the region during the colonial period. For
Burkina Faso, the effectivités can support an existing title, whether written or cartographical, but when
their probative value has to be assessed they must be systematically compared with the title in question; in
no circumstances can they be substituted for the title.
For its part, Mali admits that in principle the effectivités cannot be brought into operation where they are
contrary to the text of a treaty, but argues that in a situation where there is no boundary described in
conventional or legislative form, it is necessary to ascertain the boundary by other methods, and an
investigation of the effectivités then becomes essential. The role played in this case by such effectivités is
complex, and the Chamber will have to weigh carefully the legal force of these in each particular
instance. It must however state forthwith, in general terms, what legal relationship exists between such
acts and the titles on which the implementation of the principle of uti possidetis is grounded. For this
purpose, a distinction must be drawn among several eventualities. Where the act corresponds exactly to
law, where effective administration is additional to the uti possidetis juris, the only role of effectivité is to
confirm the exercise of the right derived from a legal title. Where the act does not correspond to the law,
where the territory which is the subject of the dispute is effectively administered by a State other than the
one possessing the legal title, preference should be given to the holder of the title. In the event that the
effectivité does not co-exist with any legal title, it must invariably be taken into consideration. Finally,
there are cases where the legal title is not capable of showing exactly the territorial expanse to which it
relates. The effectivité can then play an essential role in showing how the title is interpreted in practice.”

4. Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v Malaysia), Judgment, I.C.J.
Reports 2002, p. 625

“124. In view of the foregoing, the Court concludes that it cannot accept Malaysia's contention that there
is an uninterrupted series of transfers of title from the alleged original title-holder, the Sultan of Sulu, to
Malaysia as the present one. It has not been established with certainty that Ligitan and Sipadan belonged
to the possessions of the Sultan of Sulu nor that any of the alleged subsequent title-holders had a treaty
based title to these two islands. The Court can therefore not find that Malaysia has inherited a treaty-based
title from its predecessor, the United Kingdom of Great Britain and Northern Ireland.
125. The Court has already found that the 1891 Convention does not provide Indonesia with a treaty-
based title and that title to the islands did not pass to Indonesia as successor to the Netherlands and the
Sultan of Bulungan (see paragraphs 94 and 96 above).
126. The Court will therefore now consider whether evidence furnished by the Parties with respect to
‘effectivités’ relied upon by them provides the basis for a decision—as requested in the Special
Agreement—on the question to whom sovereignty over Ligitan and Sipadan belongs. The Court recalls
that it has already ruled in a number of cases on the legal relationship between ‘effectivités’ and title. The
relevant passage for the present case can be found in the Judgment in the Frontier Dispute (Burkina
Faso/Republic of Mali) case, where the Chamber of the Court stated after having said that ‘a distinction
must be drawn among several eventualities’: ‘[in the event that the effectivité does not co-exist with any
legal title, it must invariably be taken into consideration’ (I. C. J. Reports 1986, p. 587, para. 63; see also
Territorial Dispute (Libyan Arab Jamahiriya/Chad), I. C. J. Reports 1994, p. 38, paras. 75-76; Land and
Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea
intervening), Judgment, Merits, I. C. J. Reports 2002, pp. 353-353, para. 68).
[...]
127. Both Parties claim that the effectivités on which they rely merely confirm a treaty-based title. On an
alternative basis, Malaysia claims that it acquired title to Ligitan and Sipadan by virtue of continuous
peaceful possession and administration, without objection from Indonesia or its predecessors in title. The
Court, having found that neither of the Parties has a treaty-based title to Ligitan and Sipadan (see
paragraphs 92 and 124 above), will consider these effectivités as an independent and separate issue.
[...]
140. Finally, Indonesia states that the waters around Ligitan and Sipadan have traditionally been used by
Indonesian fishermen. The Court observes, however, that activities by private persons cannot be seen as
effectivités if they do not take place on the basis of official regulations or under governmental authority.
141. The Court concludes that the activities relied upon by Indonesia do not constitute acts à titre de
souverain reflecting the intention and will to act in that capacity.
[...]
148. The Court notes that the activities relied upon by Malaysia, both in its own name and as successor
State of Great Britain, are modest in number but that they are diverse in character and include legislative,
administrative and quasi-judicial acts. They cover a considerable period of time and show a pattern
revealing an intention to exercise State functions in respect of the two islands in the context of the
administration of a wider range of islands.
[...]
149. Given the circumstances of the case, and in particular in view of the evidence furnished by the
Parties, the Court concludes that Malaysia has title to Ligitan and Sipadan on the basis of the effectivités
referred to above.”
 Session 3: Maritime territory

Cases:
1. Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1
February 2011, ITLOS Reports 2011, p. 10
2. Fisheries Jurisdiction (United Kingdom v. Zeeland), Merits, Judgment, I.C.J. Reports 1974, p. 3

1. Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion,
1 February 2011, ITLOS Reports 2011, p. 10

“ 143. Contractors and sponsoring States must cooperate with the Authority in the establishment of
monitoring programmes to evaluate the impact of deep seabed mining on the marine environment,
particularly through the creation of ‘impact reference zones’ and ‘preservation reference zones’
(regulation 31, paragraphs 6 and 7, of the Nodules Regulations and regulation 33, paragraph 6, of the
Sulphides Regulations). A comparison between environmental conditions in the ‘impact reference zone’
and in the ‘preservation reference zone’ makes it possible to assess the impact of activities in the Area.
[...]
145. It should be stressed that the obligation to conduct an environmental impact assessment is a direct
obligation under the Convention and a general obligation under customary international law.
[...]
147. With respect to customary international law, the ICJ, in its Judgment in Pulp Mills on the River
Uruguay, speaks of:
a practice, which in recent years has gained so much acceptance among States that it may now be
considered a requirement under general international law to undertake an environmental impact
assessment where there is a risk that the proposed industrial activity may have a significant adverse
impact in a transboundary context, in particular, on a shared resource. Moreover, due diligence, and the
duty of vigilance and prevention which it implies, would not be considered to have been exercised, if a
party planning works liable to affect the régime of the river or the quality of its waters did not undertake
an environmental impact assessment on the potential effects of such works. (Paragraph 204)
148. Although aimed at the specific situation under discussion by the Court, the language used seems
broad enough to cover activities in the Area even beyond the scope of the Regulations. The Court’s
reasoning in a transboundary context may also apply to activities with an impact on the environment in an
area beyond the limits of national jurisdiction; and the Court’s references to ‘shared resources’ may also
apply to resources that are the common heritage of mankind. Thus, in light of the customary rule
mentioned by the ICJ, it may be considered that environmental impact assessments should be included in
the system of consultations and prior notifications set out in article 142 of the Convention with respect to
‘resource deposits in the Area which lie across limits of national jurisdiction’.
149. It must, however, be observed that, in the view of the ICJ, general international law does not ‘specify
the scope and content of an environmental impact assessment’ (paragraph 205 of the Judgment in Pulp
Mills on the River Uruguay). While article 206 of the Convention gives only few indications of this scope
and content, the indications in the Regulations, and especially in the Recommendations referred to in
paragraph 144, add precision and specificity to the obligation as it applies in the context of activities in
the Area.
150. In light of the above, the Chamber is of the view that the obligations of the contractors and of the
sponsoring States concerning environmental impact assessments extend beyond the scope of application
of specific provisions of the Regulations.”

2. Fisheries Jurisdiction (United Kingdom v. Zeeland), Merits, Judgment, I.C.J. Reports 1974, p. 3
“67. The provisions of the Icelandic Regulations of 14 July 1972 and the manner of their implementation
disregard the fishing rights of the Applicant. Iceland's unilateral action thus constitutes an infringement of
the principle enshrined in Article 2 of the 1958 Geneva Convention on the High Seas which requires that
al1 States, including coastal States, in exercising their freedom of fishing, pay reasonable regard to the
interests
of other States. It also disregards the rights of the Applicant as they result from the Exchange of Notes of
1961. The Applicant is therefore justified in asking the Court to give al1 necessary protection to its own
rights, while at the same time agreeing to recognize Iceland's preferential position. Accordingly, the Court
is bound to conclude that the Icelandic Regulations of 14 July 1972 establishing a zone of exclusive
fisheries
jurisdiction extending to 50 nautical miles from baselines around the Coast of Iceland, are not opposable
to the United Kingdom, and the latter is under no obligation to accept the unilateral termination by
Iceland of
United Kingdom fishery rights in the area.
68. The findings stated by the Court in the preceding paragraphs suffice to provide a basis for the decision
of the present case, namely: that Iceland's extension of its exclusive fishery jurisdiction beyond 12 miles
is not opposable to the United Kingdom; that Iceland may on the other hand claim preferential rights in
the distribution of fishery resources in the adjacent waters; that the United Kingdom also has established
rights with respect to the fishery resources in question; and that the principle of reasonable regard for the
interests of other States enshrined in Article 2 of the Geneva Convention on the High Seas of 1958
requires Iceland and the United Kingdom to have due regard to each other's interests, and to the intercsts
of other States, in those resources.
69. It follows from the reasoning of the Court in this case that in order to reach an equitable solution of
the present dispute it is necessary that the preferential fishing rights of Iceland, as a State specially
dependent
on coastal fisheries, be reconciled with the traditional fishing rights of the Applicant. Such a
reconciliation cannot be based, however, on a phasing-out of the Applicant's fishing, as was the case in
the 1961 Exchange
of Notes in respect of the 12-mile fishery zone. In that zone, Iceland was to exercise exclusive fishery
rights while not objecting to continued fishing by the Applicant's vessels during a phasing-out period. In
adjacent waters outside that zone, however, a similar extinction of rights of other fishing States,
particularly when such rights result from a situation of economic dependence and long-term reliance on
certain fishing grounds, would not be compatible with the notion of preferential rights as it was
recognized at the Geneva Conferences of 1958 and 1960, nor would it be equitable. At the 1960
Conference, the concept of preferential rights of coastal States in a special situation was recognized in the
joint amendment referred to in paragraph 57 above, under such limitations and to such extent as is found
"necessary by reason of the dependence of the coastal State on the stock or stocks of fish, while having
regard to the interests of any other State or States in the exploitation of such stock or stocks of fish". The
reference to the interests of other States in the exploitation of the same stocks clearly indicates that the
preferential rights of the coastal State and the established rights of other States were considered as, in
principle, continuing to co-exist.
70. This is not to Say that the preferential rights of a coastal State in a special situation are a static
concept, in the sense that the degree of the coastal State's preference is to be considered as fixed for ever
at some given moment. On the contrary, the preferential rights are a function of the exceptional
dependence of such a coastal State on the fisheries in adjacent waters and may, therefore, Vary as the
extent of that dependence
changes. Furthermore, as was expressly recognized in the 1961 Exchange of Notes, a coastal State's
exceptional dependence on fisheries may relate .not only to the livelihood of its people but to its
economic development. In each case, it is essentially a matter of appraising the dependence of the coastal
State on the fisheries in question in relation to that of the other State concerned and of reconciling them in
as equitable a manner as is possible.
71. In view of the Court's finding (paragraph 67 above) that the Icelandic Regulations of 14 July 1972 are
not opposable to the United Kingdom for the reasons which have been stated, it follows that the
Government of Iceland is not in law entitled unilaterally to exclude United Kingdom fishing vessels from
sea areas to seaward of the limits agreed to in the 1961 Exchange of Notes or unilaterally to impose
restrictions on their activities in such areas. But the matter does not end there; as the Court has indicated,
Iceland is, in view of its special situation, entitled to preferential rights in respect of the fish stocks of the
waters adjacent to its coasts. Due recognition must be given to the rights of both Parties, namely the rights
of the United Kingdom to fish in the waters in dispute, and the preferential rights of Iceland. Neither right
is an absolute one: the preferential rights of a coastal State are limited according to the extent of its
special dependence on the fisheries and by its obligation to take account of the rights of other States and
the needs of conservation; the established rights of other fishing States are in turn limited by reason of the
coastal State's special dependence on the fisheries and its own obligation to take account of the rights of
other States, including the coastal State, and of the needs of conservation.
72. It follows that even if the Court holds that Iceland's extension of its fishery limits is not opposable to
the Applicant, this does not mean that the Applicant is under no obligation to Iceland with respect to
fishing in the disputed waters in the 12-mile to 50-mile zone. On the contrary, both States have an
obligation to take full account of each others rights and of any fishery conservation measures the
necessity of which is shown
to exist in those waters. It is one of the advances in maritime international law, resulting from the
intensification of fishing, that the former laissez-faire treatment of the living resources of the sea in the
high seas has been replaced by a recognition of a duty to have due regard to the rights of other States and
the needs of conservation for the benefit of all. Consequently, both Parties have the obligation to keep
under review the fishery resources in the disputed waters and to examine together, in the light of scientific
and other available information, the measures required for the conservation and development, and
equitable exploitation, of those resources, taking into account any international agreement in force
between them, such as the North-East Atlantic Fisheries Convention of 24 January 1959, as well as such
other agreements as may be reached in the matter in the course of further negotiation.”
 Session 4: Nationality and protection of the individual

Cases:
1. The Mavrommatis Palestine Concessions, PCIJ (30 August 1924), Series A No.2
2. Nottebohm Case (second phase), Judgment of April 6th, 1955, I.C.J. Reports 1955, p. 4
3. Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 3
4. Interhandel Case, Judgment of March 21st, 1959, I.C.J. Reports I959, p. 6
5. (Republic of Guinea v. Democratic Republic of the Congo), Preliminary Objections, Judgment, I.C.J.
Reports 2007, p. 582

1. The Mavrommatis Palestine Concessions, PCIJ (30 August 1924), Series A No.2

“(12) It is an elementary principle of international law that a State is entitled to protect its subjects, when
injured by acts contrary to international law committed by another State, from whom they have been
unable to obtain satisfaction through the ordinary channels. By taking up the case of one of its subjects
and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in
reality asserting its own rights—its right to ensure, in the person of its subjects, respect for the rules of
international law. The question, therefore, whether the present dispute originates in an injury to a private
interest, which in point of fact is the case in many international disputes, is irrelevant from this
standpoint. Once a State has taken up a case on behalf of one of its subjects before an international
tribunal, in the eyes of the latter the State is sole claimant. The fact that Great Britain and Greece are the
opposing Parties to the dispute arising out of the Mavrommatis concessions is sufficient to make it a
dispute between two States [...]”

