Gian Manuel A.

Tan – Chapter 11: State Responsibility

Doctrine of State Responsibility

The law of state responsibility plays a central role in international law, functioning as a general
law of wrongs that governs when an international obligation is breached, the consequences that
flow from a breach, and who is able to invoke those consequences (and how).

When an injury has been inflicted, there is need to determine whether the state can be held
responsible for it. If a state violates a customary rule of international law or a treaty obligation, it
commits what is termed as an “internationally wrongful act”.

Thus, the important considerations when discussing State Responsibility are the following:

1. The elements of an internationally wrongful act;

2. The attributability of the wrongful act to the state; amd
3. The enforcement of the obligation that arises from the wrongful act.

The relevant text to the doctrine of state responsibility is the Articles on Responsibility of States
for Internationally Wrongful Acts (RSIWA) adopted by the UN in 2001.

Internationally Wrongful Act

Article 2 of RSIWA provides for the elements of what can be considered as an internationally
wrongful act, to wit:

There is an internationally wrongful act of a State when conduct consisting of an action

or omission:

(a) Is attributable to the State under international law;

(b) Constitutes a breach of an international obligation of the State.

Article 3 of RSIWA enforces Article 2 by providing that the characterization of an act of a state
as internationally wrongful is governed by international law. Such characterization is not
affected by the characterization of the same act as lawful by internal law.

The foregoing provisions, thus, speak of a subjective and an objective element for an act of state
to be deemed as internationally wrong. The subjective element is that the act must be attributable
not to the persons or agencies who performed it but to the state itself. The objective element is a
violation of an international obligation and may consist of something either active (action) or
passive (an omission).

Attribution to the State

Under the RSIWA, an internationally wrongful act may be committed by state organs, other
persons, or by revolutionaries. However, the RSIWA provides for circumstances when the acts
of these persons can be attributed to a state.
Gian Manuel A. Tan – Chapter 11: State Responsibility

The RSIWA speaks of different categories of State Organs and, accordingly, provides how the
acts of these State Organs can be attributed to the State.

First, are those persons or bodies which have the status as State Organs in accordance with the
internal law of the State; Second, those who are not State Organs according to the internal
law of the State but, nevertheless, is empowered by law of the State to exercise elements of the
government authority, provided they acted within their capacity; Third, persons or groups
acting on the instructions of, or under the direction or control of the State in carrying out the
conduct complained of; Fourth, those persons or groups exercising elements of governmental
authority in the absence or default of the official authorities; Fifth, organs of another State
placed at the disposal of another State, acting in the exercise of elements of governmental
authority of the latter shall be considered acting as organ of the former; and Sixth, those State
Organs recognized by the internal law of the State as such, who acts in excess of its authority
or contravened instructions concerning its exercise.

A good example of attribution to a State of an act of done by a State Organ of the sixth kind, was
demonstrated in the Caire Case of France vs. Mexico (1929).

This case involved Caire, a French national who, while being held in the barracks of the Mexican
military, was killed after refusing to yield to demands of money made by Mexican soldiers.

The International Court of Justice (ICJ) ruled that for the objective responsibility of the State for
acts committed by its officials or organs outside of their competence, they must have acted at
least to all appearances as competent officials or organs, or they must have used powers or
methods appropriate to their official capacity.

The ICJ found that the soldiers in question consistently conducted themselves as Mexico’s
military officers and have used the means placed at their disposition by that capacity to detain,
extort money from, and eventually kill, Caire.

The ICJ used the Doctrine of Objective Responsibility in deciding the Caire Case. This
doctrine states that the responsibility for the acts of the officials or organs of a State, may
devolved upon the latter even in the absence of any fault of its own.

In contrast, attribution of acts of State Organs of the third kind (i.e. persons or groups acting
under the control and instruction of a State) becomes harder to prove owing to the fact that the
internal law of the State does not expressly recognize them as State Organs. This observation
was made apparent in the case of Nicaragua vs. US (1986).

This case involved a mercenary army called the Contra Force. Nicaragua alleged that the Contra
Force was conceived, created and organized by the US. It was also a known fact at that time that
the US provided logistic support, supply of information and location of movements of enemy
troops of the Contra Force.
Gian Manuel A. Tan – Chapter 11: State Responsibility

Notwithstanding the above, the ICJ was not prepared to hold the US responsible for human rights
violations committed by the Contra Force. It decided that the nature of support provided by the
US to the Contra Force cannot be considered as evidence of control of the former over the latter.
Thus, the Contra Force remained responsible for its violations.

In addition to the six categories of State Organs described above, under the RSIWA, acts of
revolutionaries can also be attributed to the State. However, RSIWA limits this kind of
attribution to two kinds of acts: first, those made by insurrectional movements who become the
new government of a State; and second, those acts made by successful insurrectional movements
over a newly established State in a part of the territory of the pre-existing State.

Enforcement

The relevant provisions for the enforcement of the RSIWA are the following:

“Article 31. Reparation

“1. The responsible State is under an obligation to make full reparation for the
injury caused by the internationally wrongful act.

“2. Injury includes any damage, whether material or moral, caused by the
internationally wrongful act of a State.

