Ilaw Final Cases

Front 1

Nicaragua Case

Back 1

- I: Did US action in Nicaragua breach Article 2(4) of the UN charter and customary international law not to use force against another state, not to intervene in the affairs of another state, and not to

-o For one State to use force against another on the ground that that State has committed a wrongful act of force against a third State is regarded as lawful only when the wrongful act provoking the response was an armed attack; absence of a claim by the US that there is an inherent right to self-defense int eh same say that there is one when there is an armed attack (indication of opinio juris)


Also:
I: What is the standard of collective self defense.
R: In order to claim collective self-defense the attacked state must
-declare they have been attacked and
-Make a timely request for assistance
A: US actions do not meet these two criteria. Also the US would fail necessity, proportion, and temporal requirements

Front 2

Naulilaa Incident

Back 2

F: Portugal not yet entered into WWII, 1914 German official and officers from German Southwest Africa were killed at Portuguese post in Angola, because of communication issues both attacked each other, later Germany attacked forts in Angola.
I: Was the Portuguese act of aggression of the Germans contrary to law of nations, and what constitutes a proper response?
R: Reprisals are only permissible when they have been preceded by an unsatisfied demand. Law of nations considers excessive and illegal reprisals out of proportion to act motivating them.
A: Reprisals are an act of self help in part of injured state, but they are limited to rules of good faith applicable in relations between states and experiences of humanity.
C: Arbitrators found obvious disproportion between the incident at Naulialaa and reprisals that followed. Also claimed that death of German official and of two German officers was not consequence of an act contrary to law of nations on the part of Portgueuse authorities. Declared that the sine qua non of the right to exercise reprisals is a motive furnished by a prelim act contrary to law of nations.

Front 3

Caroline Case

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F: Insurrection in Canada 1837, recruits from American side, Caroline was small steamer with American citizens inside of it, and was boarded by men from Canada and sent over Niagara falls to be destroyed. Canada called this an issue of self defense, US Secretary of State Webster said necessity did not exist in this case
I: When can a state act in self defense?
R: Caroline Standard: self defense should only occur when necessity of that self defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.
A: Principle that requirements of self defense might necessitate use of force, but must be used only in certain situations.


-Proportionality: Weber also states that there is a requirement of proportionality, and acts of self defense must be in proportion to the acts of aggression

Front 4

Suriname v Guyana

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• F: Guyana and Suriname had longstanding dispute over their maritime boundary. 1998, Guyana granted a concession to a Canadian company, CGX for oil exploration of the continental shelf in the disputed area; Suriname demanded that Guyana cease oil exploration activities in the disputed area and ordered CGX to cease all activities; later in June 2000, Surinamese patrol boat approached CGX oil rig in the middle of the night and ordered it to depart from the disputed area within 12 hrs or “the consequences will be yours”;

Guyana asked tribunal to find Suriname responsible for violating 2(4) of the Charter, characterizing Suriname’s actions as an unlawful threat or use of force while Suriname argued that it had merely engaged in a law enforcement measure with the area of its territorial claim.
• I: Were Suriname’s ambiguous words “the consequences will be yours” considered a threat against Guyana a threat violating Article 2(4) of the UN Charter?
• R: Suriname’s actions constituted a threat of the use of force in contravention of the Convention, the UN charter and general international law; Suriname’s actions did not constitute an actual use of force,
• A: the order given to the CGX rig, while it did not specify consequences, constituted an explicit threat that force might be used if the order was not complied with and was more a threat of military action than a mere law enforcement activity (even though force may be used in law enforcement activities provided that such force is unavoidable, reasonable and necessary)

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Eritrea v Eithiopia

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• An arbitration commission convened in the aftermath of a border war between Eritrea and Ethiopia addressed Ethiopia’s claim that Eritrea had unlawfully invaded Ethiopian territory in May 1998 and occupied the town of Badme, which Ethiopia was then peacefully administering, as well as other Ethiopian territory.
• Eritrea claimed self-defense, saying that it was merely reoccupying its own territory and defending itself against forcible incursions carried out by Ethiopian armed militia into Eritrea.
• Tribunal rejected Eritrea’s argument that its resort to force could have been lawful self-defense under the circumstances. Acknowledging that the boundary was disputed, the tribunal continued:
o The practice of States and the writings of publicists show that self-defense cannot be invoked to settle territorial disputes.
o Localized border encounters between small infantry units, even those involving the loss of life, do not constitute an armed attack for the purposes of the Charter.