2. Nottebohm Case (second phase), Judgment of April 6th, 1955, I.C.J. Reports 1955, p. 4

“ The character thus recognized on the international level as pertaining to nationality is in no way
inconsistent with the fact that international law leaves it to each State to lay down the rules governing the
grant of its own nationality. The reason for this is that the diversity of demographic conditions has thus far
made it impossible for any general agreement to be reached on the rules relating to nationality, although
the latter by its very nature affects international relations. It has been considered that the best way of
making such rules accord with the varying demographic conditions in different countries is to leave the
fixing of such rules to the competence of each State. On the other hand, a State cannot claim that the rules
it has thus laid down are entitled to recognition by another State unless it has acted in conformity with this
general aim of making the legal bond of nationality accord with the individual's genuine connection with
the State which assumes the defence of its citizens by means of protection as against other States.
The requirement that such a concordance must exist is to be found in the studies carried on in the course
of the last thirty years upon the initiative and under the(auspices of the League of Nations and the United
Nations. It explains the provision which the Conference for the Codification of International Law, held at
The Hague in 1930, inserted in Article I of the Convention relating to the Conflict of Nationality Laws,
laying down that the law enacted by a State for the purpose of determining who are its nationals ‘shall be
recognized by other States in so far as it is consistent with .... international custom, and the principles of
law generally recognized with regard to nationality’. In the same spirit, Article 5 of the Convention refers
to criteria of the individual's genuine connections for the purpose of resolving questions of dual
nationality which arise in third States.
According to the practice of States, to arbitral and judicial decisions and to the opinions of writers,
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. It may be
said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either
directly by the law or as the result of an act of the authorities, is in fact more closely connected with the
population of the State conferring nationality than with that of any other State. Conferred by a State, it
only entitles that State to exercise protection vis-à-vis another State, if it constitutes a translation into
juridical terms of the individual's connection with the State which has made him its national.
(24) Diplomatic protection and protection by means of international judicial proceedings constitute
measures for the defence of the rights of the State. As the Permanent Court of International Justice has
said and. has repeated, ‘by taking up the case of one of its subjects and by resorting to diplomatic action
or international judicial proceedings on his behalf, a State is in reality asserting its own rights-its right to
ensure, in the person of its subjects, respect for the rules of international law’ (P.C.I. J., Series A, No. 2, p.
12, and Series A/B, Nos. 20-21, p. 17).
Since this is the character which nationality must present when it is invoked to furnish the State which has
granted it with a title to the exercise of protection and to the institution of international judicial
proceedings, the Court must ascertain whether the nationality granted to Nottebohm by means of
naturalization is of this character or, in other words, whether the factual connection between Nottebohm
and Liechtenstein in the period preceding, contemporaneous with and following his naturalization appears
to be sufficiently close, so preponderant in relation to any connection which may have existed between
him and any other State, that it is possible to regard the nationality conferred upon him as real and
effective, as the exact juridical expression of a social fact of a connection which existed previously or
came into existence thereafter.
Naturalization is not a matter to be taken lightly. To seek and to obtain it is not something that happens
frequently in the life of a human being. It involves his breaking of a bond of allegiance and his
establishment of a new bond of allegiance. It may have far reaching consequences and involve profound
changes in the destiny of the individual who obtains it. It concerns him personally, and to consider it only
from the point of view of its repercussions with regard to his property would be to misunderstand its
profound significance. In order to appraise its international effect, it is impossible to disregard the
circumstances in which it was conferred, the
serious character which attaches to it, the real and effective, and not merely the verbal preference of the
individual seeking it for the country which grants it to him.”

3. Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 3

“ 70. In allocating corporate entities to States for purposes of diplomatic protection, international law is
based, but only to a limited extent, on an analogy with the rules governing the nationality of individuals.
The traditional rule attributes the right of diplomatic protection of a corporate entity to the State under the
laws of which it is incorporated and in whose territory it has its registered office. These two criteria have
been confirmed by long practice and by numerous international instruments. This notwithstanding, further
or different links are at times said to be required in order that a right of diplomatic protection should exist.
Indeed, it has been the practice of some States to give a company incorporated under their law diplomatic
protection solely when it has its seat (siège social) or management or centre of control in their territory, or
when a majority or a substantial proportion of the shares has been owned by nationals of the State
concerned. Only then, it has been held, does there exist between the corporation and the State in question
a genuine connection of the kind familiar from other branches of international law. However, in the
particular field of the diplomatic protection of corporate entities, no absolute test of the ‘genuine
connection’ has found general acceptance. Such tests as have been applied are of a relative nature, and
sometimes links with one State have had to be weighed against those with another. In this connection
reference has been made to the Nottebohm case. In fact the Parties made frequent reference to it in the
course of the proceedings. However, given both the legal and factual aspects of protection in the present
case the Court is of the opinion that there can be no analogy with the issues raised or the decision given in
that case.
[...]
77. It is true that at a certain point the Canadian Government ceased to act on behalf of Barcelona
Traction, for reasons which have not been fully revealed, though a statement made in a letter of 19 July
1955 by the Canadian Secretary of State for External Affairs suggests that it felt the matter should be
settled by means of private negotiations. The Canadian Government has nonetheless retained its capacity
to exercise diplomatic protection; no legal impediment has prevented it from doing so: no fact has arisen
to render this protection impossible. It has discontinued its action of its own free will.
78. The Court would here observe that, within the limits prescribed by international law, a State may
exercise diplomatic protection by whatever means and to whatever extent it thinks fit, for it is its own
right that the State is asserting. Should the natural or legal persons on whose behalf it is acting consider
that their rights are not adequately protected, they have no remedy in international law. Al1 they can do is
to resort to municipal law, if means are available, with a view to furthering their cause or obtaining
redress. The municipal legislator may lay upon the State an obligation to protect its citizens abroad, and
may also confer upon the national a right to demand the performance of that obligation, and clothe the
right with corresponding sanctions. However, all these questions remain within the province of municipal
law and do not affect the position internationally.
79. The State must be viewed as the sole judge to decide whether its protection will be granted, to what
extent it is granted, and when it will cease. It retains in this respect a discretionary power the exercise of
which may be determined by considerations of a political or other nature, unrelated to the particular case.
Since the claim of the State is not identical with that of the individual or corporate person whose cause is
espoused, the State enjoys complete freedom of action. Whatever the reasons for any change of attitude,
the fact cannot in itself constitute a justification for the exercise of diplomatic protection by another
government, unless there is some independent and otherwise valid ground for that”.

4. Interhandel Case, Judgment of March 21st, 1959, I.C.J. Reports I959, p. 6

“ (26) The Court has indicated in what conditions the Swiss Government, basing itself on the idea that
Interhandel's suit had been finally rejected in the United States courts, considered itself entitled to
institute proceedings by its Application of October and, 1957. However, the decision given by the
Supreme Court of the United States on October 14th, 1957, on the application of Interhandel made on
August 6th, 1957, granted a writ of certiorari and readmitted Interhandel into the suit. The judgment of
that Court on June 16th, 1958, reversed the judgment of the Court of Appeals dismissing Interhandel's suit
and remanded the case to the District (27) Court. It was thenceforth open to Interhandel to avail itself
again of the remedies available to it under the Trading with the Enemy Act, and to seek the restitution of
its shares by proceedings in the United States courts. Its suit is still pending in the United States courts.
The Court must have regard to the situation thus created.
The rule that local remedies must be exhausted before international proceedings may be instituted is a
well-established rule of customary international law; the rule has been generally observed in cases in
which a State has adopted the cause of its national whose rights are claimed to have been disregarded in
another State in violation of international law. Before resort may be had to an international court in such a
situation, it has been considered necessary that the State where the violation occurred should have an
opportunity to redress it by its own means, within the framework of its own domestic legal system. A
fortiori the rule must be observed when domestic proceedings are pending, as in the case of Interhandel,
and when the two actions, that of the Swiss Company in the United States courts and that of the Swiss
Government in this Court, in its principal Submission, are designed to obtain the same result: the
restitution of the assets of Interhandel vested in the United States.”

5. (Republic of Guinea v. Democratic Republic of the Congo), Preliminary Objections, Judgment,

I.C.J. Reports 2007, p. 582
“76. The Court will now consider the question of the admissibility of Guinea’s Application as it relates
to the exercise of diplomatic protection with respect to Mr. Diallo ‘by substitution’ for Africom-Zaire and
Africontainers-Zaire and in defence of their rights.
[...]
86. The Court recalls that, as regards diplomatic protection, the principle as emphasized in the Barcelona
Traction case, is that :
‘Not a mere interest affected, but solely a right infringed involves responsibility, so that an act directed
against and infringing only the company’s rights does not involve responsibility towards the shareholders,
even if their interests are affected.’ (I.C.J. Reports 1970, p. 36, para. 46.)
87. Since its dictum in the Barcelona Traction case (ibid., p. 48, para. 93) (see paragraph 82 above), the
Court has not had occasion to rule on whether, in international law, there is indeed an exception to the
general rule ‘that the right of diplomatic protection of a company belongs to its national State’ (ibid., p.
48, para. 93), which allows for protection of the shareholders by their own national State ‘by
substitution’, and on the reach of any such exception. [...]
88. The Court is bound to note that, in contemporary international law, the protection of the rights of
companies and the rights of their shareholders, and the settlement of the associated disputes, are
essentially governed by bilateral or multilateral agreements for the protection of foreign investments, such
as the treaties for the promotion and protection of foreign investments, and the Washington Convention of
18 March 1965 on the Settlement of Investment Disputes between States and Nationals of Other States,
which created an International Centre for Settlement of Investment Disputes (ICSID), and also by
contracts between States and foreign investors. In that context, the role of diplomatic protection
somewhat faded, as in practice recourse is only made to it in rare cases where treaty régimes do not exist
or have proved inoperative. It is in this particular and relatively limited context that the question of
protection by substitution might be raised. The theory of protection by substitution seeks indeed to offer
protection to the foreign shareholders of a company who could not rely on the benefit of an international
treaty and to whom no other remedy is available, the allegedly unlawful acts having been committed
against the company by the State of its nationality. Protection by ‘substitution’ would therefore appear to
constitute the very last resort for the protection of foreign investments.
89. The Court, having carefully examined State practice and decisions of international courts and
tribunals in respect of diplomatic protection of associés and shareholders, is of the opinion that these do
not reveal — at least at the present time — an exception in customary international law allowing for
protection by substitution, such as is relied on by Guinea.
[...]
91. It is a separate question whether customary international law contains a more limited rule of
protection by substitution, such as that set out by the ILC in its draft Articles on Diplomatic Protection,
which would apply only where a company’s incorporation in the State having committed the alleged
violation of international law ‘was required by it as a precondition for doing business there’ (Art. 11, para.
(b)).
92. However, this very special case does not seem to correspond to the one the Court is dealing with here.
It is a fact that Mr. Diallo, a Guinean citizen, settled in Zaire in 1964, when he was 17 years of age, and
that he did not set up his first company, Africom-Zaire, until ten years later, in 1974. In addition, when, in
1979, Mr. Diallo took part in the creation of Africontainers-Zaire, it was in fact only as manager (gérant)
of Africom- Zaire, a company under Congolese law. When Africontainers-Zaire was set up, 70 per cent of
its capital was held by associés of Congolese nationality, and only in 1980, one year later, did Mr. Diallo
become an associé in his own name of that company, holding 40 per cent of the capital, following the
withdrawal of the other two associés, the company Africom-Zaire holding the remaining parts sociales. It
appears natural, against this background, that Africom-Zaire and Africontainers-Zaire were created in
Zaire and entered in the Trade Register of the city of Kinshasa by Mr. Diallo, who was already engaged in
commercial activities. Furthermore, and above all it has not satisfactorily been established before the
Court that their incorporation in that country, as legal entities of Congolese nationality, would have been
required of their founders to enable the founders to operate in the economic sectors concerned.
93. The Court concludes on the facts before it that the companies, Africom-Zaire and Africontainers-
Zaire, were not incorporated in such a way that they would fall within the scope of protection by
substitution in the sense of Article 11, paragraph (b), of the ILC draft Articles on Diplomatic Protection
referred to by Guinea. Therefore, the question of whether or not this paragraph of Article 11 reflects
customary international law does not arise in this case.
94. In view of the foregoing, the Court cannot accept Guinea’s claim to exercise diplomatic protection by
substitution. It is therefore the normal rule of the nationality of the claims which governs the question of
the diplomatic protection of Africom-Zaire and Africontainers-Zaire. The companies in question have
Congolese nationality. The objection as to inadmissibility raised by the DRC owing to Guinea’s lack of
standing to offer Mr. Diallo diplomatic protection as regards the alleged unlawful acts of the DRC against
the rights of the two companies Africom-Zaire and Africontainers-Zaire is consequently well founded and
must be upheld.”
 Session 5: Other subjects of international law

Cases:
1. Reparation for injuries suffered in the service of the United Nations, Advisory Opinion, I.C.J. Reports
1949, p. 174
2. Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J. Reports
1996, p. 66