“Article 32. Irrelevance of internal law

The responsible State may not rely on the provisions of its internal law as
justification for failure to comply with its obligations under this part.”

The application of Articles 31 and 32 was displayed in the Chorzow Factory Case involving
Germany and Poland.

After the First World War, Germany and Poland entered into a bipartite agreement wherein
Germany transferred the control of Upper Silesia area to Poland. Both States agreed that Poland
will not forfeit any German property in the area, but thereafter, Poland forfeited two properties
therein, including the Chorzow Factory, on the pretense that they were expropriating said
properties.

The ICJ ruled that what Poland did was not expropriation, it was in the nature of a seizure, an
illegal one because Poland and Germany had already agreed that German properties in Upper
Silesia will not be forfeited.

In this case, the ICJ declared that reparation must, as fat as possible, wipe out all the
consequences of the illegal act and re-establish the situation which would, in all probability, have
existed if that act had not been committed.
Mark Joseph Lupango – Chapter 12: International Human Rights
Law

Background of Human Rights: From Alien Rights to Human Rights

Early concern about human rights was about specific classes of peoples, e.g., slaves, minorities,
and certain nationalities. It was not until the birth of United Nations that human rights of all
people become the subject of legislation.
Developing Doctrine on the subject:
- Humanitarian intervention
- State responsibility for injury to aliens
- Protection of minorities
- League of Nation’s Mandates and Minorities Systems
- International Humanitarian Law
Human rights in general terms, are those inalienable and fundamental rights, which are essential
for life as human beings.
International Bill of Human Rights
“The way nations treat people under their jurisdiction is no longer just a domestic concern but
also one that calls for the attention of the international community.”
This view represents a chipping away at the old concept of sovereignty. It recognizes that
individuals can be subject of international law and that they can find protection and remedies
within the international community against abuses by their own government.
- U.N Charter (Article 55 and 56)
- Universal Declaration of Human Rights (not seen as law but only as “a common
standard”)
- International Covenant on Civil and Political Rights
- International Covenant on Economic, Social and Cultural Rights
- Optional Protocol to the Covenant on Civil and Political Rights.
Distinction between a mere declaration and a covenant
Covenant Declaration
There is a meeting of minds of the contracting Admits the presumption that something less
parties on the specific duties and obligations than full effectiveness in terms of law is
they intend to assume, and the agreement that intended.
the undertaking must be effectively
performed.
Leaves no doubt about legal nature of the Often deemed to enunciate moral rules only.
provisions it contains.
There is vinculum juris (Legal bound) There is no vinculum juris
Mark Joseph Lupango – Chapter 12: International Human Rights
Law

The Covenant on Civil and Political Rights

The substantive rights that are treated in the Covenant on Civil and Political Rights are found in
Article 1, and 6 to 27.
Life, liberty and property, and equality
- Article 6(1); provision on the right to life
- Article 6(4); provision on genocide
- Article 9(1); general guaranty of liberty
These articles do not go beyond what Article III, Section 1 of the Philippines Bill of Rights
guarantees. The Covenant, moreover, does not say when the protected life begins, whereas the
Philippines protects “the life if the unborn from conception.”
o On the right to life, the Covenant’s Article 6(2) states the abolition of the death
penalty and allows its imposition, in countries, which still have a death penalty,
only after conviction for the most serious crimes. In Article 6(6): “Nothing in this
article shall be invoked to delay or to prevent the abolition of capital punishment
by any State Party to the present Covenant.” In Second Optional Protocol to the
Covenant, Article 1 says: “(1) No one within the jurisdiction of a State Party to
the present Protocol shall be executed. (2) Each State Party shall take necessary
measures to abolish the death penalty within its jurisdiction.”
The Philippines is not yet party to the Second Protocol although it signed on
September 20, 2006. The 1987 Constitution prohibited the imposition of the death
penalty unless a new law is passed imposing death for heinous crimes.” Congress
first restored the death penalty for heinous crimes but Republic Act No. 9346 has
since disallowed it.
o On the right of the accused, there are two provisions on compensation in the
Covenant which should be looked into. Article 9(5) says: “Anyone who has been
victim of unlawful arrest or detention shall have an enforceable right to
compensation,” and Article 14(6) says that a person who has been a victim of
miscarriage of justice “shall be compensated according to law, unless it is
provided that non-disclosure of the unknown fact in time is wholly or partly
attributable to him.” The only place where the Philippine Constitution asks for
compensation is in Section 12(4) of the Bill of Rights where the legislature is
asked to compensate violations of rights of a person under investigation.
Torture, ill-treatment and prison conditions
o While adequate prison conditions are guaranteed by Section 19(2) of the Bill of
Rights, the fact, however, is that prison conditions in the Philippines today are far
from adequate.
Mark Joseph Lupango – Chapter 12: International Human Rights
Law