Front 6

Congo v Uganda

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• F: Congo complained Uganda had sent military forces into Congolese territory and engaged in military activities there in violation of the prohibition of use of force; Uganda said forces present with consent of Congolese authorities to prevent crossborder incursions and renewal of consent had been given
• I: were Ugandan forces in the DRC violating the prohibition of the use of force?
• R: The Ugandan forces were in violation of the prohibition of the use of force as the DRC never gave its consent to the foreign forces and merely recognized their (illegal) presence in the modus operandi for military withdrawal for foreign forces
• A: addressed the factual dispute as to whether consent had ever been granted, renewed or withdrawn, esp concerning ceasefire agreements aimed at settling the civil war in Congo and setting a timetable for an orderly withdrawal of all foreign forces; Congo’s acceptance of a modus operandi for orderly withdrawal merely acknowledge realities ont eh ground and did not recognize the situation on the ground as legal
• C: Ugandan plea of consent denied in general except in regards to a specific border region in a given time period

Front 7

Nuclear advisory opinion

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legality of the Threat of Use of Nuclear Weapons, 1996 ICJ 226, the ICJ was asked “Is the threat or use of nuclear weapons in any circumstance permitted under international law?”
• The Court referred to certain constraints applicable to self-defense under Article 51 of the Charter and customary international law, including the requirements of necessary and proportionality (paras 40-42) and observed:
o The Court cannot lose sight of the fundamental right of every state to survival, and therefore its right to resort to self-defense, in accordance with Article 51, when its survival is at stake.
o Nor can it ignore the practice referred to as “policy of deterrence” to which an appreciable section of the international community adhered for many years.
o Cannot conclude whether it would be lawful or unlawful in an extreme circumstance of self-defense to use nuclear weapons.

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Tadic Case

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3. Tadic Case
a. In answering the claim that there was not an armed conflict in the Area of Yugoslavia where Tadic was convicted (and thus Tadic was not subject to the provisions of the Geneva convention), the court established both that an armed conflict exists whenever there is a resort to arms between two states or protracted armed violence btw gov’t authorities and organized armed group. International Humanitarian law apply from the initiation of such conflict beyond cessation of hostilities until a general conclusion of peace is reached. Additionally, it is sufficient that the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties of the conflict.

Front 9

Bashir

Back 9

**

Front 10

Hamdan v Rumsfeld

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Court ruled that applied to all combatants. Look up in notes.

Front 11

Lawless Case

Back 11

:
- Irish Republican Army (IRA) operating out of Republic of Ireland since 1956, attacks targets in Northern Ireland, which is part of the U.K. IRA activist Gerard Lawless is detained in internment camp.
- Lawless files suit against Irish and then ECHR, claiming that his right to a fair trial under Articles 5 and 6 of European Convention for the Protection of Human Rights (1950) had been breached
- Ireland detained Lawless under Article 40 of the Offences against the State (Amendment) Act of 1940. Under Article 15 of the ECPHR, governments may derogate from some obligations during times of war or public emergency

I: Was Ireland justified in detaining Lawless according to the provisions of Article 15?

R: According to Article 15, derogating State must
a) establish that a state of war or public emergency exists
b) derogate from its Convention obligations “to the extent strictly required by the exigencies of the situation” and in no manner violating its other international obligations
c) inform the Secretary-General of the Council of Europe about the situation and when it has ended – State should formally proclaim the existence of a state of emergency

A: The IRA’s activities did constitute a “public emergency threatening the life of the nation” which justified Lawless’s temporary detention without the right to trial, and this was done only to the extent strictly required by the exigencies of the time; no other court, law or method of addressing the IRA problem could have been effective or proportionate

Front 12

Silas v Uruguay

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despite “soverign right of State party to declare state of emergency, a state must justify its derogation by giving a detailed account of the facts.
-Israel Wall Case