1. Reparation for injuries suffered in the service of the United Nations, Advisory Opinion, I.C.J.
Reports 1949, p. 174

“ (178) But, in the international sphere, has the Organization such a nature as involves the capacity to
bring an international claim? In order to answer this question, the Court must first enquire whether the
Charter has given the Organization such a position that it possesses, in regard to its Members, rights
which it is entitled to ask them to respect. In other words, does the Organization possess international
personality? This is no doubt a doctrinal expression, which has sometimes given rise to controversy. But it
will be used here to mean that if the Organization is recognized as having that personality, it is an entity
capable of availing itself of obligations incumbent upon its Members.
To answer this question, which is not settled by the actual terms of the Charter, we must consider what
characteristics it was intended thereby to give to the Organization.
The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their
rights, and their nature depends upon the needs of the community. Throughout its history, the
development of international law has been influenced by the requirements of international life, and the
progressive increase in the collective activities of States has already given rise to instances of action upon
the international plane by certain entities which are not States. This development culminated in the
establishment in June 1945 of an international organization whose purposes and principles are specified in
the Charter of the United Nations. But to achieve these ends the attribution of international personality is
indispensable.
The Charter has not been content to make the Organization created by it merely a centre ‘for harmonizing
the actions of nations in the attainment of these common ends’ (Article 1, para. 3). It has equipped that
centre with organs, and has given it special tasks. It has defined the position of the Members in relation to
the Organization by requiring them to give it every assistance in any action undertaken by it (Article 2,
para. 5), and to accept and carry out the decisions of the Security Council; by authorizing the General
Assembly to make recommendations to the Members; (179) by giving the Organization legal capacity and
privileges and immunities in the territory of each of its Members; and by providing for the conclusion of
agreements between the Organization and its Members. Practice—in particular the conclusion of
conventions to which the Organization is a party—has confirmed this character of the Organization,
which occupies a position in certain respects in detachment from its Members, and which is under a duty
to remind them, if need be, of certain obligations. It must be added that the Organization is a political
body, charged with political tasks of an important character, and covering a wide field [...] The
‘Convention on the Privileges and Immunities of the United Nations’ of 1946 creates rights and duties
between each of the signatories and the Organization (see, in particular, Section 35). It is difficult to see
how such a convention could operate except upon the international plane and as between parties
possessing international personality.
In the opinion of the Court, the Organization was intended to exercise and enjoy, and is in fact exercising
and enjoying, functions and rights which can only be explained on the basis of the possession of a large
measure of international personality and the capacity to operate upon an international plane. It is a present
the supreme type of international organization, and it could not carry out the intentions of its founders if it
was devoid of an international personality. It must be acknowledge that its Members, by entrusting certain
functions to it,with the attendant duties and responsibilities, have clothed it with the competence required
to enable those functions to be effectively discharged.
Accordingly, the Court has come to the conclusion that the Organizations is an international person.”

2. Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J.
Reports 1996, p. 66

“ 25. The Court need hardly point out that international organizations are subjects of international law
which do not, unlike States, possess a general competence. International organizations are governed by
the ‘principle of speciality’, that is to say, they are invested by the States which create them with powers,
the limits of which are a function of the common interests whose promotion those States entrust to them.
The Permanent Court of International Justice referred to this basic principle in the following terms:
‘As the European Commission is not a State, but an international institution with a special purpose, it only
has the functions bestowed upon it by the Definitive Statute with a view to the fulfilment of that purpose,
but it has power to exercise these functions to their full extent, in so far as the Statute does not impose
restrictions upon it.’ (Jurisdiction of the European Commission of the Danube, Advisory Opinion, P.
C.I.J., Series B, No. 14, p. 64.)
The powers conferred on international organizations are normally the subject of an express statement in
their constituent instruments. Nevertheless, the necessities of international life may point to the need for
organizations, in order to achieve their objectives, to possess subsidiary powers which are not expressly
provided for in the basic instruments which govern their activities. It is generally accepted that
international organizations can exercise such powers, known as ‘implied’ powers. As far as the United
Nations is concerned, the Court has expressed itself in the following terms in this respect:
‘ Under international law, the Organization must be deemed to have those powers which, though not
expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the
performance of its duties. This principle of law was applied by the Permanent Court of International
Justice to the International Labour Organization in its Advisory Opinion No. 13 of July 23rd, 1926 (Series
B, No. 13, p. 18), and must be applied to the United Nations.’ (Reparation for Injuries Suffered in the
Service of the United Nations, Advisory Opinion, I. C. J. Reports 1949, pp. 182-183; cf. Effect of Awards
of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, I. C. J. Reports
1954, p. 57.)
In the opinion of the Court, to ascribe to the WHO the competence to address the legality of the use of
nuclear weapons—even in view of their health and environmental effects—would be tantamount to
disregarding the principle of speciality; for such competence could not be deemed a necessary implication
of the Constitution of the Organization in the light of the purposes assigned to it by its member States.”
 Session 6: Immunities and jurisdiction

Cases:
1. The Case of the SS Lotus, PCIJ (7 September 1927), Series A, No.10
2. Corfu Channel case, Judgment of April 9th, 1949, I.C.J. Reports 1949, p. 4
3. United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 3
4. Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J. Reports
2012, p. 99

1. The Case of the SS Lotus, PCIJ (7 September 1927), Series A, No.10

“ The Court, having to consider whether there are any rules of international law which may have been
violated by the prosecution in pursuance of Turkish law of Lieutenant Demons, is confronted in the first
place by a question of principle which, in the written and oral arguments of the two Parties, has proved to
be a fundamental one. The French Government contends that the Turkish Courts, in order to have
jurisdiction, should be able to point to some title to jurisdiction recognized by international law in favour
of Turkey. On the other hand, the Turkish Government takes the view that Article 15 allows Turkey
jurisdiction whenever such jurisdiction does not come into conflict with a principle of international law.
The latter view seems to be in conformity with the special agreement itself, No. I of which asks the Court
to say whether Turkey has acted contrary to the principles of international law and, if so, what principles.
According to the special agreement, therefore, it is not a question of stating principles which would
permit Turkey to take criminal proceedings, but of formulating the principles, if any, which might have
been violated by such proceedings.
This way of stating the question is also dictated by the very nature and existing conditions of international
law.
International law governs relations between independent States. The rules of law binding upon States
therefore emanate from their own free will as expressed in conventions or by usages generally accepted as
expressing principles of law and established in order to regulate the relations between these CO-existing
independent communities or with a view to the achievement of common aims. Restrictions upon the
independence of States cannot therefore be presumed. Now the first and foremost restriction imposed by
international law upon a State is that—failing the existence of a permissive rule to the contrary—it may
not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly
territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule
derived from international custom or from a convention.
It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own
territory, in respect of any case which relates to acts which have taken place abroad, and in which it
cannot rely on some permissive rule of international law. Such a view would only be tenable if
international law contained a general prohibition to States to extend the application of their laws and the
jurisdiction of their courts to persons, property and acts 'outside their territory, and if, as an exception to
this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the
case under international law as it stands at present. Far from laying down a general prohibition to the
effect that States may not extend the application of their laws and the jurisdiction of their courts to
persons, property and acts outside their territory, it leaves them in this respect a wide measure of
discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State
remains free to adopt the principles which it regards as best and most suitable.
This discretion left to States by international law explains the great variety of rules which they have been
able to adopt without objections or complaints on the part of other States ; it is in order to remedy the
difficulties resulting from such variety that efforts have been made for many years past, both in Europe
and America, to prepare conventions the effect of which would be precisely to limit the discretion at
present left to States in this respect by international law, thus making good the existing lacunae in respect
of jurisdiction or removing the conflicting jurisdictions arising from the diversity of the principles
adopted by the various States.
In these circumstances, al1 that can be required of a State is that it should not overstep the limits which
international law places upon its jurisdiction ; within these limits, its title to exercise jurisdiction rests in
its sovereignty.
It follows from the foregoing that the contention of the French Government to the effect that Turkey must
in each case be able to cite a rule of international law authorizing her to exercise jurisdiction, is opposed
to the generally accepted international law to which Article 15 of the Convention of Lausanne refers.”

2. Corfu Channel case, Judgment of April 9th, 1949, I.C.J. Reports 1949, p. 4

“(34) But, in fact, the explosions of October 22nd, 1946, in a channel declared safe for navigation, and
one which the United Kingdom Government, more than any other government, had reason to consider
safe, raised quite a different problem from that of a routine sweep carried out under the orders of the
mineclearance organizations. These explosions were suspicious ; they raised a question of responsibility.
Accordingly, this was the ground on which the United Kingdom Government chose to establish its main
line of defence. According to that Government, the corpora delicti must be secured as quickly as possible,
for fear they should be taken away, without leaving traces, by the authors of the minelaying or by the
Albanian authorities. This justification took two distinct forms in the United Kingdom Government's
arguments. It was presented first as a new and special application of the theory of intervention, by means
of which the State intervening would secure possession of evidence in the territory of another State, in
order to submit it to an international tribunal and thus facilitate its task.
(35) The Court cannot accept such a line of defence. The Court can only regard the alleged right of
intervention as the manifestation of a policy of force, such as has, in the past, given rise to most serious
abuses and such as cannot, whatever be the present defects in international organization, find a place in
international law. Intervention is perhaps still less admissible in the particular form it would take here; for,
from the nature of things, it would be reserved for the most powerful States, and might easily lead to
perverting the administration of international justice itself.
The United Kingdom Agent, in his speech in reply, has further classified ‘Operation Retail’ among
methods of self-protection or self-help. The Court cannot accept this defence either. Between independent
States, respect for territorial sovereignty is an essential foundation of international relations. The Court
recognizes that the Albanian Govemment's complete failure to carry out its duties after the explosions,
and the dilatory nature of its diplomatic notes, are extenuating circumstances for the action of the United
Kingdom Government. But to ensure respect for international law, of which it is the organ, the Court must
declare that the action of the British Navy constituted a violation of Albanian sovereignty.”

3. United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 3

“85... Beyond that remedy for dealing with abuses of the diplomatic function by individual members of a
mission, a receiving State has in its hands a more radical remedy if abuses of their functions by members
of a mission reach serious proportions. This is the power which every receiving State has, at its own
discretion, to break off diplomatic relations with a sending State and to cal1 for the immediate closure of
the offending mission.
86. The rules of diplomatic law, in short, constitute a self-contained régime which, on the one hand, lays
down the receiving State's obligations regarding the facilities, privileges and immunities to be accorded to
diplomatic missions and, on the other, foresees their possible abuse by members of the mission and
specifies the means at the disposa1 of the receiving State to counter any such abuse. These means are, by
their nature, entirely efficacious, for unless the sending State recalls the member of the mission objected
to forthwith, the prospect of the almost immediate loss of his privileges and immunities, because of the
withdrawal by the receiving State of his recognition as a member of the mission, will in practice compel
that person, in his own interest, to depart at once. But the principle of the inviolability of the persons of
diplomatic agents and the premises of diplomatic missions is one of the very foundations of this long-
established régime, to the evolution of which the traditions of Islam made a substantial contribution. The
fundamental character of the principle of inviolability is, moreover, strongly underlined by the provisions
of Articles 44 and 45 of the Convention of 1961 (cf. also Articles 26 and 27 of the Convention of 1963).
Even in the case of armed conflict or in the case of a breach in diplomatic relations those provisions
require that both the inviolability of the members of a diplomatic mission and of the premises, property
and archives of the mission must be respected by the receiving State. Naturally, the observance of this
principle does not mean—and this the Applicant Government expressly acknowledges—that a diplomatic
agent caught in the act of committing an assault or other offence may not, on occasion, be briefly arrested
by the police of the receiving State in order to prevent the commission of the particular crime. But such
eventualities bear no relation at all to what occurred in the present case.
87. In the present case, the Iranian Government did not break off diplomatic relations with the United
States; and in response to a question put to him by a Member of the Court, the United States Agent
informed the Court that at no time before the events of 4 November 1979 had the Iranian Government
declared, or indicated any intention to declare, any member of the United States diplomatic or consular
staff in Tehran persona non grata. The Iranian Government did not, therefore, employ the remedies
placed at its disposa1 by diplomatic law specifically for dealing with activities of the kind of which it now
complains. Instead, it allowed a group of militants to attack and occupy the United States Embassy by
force, and to seize the diplomatic and consular staff as hostages; instead, it has endorsed that action of
those militants and has deliberately maintained their occupation of the Embassy and detention of its staff
as a means of coercing the sending State. It has, at the same time, refused altogether to discuss this
situation with representatives of the United States. The Court, therefore, can only conclude that Iran did
not have recourse to the normal and efficacious means at its disposal, but resorted to coercive action
against the United States Embassy and its staff.”

4. Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J.
Reports 2012, p. 99

“ 57. The Court considers that the rule of State immunity occupies an important place in international
law and international relations. It derives from the principle of sovereign equality of States, which, as
Article 2, paragraph 1, of the Charter of the United Nations makes clear, is one of the fundamental
principles of the international legal order. This principle has to be viewed together with the principle that
each State possesses sovereignty over its own territory and that there flows from that sovereignty the
jurisdiction of the State over events and persons within that territory. Exceptions to the immunity of the
State represent a departure from the principle of sovereign equality. Immunity may represent a departure
from the principle of territorial sovereignty and the jurisdiction which flows from it.
58. The Parties are thus in broad agreement regarding the validity and importance of State immunity as a
part of customary international law. They differ, however, as to whether (as Germany contends) the law to
be applied is that which determined the scope and extent of State immunity in 1943-1945, i.e., at the time
that the events giving rise to the proceedings in the Italian courts took place, or (as Italy maintains) that
which applied at the time the proceedings themselves occurred. The Court observes that, in accordance
with the principle stated in Article 13 of the International Law Commission Articles on Responsibility of
States for Internationally Wrongful Acts, the compatibility of an act with international law can be
determined only by reference to the law in force at the time when the act occurred. In that context, it is
important to distinguish between the relevant acts of Germany and those of Italy. The relevant German
acts —which are described in paragraph 52 — occurred in 1943-1945, and it is, therefore, the
international law of that time which is applicable to them. The relevant Italian acts — the denial of
immunity and exercise of jurisdiction by the Italian courts — did not occur until the proceedings in the
Italian courts took place. Since the claim before the Court concerns the actions of the Italian courts, it is
the international law in force at the time of those proceedings which the Court has to apply. Moreover, as
the Court has stated (in the context of the personal immunities accorded by international law to foreign
ministers), the law of immunity is essentially procedural in nature (Arrest Warrant of 1 April 2000
(Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, p. 25, para. 60). It
regulates the exercise of jurisdiction in respect of particular conduct and is thus entirely distinct from the
substantive law which determines whether that conduct is lawful or unlawful. For these reasons, the Court
considers that it must examine and apply the law on State immunity as it existed at the time of the Italian
proceedings, rather than that which existed in 1943-1945.
59. The Parties also differ as to the scope and extent of the rule of State immunity. In that context, the
Court notes that many States (including both Germany and Italy) now distinguish between acta jure
gestionis, in respect of which they have limited the immunity which they claim for themselves and which
they accord to others, and acta jure imperii. That approach has also been followed in the United Nations
Convention and the European Convention (see also the draft Inter-American Convention on Jurisdictional
Immunity of States drawn up by the Inter-American Juridical Committee of the Organization of American
States in 1983 (ILM, Vol. 22, p. 292)).
60. The Court is not called upon to address the question of how international law treats the issue of State
immunity in respect of acta jure gestionis. The acts of the German armed forces and other State organs
which were the subject of the proceedings in the Italian courts clearly constituted acta jure imperii. The
Court notes that Italy, in response to a question posed by a Member of the Court, recognized that those
acts had to be characterized as acta jure imperii, notwithstanding that they were unlawful. The Court
considers that the terms ‘jure imperii’ and ‘jure gestionis’ do not imply that the acts in question are lawful
but refer rather to whether the acts in question fall to be assessed by reference to the law governing the
exercise of sovereign power (jus imperii) or the law concerning non-sovereign activities of a State,
especially private and commercial activities (jus gestionis). To the extent that this distinction is significant
for determining whether or not a State is entitled to immunity from the jurisdiction of another State’s
courts in respect of a particular act, it has to be applied before that jurisdiction can be exercised, whereas
the legality or illegality of the act is something which can be determined only in the exercise of that
jurisdiction. Although the present case is unusual in that the illegality of the acts at issue has been
admitted by Germany at all stages of the proceedings, the Court considers that this fact does not alter the
characterization of those acts as acta jure imperii.”
 Session 7: Custom and treaty

Cases:
1. Colombian-Peruvian asylum case, Judgment of November 20th 1950, I.C.J. Reports 1950, p. 266
2. North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 3
3. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment. I.C.J. Reports 1986, p. 14
4. Case concerning Right of Passage over Indian Territory (Merits), Judgment of 12 April 1960, I.C.J.
Reports 1960, p. 6
5. Fisheries case, Judgment of December 18th, I95I, I.C.J. Reports 1951, p. 116
6. Fisheries Jurisdiction (United Kingdom v. Iceland), Jurisdiction of the Court, Judgment, I.C.J. Reports
1973, p. 3
7. Reservations to the Convention on Genocide, Advisory Opinion, I.C.J. Reports 19-51, p. 15
8. Case of the Free Zones of Upper Savoy and the District of Gex PCIJ (7 June 1932), Series A/B No.
4629
9. Barcelona Traction, Light and Power Company, limited, Judgment, I.C.J. Reports 1970, p. 3
10. Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 253

1. Colombian-Peruvian asylum case, Judgment of November 20th 1950, I.C.J. Reports 1950, p. 266

“(276) The Party which relies on a custom of this kind must prove that this custom is established in such a
rnanner that it has become binding on the other Party. The Colombian Government must prove that the
rule invoked by it is in accordance with a constant and uniform usage practised by the States in question,
and that this usage is the expression of a right appertaining to the State granting asylum and a duty
incumbent on the territorial State. This follows from Article 38 of the Statute of the Court, which refers to
(277) international custom ‘as evidence of a general practice accepted as law’.
In support of its contention concerning the existence of such a custom, the Colombian Government has
referred to a large number of extradition treaties which, as already explained, can have no bearing on the
question now under consideration. It has cited conventions and agreements which do not contain any
provision concerning the alleged rule of unilateral and definitive qualification such as the Montevideo
Convention of 1889 on international penal law, the Bolivarian Agreement of 1911 and the Havana
Convention of 1928. It has invoked conventions which have not been ratified by Peru, such as the
Montevideo Conventions of 1933 and 1939. The Convention of 1933 has, in fact, been ratified by not
more than eleven States and the Convention of 1939 by two States only.
It is particularly the Montevideo Convention of 1933 which Counsel for the Colombian Government has
also relied on in this connexion. It is contended that this Convention has merely codified principles which
were already recognized by Latin-American custom, and that it is valid against Peru as a proof of
customary law. The limited number of States which have ratified this Convention reveals the weakness of
this argument, and furthermore, it is invalidated by the preamble which states that this Convention
modifies the Havana Convention.
Finally, the Colombian Government has referred to a large number of particular cases in which diplomatic
asylum was in fact granted and respected. But it has not shown that the alleged rule of unilateral and
definitive qualification was invoked or-if in some cases it was in fact invoked-that it was, apart from
conventional stipulations, exercised by the States granting asylum as a right appertaining to them and
respected by the territorial States as a duty incumbent on them and not merely for reasons of political
expediency. The facts brought to the knowledge of the Court disclose so much uncertainty and
contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the
officia1 views expressed on various occasions, there has been so much inconsistency in the rapid
succession of conventions on asylum, ratified by some States and rejected by others, and the practice has
been so much influenced by considerations of political expediency in the various cases, that it is not
possible to discern in al1 this any constant and uniform usage, accepted as law, with regard to the alleged
rule of unilateral and definitive qualification of the offence.
The Court cannot therefore find that the Colombian Government has proved the existence of such a
custom.”

2. North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 3

“75. The Court must now consider whether State practice in the matter of continental shelf delimitation
has, subsequent to the Geneva Convention, been of such a kind as to satisfy this requirement. Leaving
aside cases which, for various reasons, the Court does not consider to be reliable guides as precedents,
such as delimitations effected between the present Parties themselves, or not relating to international
boundaries, some fifteen cases have been cited in the course of the present proceedings, occurring mostly
since the signature of the 1958 Geneva Convention, in which continental shelf boundaries have been
delimited according to the equidistance principle—in the majority of the cases by agreement, in a few
others unilaterally—or else the delimitation was foreshadowed but has not yet been carried out. Amongst
these fifteen are the four North Sea delimitations United Kingdom/Norway-Denrnark-Netherlands, and
Norway/Denmark already mentioned in paragraph 4 of this Judgment. But even if these various cases
constituted more than a very small proportion of those potentially calling for delimitation in the world as
a whole, the Court would not think it necessary to enumerate or evaluate them separately, since there are,
a priori, several grounds which deprive them of weight as precedents in the present context.
76. To begin with, over half the States concerned, whether acting unilaterally or conjointly, were or
shortly became parties to the Geneva Convention, and were therefore presumably, so far as they were
concerned, acting actually or potentially in the application of the Convention. From their action no
inference could legitimately be drawn as to the existence of a rule of customary international law in
favour of the equidistance principle. As regards those States, on the other hand, which were not, and have
not become parties to the Convention, the basis of their action can only be problematical and must remain
entirely speculative. Clearly, they were not applying the Convention. But from that no inference could
justifiably be drawn that they believed themselves to be applying a mandatory rule of customary
international law. There is not a shred of evidence that they did and, as has been seen (paragraphs 22 and
23), there is no lack of other reasons for using the equidistance method, so that acting, or agreeing to act
in a certain way, does not of itself demonstrate anything of a juridical nature.
77. The essential point in this connection—and it seems necessary to stress it—is that even if these
instances of action by non-parties to the Convention were much more numerous than they in fact are, they
would not, even in the aggregate, suffice in themselves to constitute the opinio juris;—for, in order to
achieve this result, two conditions must be fulfilled. Not only must the acts concerned amount to a settled
practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this
practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief,
i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive
necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal
obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many
international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but
which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of
legal duty.
78. In this respect the Court follows the view adopted by the Permanent Court of International Justice in
the Lotus case, as stated in the following passage, the principle of which is, by analogy, applicable almost
word for word, mutatis mutandis, to the present case (P.C.I.J., Series A, No. 10, 1927, at p. 28):
‘Even if the rarity of the judicial decisions to be found . . . were sufficient to prove . . . the circumstance
alleged . . ., it would merely show that States had often, in practice, abstained from instituting criminal
proceedings, and not that they recognized themselves as being obliged to do so; for only if such
abstention were based on their being conscious of having a duty to abstain would it be possible to speak
of an international custom. The alleged fact does not allow one to infer that States have been conscious of
having such a duty; on the other hand, . . . there are other circumstances calculated to show that the
contrary is true.’
Applying this dictum to the present case, the position is simply that in certain cases-not a great number-
the States concerned agreed to draw or did draw the boundaries concerned according to the principle of
equidistance. There is no evidence that they so acted because they felt legally compelled to draw them in
this way by reason of a rule of customary law obliging them to do so—especially considering that they
might have been motivated by other obvious factors.
79. Finally, it appears that in almost al1 of the cases cited, the delimitations concerned were median-line
delimitations between opposite States, not lateral delimitations between adjacent States. For reasons
which have already been given (paragraph 57) the Court regards the case of median-line delimitations
between opposite States as different in various respects, and as being sufficiently distinct not to constitute
a precedent for the delimitation of lateral boundaries. In only one situation discussed by the Parties does
there appear to have been a geographical configuration which to some extent resembles the present one,
in the sense that a number of States on the same coastline are grouped around a sharp curve or bend of it.
No complete delimitation in this area has however yet been carried out. But the Court is not concerned to
deny to this case, or any other of those cited, al1 evidential value in favour of the thesis of Denmark and
the Netherlands. It simply considers that they are inconclusive, and insufficient to bear the weight sought
to be put upon them as evidence of such a settled practice, manifested in such circumstances, as would
justify the inference that delimitation according to the principle of equidistance amounts to a mandatory
rule of customary international law,-more particularly where lateral delimitations are concerned.
80. There are of course plenty of cases (and a considerable number were cited) of delimitations of waters,
as opposed to seabed, being carried out on the basis of equidistance-mostly of interna1 waters (lakes,
rivers, etc.), and mostly median-line cases. The nearest analogy is that of adjacent territorial waters, but as
already explained (paragraph 59) the Court does not consider this case to be analogous to that of the
continental shelf.
81. The Court accordingly concludes that if the Geneva Convention was not in its origins or inception
declaratory of a mandatory rule of customary international law enjoining the use of the equidistance
principle for the delimitation of continental shelf areas between adjacent States, neither has its subsequent
effect been constitutive of such a rule; and that State practice up-to-date has equally been insufficient for
the purpose.”

3. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment. I.C.J. Reports 1986, p. 14

“ 183. In view of this conclusion, the Court has next to consider what are he rules of customary
international law applicable to the present dispute. For this purpose, it has to direct its attention to the
practice and opinio juris of States ; as the Court recently observed, ‘It is of course axiomatic that the
material of customary international law is to be looked for primarily in the actual practice and opinio juris
of States, even though multilateral conventions may have an important role to play in recording and
defining rules deriving from custom, or indeed in developing them.’ (Continental Shelf (Libyan Arab
Jarnahiriyu/Malta), I. C.J. Reports 1985, pp. 29-30, para. 27.) In this respect the Court must not lose
sight of the Charter of the United Nations and that of the Organization of American States,
notwithstanding the operation of the multilateral treaty reservation. Although the Court has no jurisdiction
to determine whether the conduct of the United States constitutes a breach of those conventions, it can
and must take them into account in ascertaining the content of the customary international law which the
United States is also alleged to have infringed.
184. The Court notes that there is in fact evidence, to be examined below, of a considerable degree of
agreement between the Parties as to the content of the customary international law relating to the non-use
of force and non-intervention. This concurrence of their views does not however dispense the Court from
having itself to ascertain what rules of customary international law are applicable. The mere fact that
States declare their recognition of certain rules is not sufficient for the Court to consider these as being
part of customary international law, and as applicable as such to those States. Bound as it is by Article 38
of its Statute to apply, inter alia, international custom ‘as evidence of a general practice accepted as law’,
the Court may not disregard the essential role played by general practice. Where two States agree to
incorporate a particular rule in a treaty, their agreement suffices to make that rule a legal one, binding
upon them ; but in the field of customary international law, the shared view of the Parties as to the content
of what they regard as the rule is not enough. The Court must satisfy itself that the existence of the rule in
the opinio juris of States is confirmed by practice.
185. In the present dispute, the Court, while exercising its jurisdiction only in respect of the application of
the customary rules of non-use of force and non-intervention, cannot disregard the fact that the Parties are
bound by these rules as a matter of treaty law and of customary international law. Furthermore, in the
present case, apart from the treaty commitments binding the Parties to the rules in question, there are
various instances of their having expressed recognition of the validity thereof as customary international
law in other ways. It is therefore in the light of this ‘subjective element’—the expression used by the
Court in its 1969 Judgment in the North Sea Continental Shelf cases (I. C.J. Reports 1969, p. 44)—that
the Court has to appraise the relevant practice.
186. It is not to be expected that in the practice of States the application of the rules in question should
have been perfect, in the sense that States should have refrained, with complete consistency, from the use
of force or from intervention in each other's interna1 affairs. The Court does not consider that, for a rule
to be established as customary, the corresponding practice must be in absolutely rigorous conformity with
the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct
of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent
with a given rule should generally have been treated as breaches of that rule, not as indications of the
recognition of a new rule. If a State acts in a way prima facie incompatible with a recognized rule, but
defends its conduct by appealing to exceptions or justifications contained within the rule itself, then
whether or not the State's conduct is in fact justifiable on that basis, the significance of that attitude is to
confirm rather than to weaken the rule.”