It should be noted that the UN Human Rights Commission has expressed the view
that imprisonment “in conditions seriously detrimental to a prisoner’s health”
constitutes violation of Articles 7 and 10(1) of the Covenant.
Freedom of Movement
o The Covenant in its Article 12(1) and (2) group together the rights to travel within
the country, the right to leave the country and the right to change one’s residence.
The limitations on these rights are enumerated in Article 12(3): “those which are
provided by law, are necessary to protect national security, public order, public
health or morals and rights and freedoms of others, and are consistent with the
other rights in the present Covenant.”
Legal personality, privacy and the family
o The right to be recognized as a person before the law is guaranteed in Article 16
of the Covenant. One must distinguish, however, between “having a legal
personality” and “ having a capacity to act.” The first belong to all, whether
citizen or aliens; the second mat not be available to some by reason, for instance
of infancy, minority, or insanity. The guarantee in its fullness means that state
parties must “treat every human being everywhere, male or female, young or old,
alien or citizen, as a person before the law, enjoying the protection of the law and
of the forces of the law, with power to have right and assume obligation; to own,
acquire, and dispose of property; to make contracts; to sue and be sued; and to
invoke other legal remedies.”
o Article 17 of the Covenant protects “privacy, family, home or correspondence” as
well as honor and reputation.
o Articles 23 and 24 of the Covenant contain detailed provisions on the rights of the
family and of children. These either are covered by Article XV on the Family in
the Constitution or are so fundamental that Philippine law takes them for granted.
Thought, conscience, religion, expression and political freedoms
o Article 18 of the Covenant guarantees “freedom of thought, conscience, and
religion.” The limits on external exercise found in the Covenant – “to protect
public safety, order, health, or morals or the fundamental rights of others”
o The Covenant contains explicit protection of the right of parents in the matter of
religion for their children.
o Article 19 of the Covenant guarantees freedom of expression and Article 21
protects the right of assembly and petition. They do not go beyond our
Constitution’s own guarantees on the same subject. However, the Covenant’s
Article 20 which prohibits “propaganda for war” can come into conflict with our
Constitution’s freedom of expression.
Mark Joseph Lupango – Chapter 12: International Human Rights
Law

Associations and unions

o Article 22 of the Covenant has a detailed set of provision protecting the right to
form unions. The Covenant is silent about the right of government employees to
form unions; the Constitution is explicit in the assertion of the right.
Minorities
o Article 27 guarantees “ethnic, religious or linguistic minorities” the right “to
enjoy their own culture, to profess and practice their own religion, or to use their
own language.”
Self-determination of peoples
o Self-determination has an internal and an external aspect. The internal right of
self-determination consists of the elements enumerated in the first two paragraphs
of Article 1: the right “freely to determine their political status and freely pursue
their economic, social and cultural development” and the right, “for their own
ends, to freely dispose of the natural wealth and resources without prejudice to
any obligation arising out of international cooperation, based upon the principle of
mutual benefit, and international law.” These also necessarily include the other
related political rights.
The external right of self-determination belongs to colonies and to those
enumerated in the third paragraph: “non-self-governing and Trust Territories.”
Optional Protocol on the Covenant on Civil and Political Rights
o This separate treaty is designed to enable private parties who are victims of
human rights violations. However, complaints may be filed only against states
that have ratified the Protocol. An eighteen-member Human Rights Committee
created by the Covenant receives and handles the complaints.
The Covenant on Economic, Social and Cultural Rights
o The rights specific to the Covenant on Economic, Social and Cultural Rights are
social welfare rights stated in detail. They include: the right to work (Article 6), to
favorable conditions of work (Article 7), to form free trade unions (Article 8), to
social security and insurance (Article 9), to special assistance for families (Article
10), to adequate standard of living (Article 11), to the highest standard of physical
and mental health (Article 12), to education including compulsory primary
education (Article 13 and 14), and to the enjoyment of cultural and scientific
benefits and international contracts (Article 15)
These corresponds to the economic, social and cultural rights that are also found
in the Constitution, principally Article XIII (Social Justice), Article XIV
(Education, Science and Technology, Arts, Culture, and Sports), and Article XV
(The Family).
Mark Joseph Lupango – Chapter 12: International Human Rights
Law

The Duty to Implement

o The Philippines is a party not only to the United Nations Charter and the
Universal Declaration of Human Rights but also to the two Covenants as well as
to the Optional Protocol to the Covenant on Civil and Political Rights. The nation
is therefore bound, both internally and in its foreign relations, “to bring its laws
and practices into accord with the accepted international obligations and not to
introduce new laws or practice which would be at variance with such obligations
as stated in Article 2 of the Covenant on Civil and Political Rights.
Other Convention on Human Rights
- 1948 Genocide Convention
- 1966 Convention on the Elimination of All Forms of Racial Discrimination
- 1979 Convention in the Elimination of All Forms of Discrimination Against Women
- 1984 Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment
- 1989 Convention on the Rights of the Child
- 1990 Convention on Migrants Workers
Customary human rights law
o It can be said that some human rights principle have become customary law in the
light of state practice. This would include the prohibition of torture, genocide,
slavery and the prohibition of discrimination.
International Implementation of Human Rights Law
o An important UN body is the Human Rights Commission, a subsidiary organ of
ECOSOC. There are two different procedure used by the Commission for
responding to violations of human rights. These are (1) confidential consideration
under ECOSOC Resolution 1503 and (2) public debate procedure under ECOSOC
Resolution 1235. Both of these may be supplemented by the designation of a
“thematic rapporteur” or Working Group to study violations of a specific
character, e.g., torture, disappearance or arbitrary detention. There is overlapping
between the two procedures.
The International Criminal Court
o What is International Criminal Court?
- The International Criminal Court (“the ICC” or “the Court”) is a permanent international
court established to investigate, prosecute and try individuals accused of committing the
most serious crimes of concern to the international community as a whole, namely the
crime of genocide, crimes against humanity, war crimes and the crime of aggression.
Mark Joseph Lupango – Chapter 12: International Human Rights
Law

