END TERM EXAMINATION- PUBLIC INTERNATIONAL LAW

SPRING 2025

Q1.

Legal opinion on Behalf of Norwinia

A. Jurisdiction of the ICJ

Norwinia will assert jurisdiction through Article 36(2) of the ICJ Statute because of Varelia’s 2008 declaration

submitting to the ICJ’s jurisdiction. Further, both the states were a part of a Friendship Treaty and under this

treaty, Article 10 provides for unliterally declaring jurisdiction- which is a commissary clause permitting the

same. While Varelia claims it has terminated the treaty in June 2012, by referring to the case of Gabčíkovo

Nagymaro case and Articles 54, 56 and 65 of the VCLT there is heavy emphasis on following strict procedures

of consent and notice requirement to be fulfilled. These conditions were not met, and additionally, Norwinia had

filed its application before the ICJ in December 2012 ( 12 months period was not over.)

Additionally, in Nicaragua V. Colombia case, the court emphasized on a reasonable connection test wherein the

jurisdiction of the court even upon the commissary clause must depend on the existence of a legal dispute within

the subject matter of such a clause. Here, since the clause is wide and invokes all disputes- thus fulfilling this test.

Subsequently, in Nicaragua V. United States, the court upheld the validity of principal of reciprocity, thus

allowing Norwinia to invoke Varelia’s declaration without filing its own, without any reservations being made by

either parties.

B. Diplomatic Protection

As per Article 1 of the ILC Draft Articles on Diplomatic Protection (2006) and CIL, states can bring claims

against another state on behalf of its national citizens if they are subjected to any wrongful act. This is also

supported by the Passive Personality Principle, although commonly used in criminal cases- which has been

recognized under international law. (also discussed in SS. Lotus case.)

While this is subjected to the test posed in the Nottebohm case on ‘genuine link’ test devised, which includes-

place of work, familial ties, residence, etc. Although Wells was naturalized only few months before, she worked

for over a decade in an Norwinian NGO, spent five years residing in Norwinia and her husband too was
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Norwinian. Additionally, she has linguistic ties to the place as well. Subsequently, her case becomes stronger by

referring to Iran v USA Claims Tribunal case, wherein these factors are supported to form an effective link.

Thus, because of these factors, Norwinia can bring a claim against Varelia on behalf of the injustice subjected on

Wells.

C. State Responsibility

Article 4 and 5 of ARISWA imposes that the conduct of any organ of the state or any entity is attributable to the

state. Here, although Varelia claims that XON or the UN has the responsibility, the claim fails as Varelia has its

own national soldiers deployed in Zantora and additionally the custody of Wells by the soldiers was done in

accordance with Varelian law. Essentially, by following the test laid down in Nicaragua V. US, “effective control”

test was used wherein control being shown by the state on the operations of the soldiers is enough to make the

state responsible for the actions of its organs and entities. Here, Varelia clearly has effective control over its

soldiers.

Additionally, the use of force by the soldiers was unlawful. The use of force is barred by international law unless

the exception of Article 51 UN Charter is justified and additionally violates Article 6 of ICCPR. The use of

force is here neither proportional nor necessary and contravenes CIL as well as IHL. The ICJ affirms that any

threat of the use of force is illegal under Article 2(4) of the UN Charter, unless the requirements under Article

51 are met necessity and proportionality as a response to an armed attack (AO in Nuclear Weapons case). The

same on high threshold being met is reaffirmed in Oil Platforms case.

D. Reparations

Articles 34-36 of ARISWA impose obligations on states to make good the injury caused by them. The state of

Norwinia by denying Wells due medical care and consular access along with the killing of Carter, has breached

international obligations like Article 3 of Geneva Convention as they were subjected to cruelty. By applying the

Rainbow Warriors case wherein unlawful detention manifesting to violation of minimum humanitarian principles

present. Similarly, here too, the continued detention of Wells while depriving her of basic needs is unlawful. Thus,

the state of Varelia owes full reparations or compensating the harm it has caused– including immediate release of

Wells, an apology for the death and mistreatment caused as well as due medical care. Additionally, in Chorzów
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Factory case, the court held that reparations must “wipe out all the consequences” of the wrongful act, which

should be the case here as well. Lastly, Article 94 of the UN Charter binds all parties of ICJ decisions, and if

Varelia does not comply, then Norwinia can request enforcement by the UNSC.