4. Case concerning Right of Passage over Indian Territory (Merits), Judgment of 12 April 1960,
I.C.J. Reports 1960, p. 6

“(39) For the purpose of determining whether Portugal has established the right of passage claimed by it,
the Court must have regard to what happened during the British and post-British periods. During these
periods, there had developed between the Portuguese and the territorial sovereign with regard to passage
to the enclaves a practice upon which Portugal relies for the purpose of establishing the right of passage
claimed by it.
With regard to Portugal's claim of a right of passage as formulated by it on the basis of local custom, it is
objected on behalf of India that no local custom could be established between only two States. It is
difficult to see why the number of States between which a local custom may be established on the basis of
long practice must necessarily be larger than two. The Court sees no reason why long continued practice
between two States accepted by them as regulating their relations should not form the basis of mutual
rights and obligations between the two States.
As already stated, Portugal claims a right of passage to the extent necessary for the exercise of its
sovereignty over the enclaves, without any immunity and subject to the regulation and control of India. In
the course of the written and oral proceedings, the existence of the right was discussed with reference to
the different categories making up the right, namely private persons, civil officials, goods in general,
armed forces, armed police, and arms and (40) ammunition. The Court will proceed to examine whether
such a right as is claimed by Portugal is established on the basis of the practice that prevailed between the
Parties during the British and post-British periods in respect of each of these categories.
It is common ground between the Parties that the passage of private persons and civil officials was not
subject to any restrictions, beyond routine control, during these periods. There is nothing on the record to
indicate the contrary.
Goods in general, that is to Say, al1 merchandise other than arms and ammunition, also passed freely
between Daman and the enclaves during the periods in question, subject only, at certain times, to customs
regulations and such regulation and control as were necessitated by considerations of security or revenue.
The general prohibition of the transit of goods during the Second World War and prohibitions imposed
upon the transit of Salt and, on certain occasions, upon that of liquor and materials for the distillation of
liquor, were specific measures necessitated by the considerations just referred to. The scope and purpose
of each prohibition were clearly defined. In al1 other cases the passage of goods was free. No
authorization or licence was required. The Court, therefore, concludes that, with regard to private persons,
civil officials and goods in general there existed during the British and post-British periods a constant and
uniform practice allowing free passage between Daman and the enclaves. This practice having continued
over a period extending beyond a century and a quarter unaffected by the change of regime in respect of
the intervening territory which occurred when India became independent, the Court is, in view of all the
circumstances of the case, satisfied that that practice was accepted as law by the Parties and has given rise
to a right and a correlative obligation.
The Court therefore holds that Portugal had in 1954 a right of passage over intervening Indian territory
between coastal Daman and the enclaves and between the enclaves, in respect of private persons, civil
officials and goods in general, to the extent necessary, as claimed by Portugal, for the exercise of its
sovereignty over the enclaves, and subject to the regulation and control of India.”

5. Fisheries case, Judgment of December 18th, I95I, I.C.J. Reports 1951, p. 116

“ (130) In the opinion of the United Kingdom Government, Norway is entitled, on historic grounds, to
claim as internal waters al1 fjords and sunds which have the character of a bay. She is also entitled on
historic grounds to claim as Norwegian territorial waters all the waters of the fjords and sunds which have
the character of legal straits (Conclusions, point g), and, either as internal or as territorial waters, the areas
of water lying between the island fringe and the mainland (point II and second alternative Conclusion II).
By ‘historic waters’ are usually meant waters which are treated as internal waters but which would not
have that character were it not for the existence of an historic title. The United Kingdom Government
refers to the notion of historic titles both in respect of territorial waters and internal waters, considering
such titles, in both cases, as derogations from general international law. In its opinion Norway can justify
the claim that these waters are territorial or internal on the ground that she has exercised the necessary
jurisdiction over them for a long period without opposition from other States, a kind of possessio longi
temporis, with the result that her jurisdiction over these waters must now be recognized although it
constitutes a derogation from the rules in force. (131) Norwegian sovereignty over these waters would
constitute an exception, historic titles justifying situations which would otherwise be in conflict with
international law.
As has been said, the United Kingdom Government concedes that Norway is entitled to claim as interna1
waters al1 the waters of fjords and sunds which fall within the conception of a bay as defined in
international law whether the closing line of the indentation is more or less than ten sea miles long. But
the United Kingdom Government concedes this only on the basis of historic title; it must therefore be
taken that that Government has not abandoned its contention that the ten-mile rule is to be regarded as a
rule of international law.
In these circumstances the Court deems it necessary to point out that although the ten-mile rule has been
adopted by certain States both in their national law and in their treaties and conventions, and although
certain arbitral decisions have applied it as between these States, other States have adopted a different
limit. Consequently, the ten-mile rule has not acquired the authority of a general rule of international law.
In any event the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has
always opposed any attempt to apply it to the Norwegian coast.”

* *

6. Fisheries Jurisdiction (United Kingdom v. Iceland), Jurisdiction of the Court, Judgment, I.C.J.
Reports 1973, p. 3

“30. In his statement to the Althing on 9 November 1971, the Prime Minister of Iceland alluded not only
to an alleged change of circumstances with respect to fisheries and fishing techniques (which will be
considered later in this Judgment), but also to changes regarding ‘legal opinion on fisheries jurisdiction’.
However, the relevance to the compromissory clause of this allusion is not apparent, since if there is a
dispute as to such changes it would be embraced in the compromissory clause and might be considered as
an issue going to the merits. On the other hand, it could be considered as relevant to the compromissory
clause on an hypothesis familiar in the law of certain States under the guise of ‘failure of consideration’.
As such, it is linked with the assertion that the e object and purpose of the agreement having been
fulfilled, it no longer has a binding effect for Iceland.
[...]
32. While changes in the law may under certain conditions constitute valid grounds for invoking a change
of circumstances affecting the duration of a treaty, the Icelandic contention is not relevant to the present
case. The motive which induced Iceland to enter into the 1961 Exchange of Notes may well have been the
interest of obtaining an immediate recognition of an exclusive fisheries jurisdiction to a distance of 12
miles in the waters around its territory. It may also be that this interest has in the meantime disappeared,
since a 12-mile fishery zone is now asserted by the other contracting party in respect of its own fisheries
jurisdiction. But in the present case, the object and purpose of the 1961 Exchange of Notes, and therefore
the circumstances which constituted an essential basis of the consent of both parties to be bound by the
agreement embodied therein, had a much wider scope. That object and purpose was not merely to decide
upon the Icelandic claim to fisheries jurisdiction up to 12 miles, but also to provide a means whereby the
parties might resolve the question of the validity of any further claims. This follows not only from the text
of the agreement but also from the history of the negotiations, that is to Say, from the whole set of
circumstances which must be taken into account in determining what induced both parties to agree to the
1961 Exchange of Notes.
34. It is possible that today Iceland may find that some of the motives which induced it to enter into the
1961 Exchange of Notes have become less compelling or have disappeared altogether. But this is not a
ground justifying the repudiation of those parts of the agreement the object and purpose of which have
remained unchanged. Iceland has derived benefits from the executed provisions of the agreement, such as
the recognition by the United Kingdom since 1961 of a 12-mile exclusive fisheries jurisdiction, the
acceptance by the United Kingdom of the baselines established by Iceland and the relinquishment in a
period of three years of the pre-existing traditional fishing by vessels registered in the United Kingdom.
Clearly it then becomes incumbent on Iceland to comply with its side of the bargain, which is to accept
the testing before the Court of the validity of its further claims to extended jurisdiction. Moreover, in the
case of a treaty which is in part executed and in part executory, in which one of the parties has already
benefited from the executed provisions of the treaty, it would be particularly inadmissible to allow that
party to put an end to obligations which were accepted under the treaty by way of quid pro quo for the
provisions which the other party has already executed.
35. In his letter of 29 May 1972 to the Registrar, the Minister for Foreign Affairs of Iceland refers to ‘the
changed circumstances resulting from the ever-increasing exploitation of the fishery resources in the seas
surrounding Iceland’. Judicial notice should also be taken of other statements made on the subject in
documents which Iceland has brought to the Court's attention. Thus, the resolution adopted by the Althing
on 15 February 1972 contains the statement that ‘owing to changed circumstances the Notes concerning
fishery limits exchanged in 1961 are no longer applicable’.
36. In these statements the Government of Iceland is basing itself on the principle of termination of a
treaty by reason of change of circumstances. International law admits that a fundamental change in the
circumstances which determined the parties to accept a treaty, if it has resulted in a radical transformation
of the extent of the obligations imposed by it, may, under certain conditions, afford the party affected a
ground for invoking the termination or suspension of the treaty. This principle, and the conditions and
exceptions to which it is subject, have been embodied in Article 62 of the Vienna Convention on the Law
of Treaties, which may in many respects be considered as a codification of existing customary law on the
subject of the termination of a treaty relationship on account of change of circumstances.
37. One of the basic requirements embodied in that Article is that the change of circumstances must have
been a fundamental one. In this respect the Government of Iceland has, with regard to developments in
fishing techniques, referred in an official publication on Fisheries Jurisdiction in Iceland, enclosed with
the Foreign Minister's letter of 29 May 1972 to the Registrar, to the increased exploitation of the fishery
resources in the seas surrounding Iceland and to the danger of still further exploitation because of an
increase in the catching capacity of fishing fleets. The Icelandic statements recall the exceptional
dependence of that country on its fishing for its existence and economic development [...]
40. [...] If, as contended by Iceland, there have been any fundamental changes in fishing techniques in the
waters around Iceland, those changes might be relevant for the decision on the merits of the dispute, and
the Court might need to examine the contention at that stage, together with any other arguments that
Iceland might advance in support of the validity of the extension of its fisheries jurisdiction beyond what
was agreed to in the 1961 Exchange of Notes. But the alleged changes could not affect in the least the
obligation to submit to the Court's jurisdiction, which is the only issue at the present stage of the
proceedings. It follows that the apprehended dangers for the vital interests of Iceland, resulting from
changes in fishing techniques, cannot constitute a fundamental change with respect to the lapse or
subsistence of the compromissory clause establishing the Court's jurisdiction.
[...]
43. Moreover, in order that a change of circumstances may give rise to a ground for invoking the
termination of a treaty it is also necessary that it should have resulted in a radical transformation of the
extent of the obligations still to be performed. The change must have increased the burden of the
obligations to be executed to the extent of rendering the performance something. essentially different
from that originally undertaken. In respect of the obligation with which the Court is here concerned, this
condition is wholly unsatisfied; the change of circumstances alleged by Iceland cannot be said to have
transformed radically the extent of the jurisdictional obligation which is imposed in the 1961 Exchange of
Notes. The compromissory clause enabled either of the parties to submit to the Court any dispute between
them relating to an extension of Icelandic fisheries jurisdiction in the waters above its continental shelf
beyond the 12-mile limit. The present dispute is exactly of the character anticipated in the compromissory
clause of the Exchange of Notes. Not only has the jurisdictional obligation not been radically transformed
in its extent; it has remained precisely what it was in 1961.”

7. Reservations to the Convention on Genocide, Advisory Opinion, I.C.J. Reports 19-51, p. 15

“(26) Having replied to Question 1, the Court will now examine Question II, which is framed as follows :
‘ If the answer to Question 1 is in the affirmative, what is the effect of the reservation as between the
reserving State and :
(a) the parties which object to the reservation ?
(b) those which accept it ?’
The considerations which form the basis of the Court's reply to Question 1 are to a large extent equally
applicable here. As has been pointed out above, each State which is a party to the Convention is entitled
to appraise the validity of the reservation. and it exercises this right individually and from its own
standpoint. As no State can be bound by a reservation to which it has not consented, it necessarily follows
that each State objecting to it will or will not, on the basis of its individual appraisal within the limits of
the criterion of the object and purpose stated above, consider the reserving State to be a party to the
Convention. In the ordinary course of events, such a decision will only affect the relationship between the
State making the reservation and the objecting State; on the other hand, as will be pointed out later, such a
decision might aim at the complete exclusion from the Convention in a case where it was expressed by
the adoption of a position on the jurisdictional plane.
The disadvantages which result from this possible divergence of views-which an article concerning the
making of reservations could have obviated-are real; they are mitigated by the common duty of the
contracting States to be guided in their judgment by the compatibility or incompatibility of the reservation
with the (27) object and purpose of the Convention. It must clearly be assumed that the contracting States
are desirous of preserving intact at least what is essential to the object of the Convention ; should this
desire be absent, it is quite clear that the Convention itself would be impaired both in its principle and in
its application.
It may be that the divergence of views between parties as to the admissibility of a reservation will not in
fact have any consequences. On the other hand, it may be that certain parties who consider that the assent
given by other parties to a reservation is incompatible with the purpose of the Convention, will decide to
adopt a position on the jurisdictional plane in respect of this divergence and to settle the dispute which
thus arises either by special agreement or by the procedure laid down in Article IX of the Convention.
Finally, it may be that a State, whilst not claiming that a reservation is incompatible with the object and
purpose of the Convention, will nevertheless object to it, but that an understanding between that State and
the reserving State will have the effect that the Convention will enter into force between them, except for
the clauses affected by the reservation.
Such being the situation, the task of the Secretary-General would be simplified and would be confined to
receiving reservations and objections and notifying them.”