o Rome Statute
- On 17 July 1998, a conference of 160 States established the first treaty-based permanent
international criminal court. The treaty adopted during that conference is known as
the Rome Statute of the International Criminal Court.

o Principle of Complementarity
- This is known as the principle of complementarity, under which priority is given to
national systems. States retain primary responsibility for trying the perpetrators of the
most serious of crimes.

o Coverage of the ICC

- The mandate of the Court is to try individuals rather than States, and to hold such
persons accountable for the most serious crimes of concern to the international
community as a whole, namely the crime of genocide, war crimes, crimes against
humanity, and the crime of aggression, when the conditions for the exercise of the
Court’s jurisdiction over the latter are fulfilled.
Mark Joseph Lupango – Chapter 12: International Human Rights
Law

Facts:
The applicant, who was born at Laksevag near Bergen, left home when she was 16. In 1977,
when she was 17 years old, she gave birth to her son C and they became dependent on assistance
form social welfare authorities. From 1980 onwards, the applicant cohabited with a man, who
mistreated her and C, he was convicted of drug offences in 1983 and spent two years in prison.
On many occasions, the social welfare authorities assisted the applicant in the upbringing of C,
but considerable problems as well as friction arose between those authorities and the applicant.
In August 1988, C began to receive treatment at the Child Psychiatric Department of Haukeland
Hospital in Bergen. In January 1989, he was admitted to a special school adapted to his needs.
On 14 November 1989 C who was then 12 years old, was provisionally taken into care under
section 11 of the Child Welfare Act no. 14 of 17 July 1953, as the circumstances of the case
disclosed a danger to his health and development. The police assisted the child welfare
authorities in enforcing the decision. After spending the period from November 1989 to early
January 1990 at the Child Psychiatric Department of Haukeland Hospital, C was placed in a
children’s home.
According to a statement of 10 January 1990 by the Chief Physician, Ms Guri Rogge, and the
Deputy Chief Physician, Mr. Arne Haggernes, the applicant’s and C’s situation had been “rather
chaotic” throughout the period during which they had been in contact with the hospital. When
faced with difficulties, the applicant had broken off her contact with the system, which had been
set up to assist her. Her way of life had a detrimental effect on C and that fact that he had
changed schools had created much insecurity.
In mid-November 1989 the applicant, who was pregnant, left Bergen for Oslo. On 23 November,
she was given accommodation at the Oslo Crisis Centre, an institution for women who had been
victims of domestic ill-treatment
On the following day, she went for an antenatal check-up at Markveien medical Centre in Oslo.
She stated to the doctor concerned that she had been taking valium, vival and paralgin during her
pregnancy and that she had hardly eaten during the last fortnight. Because of her pregnancy and
her state health she was subsequently referred to Ulleval Hospital in Oslo. The doctors there
considered her physical and mental state of health to be very poor, but refrained from contacting
the child welfare authorities, fearing that she might injure herself if they did so.
On 7 December 1989 the applicant gave birth to her daughter S. In view of the applicant’s
difficult situation and the problems with regard to the upbringing of C, the child welfare
authorities at Roa in Oslo were contacted.
Issues:
Whether or not Article 8 of the Convention was violated.
Whether or not Article 6 paragraph 1 of the Convention was violated.
Mark Joseph Lupango – Chapter 12: International Human Rights
Law

Whether or not Article 13 of the Convention was violated.

Whether or not Article 50 of the Convention should be applied.
In summary, the Court: Convention for the Protection of Human Rights and Fundamental
Freedoms
1. Holds unanimously that the taking into care of the applicant’s daughter and the
maintenance in force of the relevant care decision did not give rise to a breach of Article
8 of the Convention.
2. Holds by eight votes to one that the decision of 3 May 1990, in so far as it deprived the
applicant of her access and parental rights in respect of her daughter, constituted a
violation of Article 8.
3. Holds unanimously that there has been no violation of Article 6 paragraph1 of the
Convention
4. Holds unanimously that it is not necessary to examine whether there was a breach of
Article 13 of the Convention
5. Holds unanimously that it is not necessary to make an award for cost and expenses.
Christopher Javier Antona – U.S.A vs. Iran

Facts:
In November 4, 1979, student militants of the group Muslim Student Followers of the Imam's
Line barged into the US Embassy in Tehran and held US diplomats and consulars hostage for
444 days. The cause of the Iranian students’ action against the US was believed to be the latter’s
grant of medical asylum to Shah Mohammad Reza Pahlavi and its refusal to turn the Shah over
for trial.