Front 13

Israel Wall Case

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• Issue: Is the ICCPR applicable to acts done by a state in the exercise of its jurisdiction outside its own territory?
• Analysis:
o Two interpretations of ICCPR, Article 2(1):
• Article 2(1) covers only individuals that are both in state’s territory and under state’s jurisdiction
• Article 2(1) covers both individuals in state’s territory and individuals under state’s jurisdiction
o Looked at object and purpose of ICCPR
o Looked at practice of UN Human Rights Commission → UNHRC applied ICCPR when states exercised jurisdiction on foreign territory
• Ex. Lopez Burgos v. Uruguay (case involving arrests carried out by Uruguayan agents in Brazil/Argentina) and Montero v. Uruguay (case involving passport confiscation by Uruguayan consulate in Germany)
o Looked at travaux preparatoires → ICCPR drafters did not intend for states to escape their obligations when exercising jurisdiction outside of territory
• Conclusion: Yes, the ICCPR is applicable to acts done by a state in the exercise of its jurisdiction outside its own territory.

Dennis Objects! says this is not state practice

Front 14

Bankovic v Belgium

Back 14

: Victims of bombing of Radio Television Serbia headquarters by NATO forces argued that the bombing violated the ECHR
• Issue: Under the ECHR, did the victims of the bombing by NATO forces, an extra-territorial act, fall under the jurisdiction of those NATO states?
• Analysis: Court argued that ECHR, Article 1 reflected the ordinary and essentially territorial notion of jurisdiction; other bases of jurisdiction were exceptional and required special justification
• Conclusion: Under the ECHR, the victims of the bombing by NATO forces were not within the jurisdiction of those NATO states.

• UN Human Rights Commission (UNHRC) General Comment 31:
o According to General Comment 31, ICCPR rights not limited to citizens of states but must also apply to all individuals who are in the territory OR subject to the jurisdiction of the state

Front 15

Bybee Memo

Back 15

Objective and Issue: The CIA requested legal advice on detainee interrogation via the White House from the Department of Justice’s Office of Legal Counsel (OLC), of which Jay S. Bybee was Assistant Attorney General at the time.
The CIA wanted the OLC’s views concerning the effect of international treaties and federal laws on the treatment of individuals detained by the US Armed Forced during the conflict of Afghanistan, in particular, whether certain treaties forming part of the laws of armed conflict apply to the conditions of detention and the procedures for trial or members of al Qaeda and the Taliban militia
Rule: These treaties do not protect members of the al Qaeda organization, which as a non-State actor cannot be a party to the international agreements governing war.
The President has sufficient grounds to find that these treaties do not protect members of Taliban militia

Front 16

Guerra v Italy

Back 16

2 People claimed that the Italian government failed to notify them of the danger of the factory they lived by, and failed to produce a clean factory
I: Does a state have a duty to its citizens to protect them from serious environmental harm?
R1: Don’t need to tell people about the dangers of the factory.
R2: Yes, they have this obligation under article 8, respect for private and family life

Front 17

Argentina v Uruguay

Back 17

i. May 2006 Argentina files case against Uruguay alleging breach of bilateral agreement dealing with the use of the River Uruguay
ii. Argentina’s claim:
1. Uruguay began operation of two pulp mills on the river without engaging in prior notification and consultation with Argentina
a. Was required by the bilateral agreement
2. Argentina’s application to the Court→ the pulp mills will “damage the environment of the River Uruguay and its area affecting more than 300,000 ppl through significant risks of pollution of the river, deterioration of biodiversity, harmful effects on health and damage to fisheries resources
a. Also claim its serious consequences for tourism and other economic interests
R: They should talk it out

Front 18

Trail Smelter Arbitration (US and Canada)

Back 18

i. Arbitration—air pollution from sulfur dioxide fumes emitted by a smelter plant at Trail, British Columbia, owned by a Canadian Corporation
1. In a previous decision, Special Arbitral Tribunal found that the fumes caused damage in the State of Washington from 1925-1937
ii. No previous case of air pollution dealt with by an international tribunal—“nearest analogy is that of water pollution”
b. Issue: What is the responsibility of a state on to another state with regards to its own pollution and emissions?
c. Rule: (Prof. Eagleton) A state owes at all times a duty to protect other states against injurious acts by individuals from within its jurisdiction.
i. the question is when it comes to determine what is deemed to constitute an injurious act?
d. Conclusion:
i. States have no right to cause serious harm/ pollution to the territory of another state