8. Case of the Free Zones of Upper Savoy and the District of Gex PCIJ (7 June 1932), Series A/B
No. 4629

“(147) The Court, having reached this conclusion simply on the basis of an examination of the situation
of fact in regard to this case, need not consider the legal nature of the Gex zone from the point of view of
whether it constitutes a stipulation in favour oi a third Party.
But were the matter also to be envisaged from this aspect, the following observations should be made :
It cannot be lightly presumed that stipulations favourable to a third State have been adopted with the
object of creating an actual right in its favour. There is however nothing to prevent the will of sovereign
States from having this object and this effect. The question of the existence of a right acquired (148)
under an instrument drawn between other States is therefore one to be decided in each particular case: it
must be ascertained whether the States which have stipulated in favour of a third State meant to create for
that State an actual right which the latter has accepted as such.”

9. Barcelona Traction, Light and Power Company, limited, Judgment, I.C.J. Reports 1970, p. 3

“ 33. When a State admits into its territory foreign investments or foreign nationals, whether natural or
juristic persons, it is bound to extend to them the protection of the law and assumes obligations
concerning the treatment to be afforded them. These obligations, however, are neither absolute nor
unqualified. In particular, an essential distinction should be drawn between the obligations of a State
towards the international community as a whole, and those arising vis-à-vis another State in the field of
diplomatic protection. By their very nature the former are the concern of al1 States. In view of the
importance of the rights involved, all States can be held to have a legal interest in their protection; they
are obligations erga omnes.
34. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of
aggression, and of genocide, as also from the principles and rules concerning the basic rights of the
human person, including protection from slavery and racial discrimination. Some of the corresponding
rights of protection have entered into the body of general international law (Reservations to the
Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J.
Reports 1951, p. 23); others are conferred by international instruments of a universal or quasi-universal
character.
35. Obligations the performance of which is the subject of diplomatic protection are not of the same
category. It cannot be held, when one such obligation in particular is in question, in a specific case, that
all States have a legal interest in its observance.”

11. Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 253

“41. In view of the foregoing, the Court finds that France made public its intention to cease the conduct of
atmospheric nuclear tests following the conclusion of the 1974 series of tests. The Court must in
particular
take into consideration the President's statement of 25 July 1974 (paragraph 37 above) followed by the
Defence Minister's statement on 11 October 1974 (paragraph 40). These reveal that the official statements
made on behalf of France concerning future nuclear testing are not subject to whatever proviso, if any,
was implied by the expression ‘in the normal course of events [normalement]’.
42. Before considering whether the declarations made by the French authorities meet the object of the
claim by the Applicant that no further atmospheric nuclear tests should be carried out in the South Pacific,
it is first necessary to determine the status and scope on the international plane of these declarations.
43. It is well recognized that declarations made by way of unilateral acts, concerning legal or factual
situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often
are, very specific. When it is the intention of the State making the declaration that it should become bound
according to its terms, that intention confers on the declaration the character of a legal undertaking, the
State being thenceforth legally required to follow a course of conduct consistent with the declaration. An
undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within
the context of international negotiations, is binding. In these circumstances, nothing in the nature of a
quidpro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other
States, is required for the declaration to take effect, since such a requirement would be inconsistent with
the strictly unilateral nature of the juridical act by which the pronouncement by the state was made.
44. Of course, not al1 unilateral acts imply obligation; but a State may choose to take up a certain position
in relation to a particular matter with the intention of being bound-the intention is to be ascertained by
interpretation of the act. When States make statements by which their freedom of action is to be limited, a
restrictive interpretation is called for.
45. With regard to the question of form, it should be observed that this is not a domain in which
international law imposes any special or strict requirements. Whether a statement is made orally or in
writing makes no essential difference, for such statements made in particular circumstances may create
commitments in international law, which does not require that they should be couched in written form.
Thus the question of form is not decisive. As the Court said in its Judgment on the preliminary objections
in the case concerning the Temple of Preah Vihear :
‘ Where . . . as is generally the case in international law, which places the principal emphasis on the
intentions of the parties, the law prescribes no particular form, parties are free to choose what form they
please provided their intention clearly results from it.’ (I.C.J. Reports 1961, p. 31 .)
The Court further stated in the same case: ‘. . . the sole relevant question is whether the language
employed in any given declaration does reveal a clear intention . . .’ (ibid., p. 32).
46. One of the basic principles governing the creation and performance of legal obligations, whatever
their source, is the principle of good faith. Trust and confidence are inherent in international co-operation,
in particular in an age when this co-operation in many fields is becoming increasingly essential. Just as
the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding
character of an international obligation assumed by unilateral declaration. Thus interested States may take
cognizance of unilateral declarations and place confidence in them, and are entitled to require that the
obligation thus created be respected.”
 Session 8: Relations between international and municipal laws

Cases:
1. Alabama claims of the United States of America against Great Britain, Arbitral Award (14 September
1972)
2. Elettronica Sicula S.P.A. (ELSI), Judgment, I.C.J. Reports 1989, p. 15
3. Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters
Agreement of 26 June 1947, Advisory Opinion, I.C.J. Reports 1988, p. 12
4. Case Concerning the Factory at Chorzow (Claim for indemnity), Merits, Judgment of 13 September
1928

1. Alabama claims of the United States of America against Great Britain, Arbitral Award (14
September 1972)

“(130) And whereas, in despite of the violations of the neutrality of Great Britain committed by the ‘290’,
this same vessel, later known as the confederate (131) cruiser Alabama, was on several occasions freely
admitted into the ports of colonies of Great Britain, instead of being proceeded against as it ought to have
been in any and every port within British jurisdiction in which it might have been found;
And whereas the government of Her Britannic Majesty cannot justify itself for a failure in due diligence
on the plea of insufficiency of the legal means of action which it possessed:
Four of the arbitrators, for the reasons above assigned, and the fifth for reasons separately assigned by
him,
Are of opinion—
That Great Britain has in this case failed, by omission, to fulfill the duties prescribed in the first and the
third of the rules established by the VIth article of the Treaty of Washington.”

2. Elettronica Sicula S.P.A. (ELSI), Judgment, I.C.J. Reports 1989, p. 15

“122. The allegation of the United States that Raytheon and Machlett were subjected to ‘discriminatory’
measures can be dealt with shortly. It is common ground that the requisition order was not made because
of the nationality of the shareholders; there have been many cases of requisition orders made in similar
circumstances against wholly Italian-owned companies. But the United States claims that there was
‘discrimination’ in favour of IRI, an entity controlled by Italy; and this was, in the view of the United
States, contrary to the FCN Treaty and Supplementary Agreement. It is contended that the interests of IR1
were directly contrary to those of Raytheon and Machlett, and the Italian Government intervened to
advance its own commercial interests at the latter's expense. However, the requisition order in itself did
not serve any interest of IRI; it is only if the requisition is regarded as a step in a process destined to
transfer ELSI's assets to IR1 that the factual situation would afford any basis for the argument now under
examination. As indicated above, the United States stated formally during the oral proceedings that it was
not arguing that the acts and omissions complained of amount to a ‘conspiracy’, and did not speculate as
to why the relevant agents and officials of the Respondent acted as they did (see paragraph 117 above).
There is no sufficient evidence before the Chamber to support the suggestion that there was a plan to
favour IRI at the expense of ELSI, and the claim of ‘discriminatory measures’ in the sense of Article 1 of
the Supplementary Agreement must therefore be rejected.
123. In order to show that the requisition order was an ‘arbitrary’ act in the sense of the Supplementary
Agreement to the FCN Treaty, the Applicant has relied (inter alia) upon the status of that order in Italian
law. It contends that the requisition ‘was precisely the sort of arbitrary action which was prohibited’ by
Article 1 of the Supplementary Agreement, in that ‘under both the Treaty and Italian law, the requisition
was unreasonable and improperly motivated’; it was ‘found to be illegal under Italian domestic law for
precisely this reason’. Relying on its own English translation of the decision of the Prefect of Palermo of
22 August 1969, the Applicant concludes that the Prefect found that the order was ‘destitute of any
juridical cause which may justify it or make it enforceable’. Italy first contended that the word ‘or’ in the
translation of this passage should be replaced by ‘and’, and subsequently put forward the alternative
translation that ‘the order, generically speaking, lacks the proper motivation that could justify it and make
it effective’. It may be noted in passing that when ELSI, immediately after the making of the requisition
order, formally invited the Mayor of Palermo to revoke the order, it referred to it throughout as ‘the said
illegal and arbitrary order’ (‘detto illegale ed arbitrario provvedimento’); but the appeal submitted to the
Prefect, while citing numerous legal grounds for annulment, including ‘eccesso di potere persviamento
del fine’ (‘excess of power by deviation from the purpose’), contained no claim that the order had been
‘arbitrary’. It is therefore appropriate for the Chamber to examine the legal grounds given by the Prefect
of Palermo for his decision, as well as what was said by the Court of Appeal of Palermo on the legal
impact of the Prefect's decision on the requisition order, and consider whether the findings of the Prefect
or of the Court of Appeal are equivalent to, or suggest, a conclusion that the requisition was an ‘arbitrary’
action.
124. Yet it must be borne in mind that the fact that an act of a public authority may have been unlawful in
municipal law does not necessarily mean that that act was unlawful in international law, as a breach of
treaty or otherwise. A finding of the local courts that an act was unlawful may well be relevant to an
argument that it was also arbitrary; but by itself, and without more, unlawfulness cannot be said to
amount to arbitrariness. It would be absurd if measures later quashed by higher authority or a superior
court could, for that reason, be said to have been arbitrary in the sense of international law. To identify
arbitrariness with mere unlawfulness would be to deprive it of any useful meaning in its own right. Nor
does it follow from a finding by a municipal court that an act was unjustified, or unreasonable, or
arbitrary, that that act is necessarily to be classed as arbitrary in international law, though the qualification
given to the impugned act by a municipal authority may be a valuable indication.”

3. Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters
Agreement of 26 June 1947, Advisory Opinion, I.C.J. Reports 1988, p. 12

“7. The question upon which the opinion of the Court has been requested is whether the United States of
America (hereafter referred to as ‘the United States’), as a party to the United Nations Headquarters
Agreement, is under an obligation to enter into arbitration. The Headquarters Agreement of 26 June 1947
came into, force in accordance with its terms on 21 November 1947 by exchange of letters between the
Secretary-General and the United States Permanent Representative. The Agreement was registered the
same day with the United Nations Secretariat, in accordance with Article 102 of the Charter. In section
21, paragraph (a), it provides as follows :
‘ Any dispute between the United Nations and the United States concerning the interpretation or
application of this agreement or of any supplemental agreement, which is not settled by negotiation or
other agreed mode of settlement, shall be referred for final decision to a tribunal of three arbitrators, one
to be named by the Secretary-General, one to be named by the Secretary of State of the United States, and
the third to be chosen by the two, or, if they should fail to agree upon a third, then by the President of the
International Court of Justice.’
There is no question but that the Headquarters Agreement is a treaty in force binding the parties thereto.
What the Court has therefore to determine, in order to answer the question put to it, is whether there exists
a dispute between the United Nations and the United States of the kind contemplated by section 21 of the
Agreement. For this purpose the Court will first set out the sequence of events, preceding the adoption of
resolutions 42/229A and 42/229B, which led first the Secretary-General and subsequently the General
Assembly of the United Nations to conclude that such a dispute existed.
8. The events in question centred round the Permanent Observer mission of the Palestine Liberation
Organization (referred to hereafter as ‘the PLO’) to the United Nations in New York. The PLO has
enjoyed in relation to the United Nations the status of an observer since 1974; by General Assembly
resolution 3237 (XXIX) of 22 November 1974, the Organization was invited to ‘participate in the
sessions and the work of the General Assembly in the capacity of observer’. Following this invitation, the
PLO established an Observer Mission in 1974, and maintains an office, entitled office of the PLO
Observer Mission, at 11 5 East 65 th Street, in New York City, outside the United Nations Headquarters
District. Recognized observers are listed as such in officia1 United Nations publications: the PLO appears
in such publications in a category of ‘organizations which have received a standing invitation from the
General Assembly to participate in the sessions and the work of the General Assembly as observers’.
[...]
49. To conclude, the United States has taken a number of measures against the PLO Observer Mission to
the United Nations in New York. The Secretary-General regarded these as contrary to the Headquarters
Agreement. Without expressly disputing that point, the United States stated that the measures in question
were taken ‘irrespective of any obligations the United States may have under the Agreement’. Such
conduct cannot be reconciled with the position of the Secretary-General. There thus exists a dispute
between the United Nations and the United States concerning the application of the Headquarters
Agreement, falling within the terms of section 21 thereof.
[...]
57. The Court must therefore conclude that the United States is bound to respect the obligation to have
recourse to arbitration under section 21 of the Headquarters Agreement. The fact remains however that, as
the Court has already observed, the United States has declared (letter from the Permanent Representative,
11 March 1988) that its measures against the PLO Observer Mission were taken ‘irrespective of any
obligations the United States may have under the [Headquarters] Agreement’. If it were necessary to
interpret that statement as intended to refer not only to the substantive obligations laid down in, for
example, sections 11,12 and 13, but also to the obligation to arbitrate provided for in section 21, this
conclusion would remain intact. It would be sufficient to recall the fundamental principle of international
law that international law prevails over domestic law. This principle was endorsed by judicial decision as
long ago as the arbitral award of 14 September 1872 in the Alabama case between Great Britain and the
United States, and has frequently been recalled since, for example in the case concerning the Greco-
Bulgarian ‘Communities’ in which the Permanent Court of International Justice laid it down that ‘it is a
generally accepted principle of international law that in the relations between Powers who are contracting
Parties to a treaty, the provisions of municipal law cannot prevail over those of the treaty’ (P.C.I.J., Series
B, No. 17, p. 32).”