The US sought recourse before the international court, asking that the hostages be freed and that
reparations be given to the US by the Iranian government for the latter’s failure to carry its
international legal obligations. US averred that Iran was responsible due to its initial inaction to
the crisis and its subsequent statement of support to the seizure.

Issue:
Whether or not Iran was liable to the United States for the seizure of the US embassy and the
hostage-taking of the US nationals by the Iranian militants.

Ruling:
Iran was under obligation to make reparations for the injury caused to the United States.

Iran’s failure to take appropriate steps to protect the US embassy and Consulates was a violation
of its obligations under the 1961 Vienna Convention on Diplomatic Relations, the 1963 Vienna
Convention on Consular Relations, and 1955 Treaty of Amity, Economic Relations and Consular
Rights between Iran and the United States. Iran had the international legal responsibility to keep
the embassy inviolable. Iran was fully aware of its obligations but it did nothing to prevent the
take over and the captivity of the US nationals.

Although the take-over of the embassy was not held to have been an act of the state, the
consequent detention of the US nationals was attributed to Iran because of its approval and
support to said detention, such act was a violation of the provisions in the aforenamed
conventions and treaty. “Once organs of the Iranian State had thus given approval to the acts
complained of and decided to perpetuate them as a means of pressure on the United States, those
acts were transformed into acts of the Iranian State: the militants became agents of that State,
which itself became internationally responsible for their acts.”

For its breaches, the Islamic Republic of Iran had incurred responsibility towards the United
States of America. Iran is obliged to make reparations and to endeavor for the release of the
hostages.
Christopher Javier Antona – Iran vs. U.S.A

Facts:
On 2 November 1992, the Islamic Republic of Iran (hereinafter called “Iran”) instituted
proceedings against the United States of America (hereinafter called “the United States”) in
respect of a dispute “aris[ing] out of the attack [on] and destruction of three offshore oil
production complexes, owned and operated for commercial purposes by the National Iranian Oil
Company, by several warships of the United States Navy on 19 October 1987 and 18 April 1988,
respectively”.

In its Application, Iran contended that these acts constituted a “fundamental breach” of various
provisions of the Treaty of Amity, Economic Relations and Consular Rights between the United
States and Iran, which was signed in Tehran on 15 August 1955 and entered into force on 16
June 1957 (hereinafter called “the 1955 Treaty”), as well as of international law. The Application
invoked, as a basis for the Court’s jurisdiction, Article XXI, paragraph 2, of the 1955 Treaty.
Within the time-limit fixed for the filing of the Counter-Memorial, the United States raised a
preliminary objection to the jurisdiction of the Court pursuant to Article 79, paragraph 1, of the
Rules of Court of 14 April 1978.

By a Judgment dated 12 December 1996 the Court rejected the preliminary objection of the
United States according to which the 1955 Treaty did not provide any basis for the jurisdiction of
the Court and found that it had jurisdiction, on the basis of Article XXI, paragraph 2, of the 1955
Treaty, to entertain the claims made by Iran under Article X, paragraph 1, of that Treaty. The
United States Counter-Memorial included a counter-claim concerning “Iran’s actions in the Gulf
during 1987-88 which, among other things, involved mining and other attacks on U.S.-flag or
U.S.-owned vessels”. By an Order of 10 March 1998 the Court held that this counter-claim was
admissible as such and formed part of the proceedings. Public sittings were held between 17
February and 7 March 2003, at which the Court heard the oral arguments and replies on the
claim of Iran and on the counter-claim of the United States. At those oral proceedings, the
following final submissions were presented by the Parties:

On behalf of the Government of Iran, at the hearing of 3 March 2003, on the claim of Iran: “The
Islamic Republic of Iran respectfully requests the Court, rejecting all contrary claims and
submissions, to adjudge and declare:

1. That in attacking and destroying on 19 October 1987 and 18 April 1988 the oil platforms
referred to in Iran’s Application, the United States breached its obligations to Iran under Article
X, paragraph 1, of the Treaty of Amity, and that the United States bears responsibility for the
attacks; and

2. That the United States is accordingly under an obligation to make full reparation to Iran for the
violation of its international legal obligations and the injury thus caused in a form and amount to
be determined by the Court at a subsequent stage of the proceedings, the right being reserved to
Iran to introduce and present to the Court in due course a precise evaluation of the reparation
owed by the United States; and

3. Any other remedy the Court may deem appropriate”; at the hearing of 7 March 2003, on the
counter-claim of the United States: “The Islamic Republic of Iran respectfully requests the Court,
Christopher Javier Antona – Iran vs. U.S.A

rejecting all contrary claims and submissions, to adjudge and declare: That the United States
counter-claim be dismissed.”