Front 19

Nagimaros

Back 19

b. Issue: Can astate claim rebus extantibus and unilaterally withdraw from a treaty using as justification environmental changes?
Rule: No—the environment effects everybody. Work it out

Front 20

Air France v. Saks

Back 20

o Nov. 16, 1980
o Respondent Valerie Saks boarded an Air France jetliner in Paris for a flight to Los Angeles (important to note it is an international flight)
o Flight went smoothly but when the plane landed she felt severe pressure & pain in her left ear. The pain continued but she disembarked w/out informing any Air France crew member
o Five days later she goes to Dr. who concluded she had become permanently deaf in the left year
o Saks filed suit against Air France in California State court alleging that her hearing loss was caused by negligent maintenance and operation of the jetliners pressurization system- the case was then removed to the US district court
o Air France said case should be dismissed because the injury was not caused by “accident” w/in the meaning of the Warsaw convention. Claimed the only alleged cause of her injury (normal operation of a pressurization system) could not qualify as an “accident”
• Issue:
o Whether a loss of hearing proximately caused by normal operation of the aircraft’s pressurization system is an “accident” w/in the meaning of article 17 of the Warsaw convention
o Or more generally: what constitutes an “accident” w/in the meaning of article 17 of the Warsaw Convention
• Rule:
o An airline is liable under article 17 only if a passenger injury is caused by an unexpected or unusual event or happening that is external to the passenger (accident).
• Analysis:
o The court recognized that the text of the convention does not define the term “accident” and that the context in which it is used is not illuminating
• Accidents are events or happenings that are unexpected or unusual and external to the plaintiff
o They thus discerned the meaning by looking at the convention’s text, structure, history, travaux preparatoires, as well as subsequent conduct of the parties to the convention
• Conclusion:
o Normal cabin pressure changes are not accidents w/in the meaning of Article 17, and so airlines is not liable for her loss of hearing which was caused by her own internal reaction to normal pressurization of the aircraft’s cabin

Front 21

Olympic Airways v Husain

Back 21

Issue:
Is the “accident” condition precedent to air carrier liability under Article 17 satisfied when the carrier’s unusual or unexpected refusal to assist a passenger is a link in a chain of causation resulting in a passenger’s pre-existing medical condition being aggravated by exposure to a normal condition in the aircraft cabin?

Rule: Yes, the accident condition to air carrier liability under Article 17 is satisfied.
Analysis

- Court begins with the language of Article 17 of Warsaw:
o “Carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking”
- Then sites Air France v. Saks
o In Saks, a passenger lost her hearing because of pressure in the cabin
o The court decided this was an internal reaction to normal conditions and therefore did not constitute an “accident”
o The Court explains that it is the cause of the injury—rather than the occurrence of the injury—that must satisfy the definition of accident
o Thus, an accident is “an unexpected or unusual event or happening that is external to the passenger”
o Court does not state that only one event can be an accident but rather than “an injury is the product of a chain of causes”
→ Despite the airlines arguments, it constitutes an “accident” because:
o Even though the attendants refusal to move the passenger was not the direct cause of death, her negligence was a link in the chain of causal events and can therefore be considered an accident
o The reading of the Convention and Saks does not distinguish between action and inaction
o An Airline’s refusal to grant a reasonable customer accommodation is unusual and unexpected given industry standards

“ The failure to act given a know, serious risk satisfies the meaning of ‘accident’ within Article 17 so long as reasonable alternatives exist that would substantially minimize the risk and implementing these alternatives would not unreasonably interfere with the normal, expected operation of the airplane

Front 22

Deep Vein Thrombosis Litigation

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• Issue:
o Whether the onset of DVT sustained during the course of, or arising out of, international carriage by air, whether as result of an act and/or omission of the carrier or otherwise, is capable, in principle, of being an “accident” causing bodily injury within the meaning of article 17 of the Warsaw Convention
• Analysis:
o Look at Saks, Husain, etc
o Husain established that inaction can also constitute an “accident,” but:
o The event or happening is not external to the passenger, and it is not unusual or unexpected
• DVT is an internal occurrence;
o Failure to warn is not enough to constitute an “accident”

• Conclusion:
o Airlines are not liable for DVT
o Nevertheless, see increasing measures taken by airlines of informing passengers of possible risks, and getting them to move around, stretch etc