4. Case Concerning the Factory at Chorzow (Claim for indemnity), Merits, Judgment of 13
September 1928

“The Polish Government argues in the first place that the Oberschlesische has suffered no loss as a result
of its dispossession, because it was not the lawful owner, its right of ownership having never been valid
and having in any case ceased to be so in virtue of the judgment given on November 12th, 1927, by the
Court of Katowice; so that from that date at all events no damage for which reparation should be made
could ensue as regards that Company.
In regard to this the Court observes as follows: the Court has already, in connection with Judgment No. 7,
had to consider as an incidental and preliminary point, the question of the validity of the transactions in
virtue of which the ownership of the Chorz6w factory passed from the Reich to the Oberschlesische. It
then arrived at the conclusion that the vanous transactions in question were genuine and bona fide; that is
why it was able to regard the Chorz6w factory as belonging to a Company controlled by German
nationals, namely, the Oberschlesische. Whatever the effect of this incidental decision may be as regards
the right of ownership under municipal law, it is evident that the fact that the (32) Chorz6w factory
belonged to the Oberschlesische was the necessary condition precedent to the Court's decision that the
attitude of the Polish Government in respect of the Oberschlesische was not in conformity with Article 6
and the following articles of the Geneva Convention. For if the factory did not belong to the
Oberschlesische Stickstoffwerke, not only would that Company not have suffered damage as a result of
dispossession, but furthermore it could not have been subjected to a dispossession contrary to the Geneva
Convention, but the Court established by Judgment No. 7 that such was the case. It should be noted that
the Court in Judgment No. 7 has not confined itself to recording the incompatibility with the Geneva
Convention of the application of the law of July 14th, 1920, to properties entered in the land register in
the name of companies controlled by German nationals, but has, in replying to the objections put forward
by the Respondent, also had to deal with the question whether such entry was the outcome of fictitious
and fraudulent transactions or of genuine and bonafide transactions. Poland herself objected in connection
with the second submission of the German Application of May 15th, 1925, that the entry of the
Oberschlesische in the land register was in any case not valid as it was based on a fictitious and fraudulent
transaction and thus caused the Court to deal with this point.
[...]
The Polish Government now points out that, after Judgment No. 7 had been rendered, the Civil Court of
Katowice (33) which, under International Law, doubtless has jurisdiction in disputes at civil law
concerning immovable property situated within its district, has declared the entry of the Oberschlesische
in the land register as owner not to be valid under the municipal law applicable to the case, and this apart
from the Polish laws of July 14th, 1920, and June 16th, 1922; it further contends that the Court, in now
giving judgment on the question of damages, should bear in mind this new fact.
There is no need for the Court to consider what would have been the situation at law as regards the
Geneva Convention, if dispossession had been preceded by a judgment given by a competent tribunal. It
will suffice to recall that the Court in Judgment No. 8 has said that the violation of the Geneva
Convention consisting in the dispossession of an owner protected by Article 6 and following of the
Geneva Convention could not be rendered non-existent by the judgment of a municipal court which, after
dispossession had taken place, nullified the grounds rendering the Convention applicable, which grounds
were relied upon by the Court in Judgment No. 7. The judgment of the Tribunal of Katowice given on
November 12th, 1927,—which judgment was given by default as regards the Oberschlesische, the Reich
not being a Party to the proceedings,—does not contain in the text known to the Court the reasons for
which the entry of the property in the name of the Oberschlesische was declared nul1 and void; but it
appears from the application upon which this judgment was given that the reasons advanced by the Polish
Treasury are essentially the same as those already discussed before the Court on the basis of the Polish
Government's submissions in the proceedings leading up to Judgment No. 7, which reasons, in the
opinion of the Court, did not suffice to show that the Oberschlesische did not fall within the scope of
Article 6 and the following articles of the Geneva Convention. If the Court were to deny the existence of
a damage on the ground that the factory did not belong to the Oberschlesische, it would be contradicting
one of the reasons on which it based its Judgment No. 7 and it would be attributing to a judgment of a
municipal court power indirectly to invalidate a judgment of an international court, which is impossible.
Whatever the (34) effect of the judgment of the Tribunal of Katowice of November 12th, 1927, may be at
municipal law, this judgment can neither render inexistent the violation of the Geneva Convention
recognized by the Court in Judgment No. 7 to have taken place, nor destroy one of the grounds on which
that judgment is based.”
 Session 9: Counter-measures, interpretation

Cases:
1. S.S. “I’m Alone” (Canada, United States), Arbitral Award (5 January 1935)
2. The Diversion of Water from the Meuse PCIJ (28 June 1937), Series A/B No. 70
3. Interpretation of Peace Treaties (second phase), Advisory Opinion, I.C.J. Reports 1950, p. 221

1. S.S. “I’m Alone” (Canada, United States), Arbitral Award (5 January 1935)

“(1615) The question numbered three is in the following terms:—

The third question is based upon the assumption that the United States Government had the right of hot
pursuit in the circumstances and was entitled to exercise the rights under Article II of the Convention at
the time when the Dexter joined the Wolcott in the pursuit of the I'm Alone. It is also based upon the
assumption that the averments set forth in paragraph eight of the Answer are true. The question is
whether, in the circumstances, the Government of the United States was legally justified in sinking the I'm
Alone.
The answer given to this question is as follows :—
On the assumptions stated in the question, the United States might, consistently with the Convention, use
necessary and reasonable force for the purpose of effecting the objects of boarding, searching, seizing and
bringing into port the suspected vessel ; and if sinking should occur incidentally, as a result of the exercise
of necessary and reasonable force for such purpose, the pursuing vessel might be entirely blameless. But
the Commissioners think that, in the circumstances stated in paragraph eight of the Answer, the
admittedly intentional sinking of the suspected vessel was not justified by anything in the Convention.
(1618) The act of sinking the ship, however, by officers of the United States Coast Guard, was, as we
have already indicated, an unlawful act; and the Commissioners consider that the United States ought
formally to acknowledge its illegality, and to apologize to His Majesty's Canadian Government therefor;
and, further, that as a material amend in respect of the wrong the United States should pay the sum of
$25,000 to His Majesty's Canadian Government; and they recommend accordingly.”

2. The Diversion of Water from the Meuse PCIJ (28 June 1937), Series A/B No. 70

“(19) The Netherlands contention necessarily implies that the Treaty of 1863 intended to place the Parties
in a situation of legal inequality by conferring on the Netherlands a right of control to which Belgium
could not lay claim. The Netherlands Agent, with regard to the Belgian Government's counter-claim,
stated in his reply that Belgium was not entitled to dispute the lawfulness of the works constructed by the
Netherlands merely on the ground that such works would make it possible to feed a canal situated below
Maestricht with water diverted from the river elsewhere than at the treaty feeder, because Belgium did not
possess any right of control similar to that conferred on the Netherlands by the Treaty.
(20) The Court is unable to accept as well-founded a contention which would alter the character of the
Treaty of 1863 and considerably enlarge the scope of the actual terms used by its authors; for that Treaty
is an agreement freely concluded between two States seeking to reconcile their practical interests with a
view to improving an existing situation rather than to settle a legal dispute concerning mutually contested
rights.
It would only be possible to agree with the contention of the Netherlands Agent that the Treaty had
created a position of inequality between the contracting Parties if that were expressly indicated by the
terms of the Treaty; but the text of Article 1 is not sufficient to justify such an interpretation. The text of
this Article is general; it furnishes no evidence of any differentiation between the two Parties. Article 1 is
a provision equally binding on the Netherlands and on Belgium. If, therefore, it is claimed on behalf of
the Netherlands Government that, over and above the rights which necessarily result from the fact that the
new intake is situated on Netherlands territory, the Netherlands possess certain privileges in the sense that
the Treaty imposes on Belgium, and not on them, an obligation to abstain from certain acts connected
with the supply to canals below Maestricht of water taken from the Meuse elsewhere than at the treaty
feeder, the argument goes beyond what the text of the Treaty will support.
The Court finds that none of the documents produced by the Netherlands Government in support of their
claim of control controverts the conclusion reached by the Court and that, on the contrary, some of these
documents confirm that conclusion. For the above reasons, the submission 1 a of the Netherlands
Memorial must be rejected.”

3. Interpretation of Peace Treaties (second phase), Advisory Opinion, I.C.J. Reports 1950, p. 221

“ (228) In short, the Secretary-General would be authorized to proceed to the appointment of a third
member only if it were possible to constitute a Commission in conformity with the provisions of the
Treaties. In the present case, the refusa1 by the Governments of Bulgaria, Hungary and Romania to
appoint their own Commissioners has made the constitution of such a Commission impossible and has
deprived the appointment of the third member by the Secretary-General of every purpose.
As the Court has declared in its Opinion of March 3oth, 1950, the Governments of Bulgaria, Hungary and
Romania are under an obligation to appoint their representatives to the Treaty Commissions, and it is
clear that refusa1 to fulfill a treaty obligation involves international responsibility. Nevertheless, such a
refusal cannot alter the conditions contemplated in the Treaties for the exercise by the Secretary-General
of his power of appointment. These conditions are not present in this case, and their absence (229) is not
made good by the fact that it is due to the breach of a treaty obligation. The failure of machinery for
settling disputes by reason of the practical impossibility of creating the Commission provided for in the
Treaties is one thing; international responsibility is another. The breach of a treaty obligation cannot be
remedied by creating a Commission which is not the kind of Commission contemplated by the Treaties. It
is the duty of the Court to interpret the Treaties, not to revise them.
The principle of interpretation expressed in the maxim: Ut res magis valeat quam pereat, often referred to
as the rule of effectiveness, cannot justify the Court in attributing to the provisions for the settlement of
disputes in the Peace Treaties a meaning which, as stated above, would be contrary to their letter and
spirit.”
 Session 10: International responsibility of states

Cases:
1. Case Concerning the Factory at Chorzow (jurisdiction), PCIJ (26 July 1927), Series A No. 9
2. Case Concerning the Factory at Chorzow (Claim for indemnity), Merits, Judgment of 13 September
1928
3. Case of the SS Wimbledon (17 August 1953), Series A No.1
4. Opinion in the Lusitania Cases (USA v Germany), Arbitral Award (1 November 1923)
5. Case concerning the difference between New Zealand and France concerning the interpretation or
application of two agreements, concluded on 9 July 1986 between the two States and which related to the
problems arising from the Rainbow Warrior Affair, Arbitral Award (30 April 1990)
6. United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 3

1. Case Concerning the Factory at Chorzow (jurisdiction), PCIJ (26 July 1927), Series A No. 9

“ (21) It is a principle of international law that the breach of an engagement involves an obligation to
make reparation in an adequate form. Reparation, therefore is the indispensable complement of a failure
to apply a convention and there is no necessity for this to be stated in the convention itself. Differences
relating to reparations, which may be due by reason of failure to apply a convention, are consequently
differences relating to its application.”

2. Case Concerning the Factory at Chorzow (Claim for indemnity), Merits, Judgment of 13
September 1928

“(46) The existence of a damage to be made good being recognized by the respondent Party as regards the
Bayerische, and the objections raised by the same Party against the existence of any damage that would
justify compensation to the Oberschlesische being set aside, the Court must now lay down the guiding
principles according to which the amount of compensation due may be determined.
The action of Poland which the Court has judged to be contrary to the Geneva Convention is not an
expropriation to render which lawful only the payment of fair compensation would have been wanting ; it
is a seizure of property, rights and interests which could not be expropriated even against compensation,
Save under the exceptional conditions fixed by Article 7 of the said Convention. As the Court has
expressly declared in Judgment No. 8, reparation is in this case the consequence not of the application of
Articles 6 to 22 of the Geneva Convention, but of acts contrary to those articles.
(47) It follows that the compensation due to the German Government is not necessarily limited to the
value of the undertaking at the moment of dispossession, plus interest to the day of payment. This
limitation would only be admissible if the Polish Government had had the right to expropriate, and if its
wrongful act consisted merely in not having paid to the two Companies the just price of what was
expropriated; in the present case, such a limitation might result in placing Germany and the interests
protected by the Geneva Convention, on behalf of which 'interests the German Government is acting, in a
situation more unfavourable than that in which Germany and these interests would have been if Poland
had respected the said Convention. Such a consequence would not only be unjust, but also and above al1
incompatible with the aim of Article 6 and following articles of the Convention—that is to Say, the
prohibition, in principle, of the liquidation of the property, rights and interests of German nationals and of
companies controlled by German nationals in Upper Silesia—since it would be tantamount to rendering
lawful liquidation and unlawful dispossession indistinguishable in so far as their financial results are
concerned.
The essential principle contained in the actual notion of an illegal act—a principle which seems to be
established by international practice and in particular by the decisions of arbitral tribunal—is that
reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the
situation which would, in all probability, have existed if that act had not been committed. Restitution in
kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind
would bear; the award, if need be, of damages for loss sustained which would not be covered by
restitution in kind or payment in place of it—such are the principles which should serve to determine the
amount of compensation due for an act contrary to international law.
This conclusion particularly applies as regards the Geneva Convention, the object of which is to provide
for the maintenance of economic life in Upper Silesia on the basis of respect for the status quo. The
dispossession of an industrial undertaking—the expropriation of which is prohibited by the (48) Geneva
Convention—then involves the obligation to restore the undertaking and, if this be not possible, to pay its
value at the time of the indemnification, which value is designed to take the place of restitution which has
become impossible. To this obligation, in virtue of the general principles of international law, must be
added that of compensating loss sustained as the result of the seizure. The impossibility, on which the
Parties are agreed, of restoring the Chorzow factory could therefore have no other effect but that of
substituting payment of the value of the undertaking for restitution; it would not be in conformity either
with the principles of law or with the wish of the Parties to infer from that agreement that the question of
compensation must henceforth be dealt with as though an expropriation properly so called was involved.”