On behalf of the Government of the United States, at the hearing of 5 March 2003, on the claim
of Iran and the counter-claim of the United States: “The United States respectfully requests that
the Court adjudge and declare:

(1) that the United States did not breach its obligations to the Islamic Republic of Iran under
Article X, paragraph 1, of the 1955 Treaty between the United States and Iran; and

(2) that the claims of the Islamic Republic of Iran are accordingly dismissed. With respect to its
counter-claim, the United States requests that the Court adjudge and declare:

(1) Rejecting all submissions to the contrary, that, in attacking vessels in the Gulf with mines and
missiles and otherwise engaging in military actions that were dangerous and detrimental to
commerce and navigation between the territories of the United States and the Islamic Republic of
Iran, the Islamic Republic of Iran breached its obligations to the United States under Article X,
paragraph 1, of the 1955 Treaty; and

(2) That the Islamic Republic of Iran is accordingly under an obligation to make full reparation
to the United States for its breach of the 1955 Treaty in a form and amount to be determined by
the Court at a subsequent stage of the proceedings.”

Issue:
Whether the USA violates the Treaty of Amity.

Ruling:
The Court finds that the actions of the United States of America against Iranian oil platforms on
19 October 1987 and 18 April 1988 cannot be justified as measures necessary to protect the
essential security interests of the United States of America under Article XX, paragraph 1 (d), of
the 1955 Treaty of Amity, Economic Relations and Consular Rights between the United States of
America and Iran, as interpreted in the light of international law on the use of force; finds further
that the Court cannot however uphold the submission of the Islamic Republic of Iran that those
actions constitute a breach of the obligations of the United States of America under Article X,
paragraph 1, of that Treaty, regarding freedom of commerce between the territories of the
parties, and that, accordingly, the claim of the Islamic Republic of Iran for reparation also cannot
be upheld.
Subscribing to the conclusions set out in the Judgment, the distinction arising in respect of the
same set of facts between the violation of freedom of commerce between the two Parties and the
non-violation of freedom of commerce between those Parties’ territories. In his declaration Judge
Ranjeva draws attention to the fact that the Judgment pierces the veil of the dispute: the Court
sought to give priority to thorough consideration of the point of law to which the Parties ascribed
the greatest importance: whether the use of force was justified under Article XX, paragraph 1, of
the 1955 Treaty or the principle of self-defence under international law. The negative response
given in the operative part itself reflects the Court’s decision to adopt an approach grounded on
an analysis of the elements of the claim: its cause (cur) and its subject (quid). It would have been
Christopher Javier Antona – Iran vs. U.S.A

appropriate under these circumstances to look to Article 38, paragraph 2, of the Rules of Court
and to refer directly to the concept of the cause of the claim. Another approach, masking the
cause of the claim, would have affected the subject of the litigants’ true intent and favoured
wholly artificial considerations or purely logical ones, given the strategy employed in presenting
the claims and arguments. In the present proceedings the Respondent’s attitude helped to
forestall the theoretical debate concerning the tension between the consensual basis of the
Court’s jurisdiction and the principle jura novit curia.
Christopher Javier Antona – La Grande Case : Germany vs. U.S.A

Facts:
The Vienna Convention on Consular Relations, Article 36(1)(b), provides that a state trying an
alien in a death sentence case must inform the alien of his rights to have his consular authorities
informed of the arrest. A suit which claimed the United States law enforcement personnel f ailed
to advice aliens upon their arrest of their rights was filed by Paraguay (P), Germany (P) and
Mexico (P) at the international Court of Justice. The plaintiffs also claimed that as a remedy for
violation of the Vienna Convention, state courts should review and reconsider the death
sentences to determine if the lack of consular access prejudiced the aliens. The German’s (P)
case involved LaGrand and his brother who were executed before the matter came to the I.C.J.
the Court found that the U.S. (D) had breached its obligations to Germany (P) under the Vienna
Convention by not giving notice about LaGrand and his brother of right to consular notification,
and by failing to provide judicial review of the conviction and sentence.

Issue:
Does a state which breaches its obligations to another under the Vienna Convention on Consular
Relations by failing to inform an arrested alien of the right to consular notification and to provide
judicial review of the alien’s conviction and sentence also violate individual rights held by the
alien under international law?

Ruling:
Yes. A state that breaches its obligations to another under the Vienna Convention on Consular
Relations by failing to inform an arrested alien of the right to consular notification and to provide
judicial review of the alien’s conviction and sentence also violate individual rights held by the
alien under international law. The meaning adduced to the phrase “authorities shall inform the
person concerned without delay of his rights under this subparagraph” of Article 36 suggests that
the rights to be informed of their rights under the Convention is an individual right of every
national of a state that is party to the Convention.
Juna Luz B. Latigay – Abu Ghraid Prison Case

Facts
• Abu Ghraib
 a US Army detention center for captured Iraqis from 2003 to 2006
 located 20 miles west of Baghdad on 280 acres
 held as many as 3,800 detainees
• The Report: Maj. Gen. Antonio Taguba
 Punching, slapping, and kicking detainees; jumping on their naked feet.
 Videotaping and photographing naked male and female detainees.
 Forcibly arranging detainees in various sexually explicit positions for
photographing.
 Forcing detainees to remove their clothing and keeping them naked for several
days at a time.
 Forcing naked male detainees to wear women's underwear.
 Forcing groups of male detainees to masturbate themselves while being
photographed and videotaped.
 Arranging naked male detainees in a pile and then jumping on them.
 Positioning a naked detainee on a box, with a sandbag on his head, and attaching
wires to his fingers, toes, and penis to simulate electric torture.
 Writing "I am a Rapest (sic)" on the leg of a detainee accused of rape, and then
photographing him naked.
 Placing a dog chain or strap around a naked detainee's neck and having a female
soldier pose for a picture.
 A male MP guard having sex with a female detainee.
 Using military working dogs (without muzzles) to intimidate and frighten
detainees, and in at least one case biting and severely injuring a detainee.
 Taking photographs of dead Iraqi detainees.
• Related Case: Al Shimari vs CACI Inc
Suhail Najim Abdullah Al Shimari
Taha Yaseen Arraq Rashid
Salah Hasan Nusaif Al-Ejaili
Juna Luz B. Latigay – Abu Ghraid Prison Case