Q2.

C.

a) History of International law

Many famous thinkers like Vitoria, Suarez and Grotius– who are also the foundational fathers of international

law believe in the Christian and Eurocentric views for justifying acts like conquest and disposition under

colonization. Anghie criticizes this encounter was not between sovereign equals but rather showcased the

superiority of European states in colonizing non-European states, as they lacked sovereignty. We can see that

even though the law has evolved, the ideas behind even today’s international principles remain heavily reliant on

Eurocentric ideas. Matua, another scholar critiques this exact point stating that decolonization has still not yet

achieved formulating structural formulations beyond western ideas of what is right.

In the Barcelona Traction Case (1970), wherein the concept of erga omnes obligations emerged which are

obligations owed to all states. The TWAIL scholars argue that often they are invoked against the global south

states as they lack the same power as European states. Additionally, it is argued that the international system is

heavily biased against the third-world countries and structural inequality exists in applying the same obligations

owed by the western state and a third-world state wherein the enforceability is uneven and more on the global

south states. This argument is supported by BS. Chimni as well.

b) Customary International Law

CIL is lauded across the world to be universal which includes state practice and opinion juris as its base. But

TWAIL and feminist critiques exposes the harsh reality. The argument raised by the scholars is that because CIL

was developed at the time of colonialism, there was no sovereignty present in most states, thus CIL was not as

inclusive as it should have been and now are subjected to follow these norms as they are “universally accepted.”

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Now, Anghie– a scholar points out that this CIL developed by the colonizer states was done by showing their

superiority over the “uncivilized” states. I noticed the same conundrum in the Nicaragua V. United States case

wherein prohibition on use of force and non-intervention was accepted as CIL-by relying on the consistent

practice that powerful states use. But at the same time, when the US violated this, there is lack of enforceability

there, but when the Global south states violate the same laws, there is heavy enforcement by these powerful states

such as the US and European countries. Additionally, by referring to the feminist critique, we can see that CIL is

heavily state centered––historically male-dominated in nature.

Q3.

D.

Article 51 of the UN Charter which provides a right for a state to defend itself against any armed attack is an

exception to the general law on prohibition of use of force. Through a series of cases from defining what

constitutes as an armed attack to when can this right to defend one’s state––the ICJ has given judgements.

Firstly, in the Caroline incident, the US Secretary of State Daniel Webster, while corresponding with the British

Government, devised the famous test for lawful self-defence. The factors include- necessity being “instant,

overwhelming, leaving no choice of means, and no moment for deliberation” , and additionally what is required

is that the response must be proportionate and limited to only that necessity. Any force that is not proportional to

the act, would not be considered as self-defence.

The test became a popular principle for evaluating anticipatory self-defence and use of force when there is a

threat of imminent attack. While the international law does not recognise pre-emptive self-defence as reaffirmed

in the case of DRC V. Congo, in rare cases such as the 1976 Entebbe raid, where saving the lives of nationals

was a priority and proportionate measures were taken, at that point, the international community’s responses were

silent, and the security council may avoid condemnation.

Further, in Oil Platforms case, the ICJ emphasized that in order for this condition to be fulfilled, there must be a

“series of armed incidents” that should have occurred, in order to invoke self-defence. In this case, it was not

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present. Additionally, the court opined that in order to meet the threshold to invoke Article 51- there must be both

necessity and proportionality present, which was not present in this case.

Subsequently, in the AO on Nuclear Weapons, the court has reaffirmed the need for necessity and proportionality

being key to use Article 51, but also The ICJ used the reasoning that if the very use of force is illegal, then even

the threat to use force will be illegal under Article 2(4).

Lastly, The ICJ’s restrictive stance is also evident in Chapter VII (Articles 39–46) of the UN Charter, wherein

it is seen that only the UN Security Council can authorise force in non-self-defence scenarios, as in the Korean

War (Resolutions 82 & 83).