3. Case of the SS Wimbledon (17 August 1953), Series A No.1

“ (30) The Court having arrived at the conclusion that the respondent, Germany, wrongfully refused
passage through the Canal to the vessel ‘Wimbledon’, that country is responsible for the loss occasioned
by this refusal, and must compensate the French Government, acting on behalf of the Company known as
‘Les Affréteurs réunis’, which sustained the loss.
[...]
(31) the sums payable for freight during eleven days demurrage and two days deviation and the cost of
fuel, the Court approves the estimates submitted. The respondent has not questioned their correctness;
moreover these estimates are for the most part borne out by the evidence produced during the
proceedings. As regards the number of days it appears to be clear that the vessel, in order to obtain
recognition of its right, was justified in awaiting for a reasonable time the result of the diplomatic
negotiations entered into on the subject, before continuing its voyage.
(32) The fourth item, which relates to the claim for repayment of the share of the vessel in the general
expenses of the Company, has been contested by the respondent; the Court considers that he is justified in
doing so. The expenses in question are not connected with the refusal of passage The Court has arrived at
the same conclusion with regard to the claim for Government stamp duty and other costs of recovery
included under the same heading.”

4. Opinion in the Lusitania Cases (USA v Germany), Arbitral Award (1 November 1923)

“(33) These cases grow out of the sinking of the British ocean liner Lusitania, which was torpedoed by a
German submarine off the coast of Ireland May 7, 1915, during the period of American neutrality. Of the
197 American citizens aboard the Lusitania at that time, 69 were saved and 128 lost. The circumstances
of the sinking are known to all the world, and as liability for losses sustained by American nationals was
assumed by the Government of Germany through its note of February 4, 1916, it would serve no useful
purpose to rehearse them here.
[...]
(34) In this decision rules applicable to the measure of damages in death cases will be considered. In
formulating such rules and determining the weight to be given to the decisions of courts and tribunals
dealing with this subject, it is important to bear in mind the basis of recovery in death cases in the
jurisdictions announcing such decisions.
[...]
(36) Mental suffering. The legal concept of damages is judicially ascertained compensation for wrong.
The compensation must be adequate and balance as near as may be the injury suffered. In many tort cases,
including those for personal injury and for death, it is manifestly impossible to compute mathematically
or with any degree of accuracy or by the use of any precise formula the damages sustained, involving
such inquiries as how long the deceased would probably have lived but for the fatal injury; the amount he
would have earned, and of such earnings the amount he would have contributed to each member of his,
family; the pecuniary value of his supervision over the education and training of his children; the amount
which will reasonably compensate an injured man for suffering excruciating and prolonged physical pain;
and many other inquiries concerning elements universally recognized as constituting recoverable
damages. This, however, furnishes no reason why the wrongdoer should escape repairing his wrong or
why he who has suffered should not receive reparation therefor measured by rules as nearly
approximating accuracy as human ingenuity can devise. To deny such reparation would be to deny the
fundamental principle that there exists a remedy for the direct invasion of every right.
Mental suffering is a fact just as real as physical suffering, and susceptible of measurement by the same
standards. The interdependency of the mind and the body, now universally recognized, may result in a
mental shock producing physical disorders. But quite apart from any such result, there can be no doubt of
the reality of mental suffering, of sickness of mind as well as sickness of body, and of its detrimental and
injurious effect on the individual and on his capacity to produce. Why, then, should he be remediless for
this injury? The courts of France under the provisions of the Code Napoleon have always held that mental
suffering or ‘prejudice morale’ is a proper element to be considered (37) in actions brought for injuries
resulting in death. A like rule obtains in several American States, including Louisiana, South Carolina,
and Florida. The difficulty of measuring mental suffering or loss of mental capacity is conceded, but the
law does not refuse to take notice of such injury on account of the difficulty of ascertaining its degree.
On careful analysis it will be found that decisions announcing a contrary rule by some of the American
courts are measurably influenced by the restrictions imposed by the language of the statutes creating the
right of action for injuries resulting in death. As hereinafter pointed out, these very restrictions have in
some instances driven the courts to permit the juries to award as exemplary damages what were in truth
compensatory damages for mental suffering, rather than leave the plaintiff without a remedy for a real
injury sustained.
Mental suffering to form a basis of recovery must be real and actual, rather than purely sentimental and
vague.”

5. Case concerning the difference between New Zealand and France concerning the interpretation
or application of two agreements, concluded on 9 July 1986 between the two States and which
related to the problems arising from the Rainbow Warrior Affair, Arbitral Award (30 April 1990)

“ 116. The Tribunal has found that France has committed serious breaches of its obligations to New
Zealand. But it has also concluded that no order can be made to give effect to these obligations requiring
the agents to return to the island of Hao, because these obligations have already expired. The Tribunal has
accordingly considered whether it should add to the declarations it will be making an order for the
payment by France of damages.
117. The Tribunal considers that it has power to make an award of monetary compensation for breach of
the 1986 Agreement under its jurisdiction to decide ‘any dispute concerning the interpretation or the
application’ of the provisions of that Agreement (Chorzow Factory Case (Jurisdiction) PCD Pubs. Ser A.
No. 9, p. 21).
118. The Tribunal next considers that an order for the payment of monetary compensation can be made in
respect of the breach of international obligations involving, as here, serious moral and legal damage, even
though there is no material damage. As already indicated, the breaches are serious ones, involving major
departures from solemn treaty obligations entered into in accordance with a binding ruling of the United
Nations Secretary-General. It is true that such orders are unusual but one explanation of that is that these
requests are relatively rare, for instance by France in the Carthage and Manouba cases (1913) (11
UNRIAA 449, 463), and by New Zealand in the 1986 process before the Secretary-General, accepted by
France in the First Agreement. Moreover, such orders have been made, for instance in the last case.”

6. United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 3

“90. On the basis of the foregoing detailed examination of the merits of the case, the Court finds that Iran,
by committing successive and continuing breaches of the obligations laid upon it by the Vienna
Conventions of 1961 and 1963 on Diplomatic and Consular Relations, the Treaty of Amity, Economic
Relations, and Consular Rights of 1955, and the applicable rules of general international law, has incurred
responsibility towards the United States. As to the consequences of this finding, it clearly entails an
obligation on the part of the Iranian State to make reparation for the injury thereby caused to the United
States. Since however Iran's breaches of its obligations are still continuing, the form and amount of such
reparation cannot be determined at the present date.
91. At the same time the Court finds itself obliged to stress the cumulative effect of Iran's breaches of its
obligations when taken together. A marked escalation of these breaches can be seen to have occurred in
the transition from the failure on the part of the Iranian authorities to oppose the armed attack by the
militants on 4 November 1979 and their seizure of the Embassy premises and staff, to the almost
immediate endorsement by those authorities of the situation thus created, and then to their maintaining
deliberately for many months the occupation of the Embassy and detention of its staff by a group of
armed militants acting on behalf of the State for the purpose of forcing the United States to bow to certain
demands. Wrongfully to deprive human beings of their freedom and to subject them to physical constraint
in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the
United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of
Human Rights. But what has above al1 to be emphasized is the extent and seriousness of the conflict
between the conduct of the Iranian State and its obligations under the whole corpus of the international
rules of which diplomatic and consular law is comprised, rules the fundamental character of which the
Court must here again strongly affirm. In its Order of 15 December 1979, the Court made a point of
stressing that the obligations laid on States by the two Vienna Conventions are of cardinal importance for
the maintenance of good relations between States in the interdependent world of today. ‘There is no more
fundamental prerequisite for the conduct of relations between States’, the Court there said, ‘than the
inviolability of diplomatic envoys and embassies, so that throughout history nations of al1 creeds and
cultures have observed reciprocal obligations for that purpose.’ The institution of diplomacy, the Court
continued, has proved to be ‘an instrument essential for effective CO-operation in the international
community, and for enabling States, irrespective of their differing constitutional and social systems, to
achieve mutual understanding and to resolve their differences by peaceful means’ (I.C.J. Reports 1979, p.
19).”
 Session 11: Self-defense

Cases:
1.Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003, p.
161
2. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226

1. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports
2003, p. 161

“51. Despite having thus referred to attacks on vessels and aircraft of other nationalities, the United States
has not claimed to have been exercising collective self-defence on behalf of the neutral States engaged in
shipping in the Persian Gulf; this would have required the existence of a request made to the United
States ‘by the State which regards itself as the victim of an armed attack’ (I. C. J. Reports 1986, p. 105,
para. 199). Therefore, in order to establish that it was legally justified in attacking the Iranian platforms in
exercise of the right of individual self-defence, the United States has to show that attacks had been made
upon it for which Iran was responsible; and that those attacks were of such a nature as to be qualified as
‘armed attacks’ within the meaning of that expression in Article 51 of the United Nations Charter, and as
understood in customary law on the use of force. As the Court observed in the case concerning Military
and Paramilitary Activities in and against Nicaragua, it is necessary to distinguish ‘the most grave forms
of the use of force (those constituting an armed attack) from other less grave forms’ (I. C. J. Reports
1986, p. 101, para. 191), since ‘In the case of individual self-defence, the exercise of this right is subject
to the State concerned having been the victim of an armed attack’ (ibid., p. 103, para. 195). The United
States must also show that its actions were necessary and proportional to the armed attack made on it, and
that the platforms were a legitimate military target open to attack in the exercise of self-defence.
[...]
74. In its decision in the case concerning Military and Paramilitary Activities in and against Nicaragua,
the Court endorsed the shared view of the parties to that case that in customary law ‘whether the response
to the [armed] attack is lawful depends on observance of the criteria of the necessity and the
proportionality of the measures taken in self-defence’ (I.C.J. Reports 1986, p. 103, para. 194). One aspect
of these criteria is the nature of the target of the force used avowedly in self-defence. In its
communications to the Security Council, in particular in that of 19 October 1987 (paragraph 46 above),
the United States indicated the grounds on which it regarded the Iranian platforms as legitimate targets for
an armed action in self-defence. In the present proceedings, the United States has continued to maintain
that they were such, and has presented evidence directed to showing that the platforms collected and
reported intelligence concerning passing vessels, acted as a military communication link coordinating
Iranian naval forces and served as actual staging bases to launch helicopter and small boat attacks on
neutral commercial shipping. The United States has referred to documents and materials found by its
forces aboard the vessel Iran Ajr (see paragraph 63 above), allegedly establishing that the Reshadat
platforms served as military communication facilities. It has also affirmed that the international shipping
community at the time was aware of the military use of the platforms, as confirmed by the costly steps
commercial vessels took to avoid them, and by various witness reports describing Iranian attacks. The
United States has also submitted expert analysis of the conditions and circumstances surrounding these
attacks, examining their pattern and location in the light of the equipment at Iran's disposal. Finally, the
United States has produced a number of documents, found on the Reshadat complex when it was
attacked, allegedly corroborating the platforms' military function. In particular, it contends that these
documents prove that the Reshadat platforms had monitored the movements of the Sea Isle City on 8
August 1987. On the other hand, the forces that attacked the Salman and Nasr complexes were not able to
board the platforms containing the control centres, and did not therefore seize any material (if indeed such
existed) tending to show the use of those complexes for military purposes.”

2. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226

“30. However, the Court is of the view that the issue is not whether the treaties relating to the protection
of the environment are or are not applicable during an armed conflict, but rather whether the obligations
stemming from these treaties were intended to be obligations of total restraint during military conflict.
The Court does not consider that the treaties in question could have intended to deprive a State of the
exercise of its right of self-defence under international law because of its obligations to protect the
environment. Nonetheless, States must take environmental considerations into account when assessing
what is necessary and proportionate in the pursuit of legitimate military objectives. Respect for the
environment is one of the elements that go to assessing whether an action is in conformity with the
principles of necessity and proportionality.
[...]
39. These provisions do not refer to specific weapons. They apply to any use of force, regardless of the
weapons employed. The Charter neither expressly prohibits, nor permits, the use of any specific weapon,
including nuclear weapons. A weapon that is already unlawful per se, whether by treaty or custom, does
not become lawful by reason of its being used for a legitimate purpose under the Charter.
40. The entitlement to resort to self-defence under Article 51 is subject to certain constraints. Some of
these constraints are inherent in the very concept of self-defence. Other requirements are specified in
Article 51. 41. The submission of the exercise of the right of self-defence to the conditions of necessity
and proportionality is a rule of customary international law. As the Court stated in the case concerning
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of Arnerica) :
there is a ‘specific rule whereby self-defence would warrant only measures which are proportional to the
armed attack and necessary to respond to it, a rule well established in customary international law’ (I. C.
J. Reports 1986, p. 94, para. 176). This dual condition applies equally to Article 51 of the Charter,
whatever the means of force employed.
42. The proportionality principle may thus not in itself exclude the use of nuclear weapons in self-defence
in al1 circumstances. But at the same time, a use of force that is proportionate under the law of self-
defence, must, in order to be lawful, also meet the requirements of the law applicable in armed conflict
which comprise in particular the principles and rules of humanitarian law.
[...]
44. Beyond the conditions of necessity and proportionality, Article 51 specifically requires that measures
taken by States in the exercise of the right of self-defence shall be immediately reported to the Security
Council; this article further provides that these measures shall not in any way affect the authority and
responsibility of the Security Council under the Charter to take at any time such action as it deems
necessary in order to maintain or restore international peace and security. These requirements of Article
51 apply whatever the means of force used in self-defence.
[...]
96. Furthermore, the Court cannot lose sight of the fundamental right of every State to survival, and thus
its right to resort to self-defence, in accordance with Article 51 of the Charter when its survival is at stake.
[...]
97. Accordingly, in view of the present state of international law viewed as a whole, as examined above
by the Court, and of the elements of fact at its disposal, the Court is led to observe that it cannot reach a
definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme
circumstance of self-defence, in which its very survival would be at stake.”