Asa'ad Hamza Hanfoosh Zuba'e -as represented by Center for Constitutional

Rights
About: Al Shimari vs CACI Inc
Al Shimari v. CACI is a federal lawsuit brought by the Center for Constitutional Rights
on behalf of four Iraqi torture victims against U.S.-based government contractor CACI
International Inc. and CACI Premier Technology, Inc. The lawsuit asserts that CACI directed
and participated in illegal conduct, including torture, at the Abu Ghraib prison in Iraq where it
was hired by the U.S. to provide interrogation services. CCR's four clients were all held at the
“hard site” in Abu Ghraib prison in 2003-2004. This case is part of CCR’s effort to bring
accountability for torture and other serious violations of international law arising out of the so-
called “war on terror” and invasion of Iraq.
Facts:
Al Shimari et al are Iraqi civilians who were ultimately released without ever being
charged with a crime. They all continue to suffer from physical and mental injuries caused by the
torture and other abuse they endured during detention at Abu Ghraib prison.
Suhail Najim Abdullah Al Shimari was detained from 2003 until 2008, during which he
was held at the Abu Ghraib “hard site” for about two months. While he was there, CACI and its
co-conspirators tortured him in various ways: he was subjected to electric shocks, deprived of
food, threatened by dogs, and kept naked while forced to engage in physical activities to the
point of exhaustion.
Taha Yaseen Arraq Rashid was detained from 2003 until 2005, during which he was
imprisoned at the Abu Ghraib “hard site” for about three months. While he was detained there,
CACI and its co-conspirators tortured Mr. Rashid by placing him in stress positions for extended
periods of time; humiliating him; depriving him of oxygen, food, and water; shooting him in the
head with a taser gun; and by beating him so severely that he suffered broken limbs and vision
loss. Mr. Rashid was forcibly subjected to sexual acts by a female as he was cuffed and shackled
to cell bars. He was also forced to witness the rape of a female prisoner.
Asa’ad Hamza Hanfoosh Zuba’e was imprisoned at Abu Ghraib from 2003 until 2004.
CACI and its co-conspirators tortured him while he was detained there by subjecting him to
extremely hot and cold water, beating his genitals with a stick, and detaining him in a solitary
cell in conditions of sensory deprivation for almost a full year.
Salah Hasan Nusaif Al-Ejaili, an Al Jazeera journalist, was imprisoned at the Abu Ghraib
“hard site” for approximately four months. While he was there, CACI and its co-conspirators
stripped him and kept him naked, threatened him with dogs, deprived him of food, beat him, and
kept him in a solitary cell in conditions of sensory deprivation.
Issue:
Whether petitioners can file a claim against defendant under the Alien Tort Statute on
the ground that war crimes, torture, and cruel, inhuman, and degrading treatment are all
Juna Luz B. Latigay – Abu Ghraid Prison Case

universally recognized violations of international law and that corporations can be held liable
under the ATS
Ruling:
 In 2011, case was dismissed on the ground of “battlefield preemption”.
 In the same year, petitioner filed opposition on said ruling arguing that there is no
“law of war” immunity for torture, that CACI is not entitled to derivative absolute
immunity, that state law cannot be wholly displaced through preemption or
“battlefield immunity.
 In 2013, the court held that the Alien Tort Statute cannot apply to violations
occurring outside the United States, and that the remaining common law claims
are barred because Iraqi law applies
 In 2014, CCR files a brief setting out the elements of their claims of war crimes,
torture, and cruel, inhuman, and degrading treatment under the Alien Tort Statute.
 In 20217, court rules that claims for torture; cruel, inhuman, and degrading
treatment; and war crimes can be brought under Alien Tort Statute against private
actors.
 As of February 21, 2018 , the court rules that the acts the petitioners suffered from
in the Hard Site at Abu Ghraib constitutes torture, war crimes and cruel, inhuman
and degrading treatment. It also ruled that CACI employees conspired and aided
and abetted to cause these Alien Tort Statute violations.
Juna Luz B. Latigay – Ireland vs. U.K

Background:
 Before 1922, the island of Ireland was a constituent part of the United Kingdo
 By the 1970's, a series of complicated political events had resulted in the island
becoming two separate nations:
o The Irish Republic - an independent sovereign nation-state;
o Northern Ireland -maintained a separate "Government and Parliament"
under the sovereignty of the United Kingdom.
The Conflict: Protestant and Catholic
 Catholics - who comprise around one third of Northern Irelands population of 1.5 million
- generally supported the idea of a united Ireland.
 Protestants- preferring on the whole to remain part of the UK.
 In 1970, the situation deteriorated Irish Republican Army (IRA) - who aimed for a united
Ireland - became more violent and deadly in nature
Facts:
 Northern Ireland Government introduced Operation Demetrius
 a series of "extrajudicial measures of detention and internment of suspected
terrorists.
 serious interrogation techniques used on fourteen prisoners became known as the
"five techniques”
 Wall standing (forcing detainees to remain in a stress position for hours at
a time);
 Hooding (keeping a bag over detainees heads at all times, except during
interrogation);
 Subjection to continuous loud noise;
 Deprivation of sleep;
 Deprivation of food and drink.
 UK argued that such measures were necessary because "normal procedures of law and
order had become inadequate to deal with IRA terrorists
 Ireland on the other hand argued that such actions are in breach of ECHR [European
Convention on Human Rights] : art. 3 and art. 5 and 6 in connection with art. 15
Issue:
Whether there indeed was a breach of the above mentioned articles of the European Convention
on Human Rights.
Juna Luz B. Latigay – Ireland vs. U.K

Ruling:
 Article 3 [ECHR]: No one shall be subjected to torture or inhuman or degrading
treatment or punishment.
 the Court concluded that the five techniques breached Article 3 as they amounted
to "inhuman and degrading treatment." However, this treatment was not
considered serious enough to amount to "torture," which was reserved for the
most serious of breached of Article 3
 Degrading treatment VS Torture
 torture under international law has a subjective element that evolves over time
 allows scope of derogation under Article 15
Juna Luz B. Latigay – Aksoy vs. Turkey

Background
 Since approximately 1985, serious disturbances have raged in the South-East of Turkey
between the security forces and the members of the PKK (Workers’ Party of Kurdistan)
who called for the establishment of an independent Kurdish state within Turkey. This
confrontation has so far, according to the Government, claimed the lives of 4,036
civilians and 3,884 members of the security forces.
Facts:
 Zeki Aksoy was a Turkish citizen who, at the time of the events in question, lived in
Mardin, Kiziltepe, in South-East Turkey, where he was a metal worker.
 In November 1992, Aksoy was taken in custody by policemen accompanied by a detainee
named Metin who allegedly identified petitioner as member of the PKK.
 On the 2nd day of detention, he claimed that stripped naked, his hands were tied behind
his back and he was strung up by his arms in the form of torture known as "Palestinian
hanging". While he was hanging, the police connected electrodes to his genitals and
threw water over him while they electrocuted him.
 He was allegedly between up repeatedly during custody and was refused permission to
see a doctor when he lost movement of his arm.
 He was released in December 1992 and was immediately brought to a public prosecutor.
 No criminal or civil proceedings have been brought in the Turkish courts in relation to
the alleged ill-treatment of the applicant.
 On April 16, 1994, Mr. Aksoy was shot dead.
 His father now indicates that he wishes to pursue the case
Issue:
Whether there was a violation of Art. 3 and Art. 5 of the ECHR.
Ruling:
 The court held that when an individual is taken into police custody in good health and
found injured at the time of release, the State had an obligation to explain the causing of
the injury. The Court found that the treatment inflicted to the applicant was deliberate,
serious and cruel so it was torture. Accordingly there had been a violation of Article 3
ECHR. The Court also held that the fourteen days of detention without judicial
supervision was exceptionally long and thus was in breach of Article 5.
June Latigay – Aydin vs. Turkey

Facts:
 Sukran Aydin was 17 years old when a group of village guards came to their home and
questioned them about the visits of PKK members in their house.
 They were taken to the village square and was subsequently brought to the Derik
gendarmerie headquarters.
 Sukran was then separated from her family, was severely beaten, stripped and sprayed
with cold water from high pressure jets while being spun in a tyre.
 She was then taken to the interrogation room where a military man raped her.
 Upon return to their village, they went to the to the office of the public prosecutor to
report what happened.
 However, the public prosecutor sent Sukran to see a doctor to determine whether she was
a virgin or not.
 The result of the test showed that her hymen was torn and there was widespread bruising
around her thighs but it was established whether she was virgin prior the alleged rape.

Issue:
Whether there was a violation of certain provisions of the ECHR.

Ruling:

 The court held that rape of a detainee by an official of the State an especially grave and
abhorrent form of ill-treatment – applicant 17 years old at the time – also subjected to
other forms of physical and mental suffering – terrifying and humiliating experiences –
accumulation of acts ofviolence, especially act of rape, amounted to torture, a violation of
Article 3 of the ECHR.
 The reluctance of the public prosecutor in pursuing the case was also tantamount to
violation of Sukran’s right under Article 13 of the same code.
Highlights:
 1st time that the court recognized rape as a form of torture rather than mere acts of sexual
violence.
 “Virgin Testing”
 Violates the rule against torture and or cruel, inhuman or degrading treatment.
June Latigay – Aydin vs. Turkey

 Promotes the idea that women should be valued according to whether they have
had penetrative sexual contact.
 Subjecting a woman under said test against her will is in itself a vviolation of the
right not to be tortured.