Topic: Treaty Obligation

Case: Reparation for Injuries Suffered in the Service of the United Nations,
Advisory Opinion, I.C.J. Reports 1949
ISSUE: The questions asked of the Court relate to the capacity to bring an international
claim by the United Nations n the performance of his duties suffering injury in
circumstances involving the responsibility of a State.
ICJ RESOLVES: The questions to which gives rise to it can only be solved by realizing
that the situation is dominated by the provisions of the Charter considered in the light of
the principles of international law. The Charter does not expressly confer upon the
Organization the capacity to include, in its claim for reparation, damage caused to the
victim or to persons entitled through him. The Court must therefore begin by enquiring
whether the provisions of the Charter concerning the functions of the Organization, and
the part played by its agents in the performance of those functions, imply for the
Organization power to afford its agents the limited protection that would consist in the
bringing of a claim on their behalf for reparation for damage suffered in such
circumstances.
For that purpose, it is necessary that, when an infringement occurs, the
Organization should be able to call upon the responsible State to remedy its
default, and, in particular, to obtain from the State reparation for the damage that
the default may have caused to its agent.
Re Treaty:
The obligations entered into by States to enable the agents of the Organization to
perform their duties are undertaken not in the interest of the agents, but in that of
the Organization. When it claims redress for a breach of these obligations, the
Organization is invoking its own right, the right that the obligations due to it should be
respected. On this ground, it asks for reparation of the injury suffered, for it is a principle
of international law that the breach of an engagement involves an obligation to make
reparation in an adequate form
Case: Interpretation of Peace Treaties with Bulgaria, Hungary and Romania,
Second Phase, Advisory Opinion, I.C.J. Reports
ISSUE: Whether the Secretary-General of the United Nations could appoint the member
to the Treaty Commission which had not been appointed due to the refusal by the party
to that Treaty.
ICJ RESOLVES: It has been contended that the term third member is used here
simply to distinguish the neutral member from the two Commissioners appointed by the
parties without implying that the third member can be appointed only when the two
national Commissioners have already been appointed, and that therefore the mere
fact of the failure of the parties, within the stipulated period, to select the third member
by mutual agreement satisfies the condition required for the appointment of the latter by
the Secretary-General. The Court considers that the text of the Treaties does not
admit of this interpretation. While the text in its literal sense does not completely
exclude the possibility of the appointment of the third member before the

appointment of both national Commissioners it is nevertheless true that

according to the natural and ordinary meaning of the terms it was intended that
the appointment of both the national Commissioners should precede that of the
third member.
This clearly results from the sequence of the events contemplated by the article
appointment of a national Commissioner by each party ; selection of a third member by
mutual agreement of the parties ; failing such agreement within a month, his
appointment by the Secretary-General. Moreover, this is the normal order followed in the
practice of arbitration, and in the absence of any express provision to the contrary there
is no reason to suppose that the parties wished to depart from it.
The Secretary-General's power to appoint a third member is derived solely from the
agreement of the parties as expressed in the disputes clause of the Treaties ; by its very
nature such a clause must be strictly construed and can be applied only in the case
expressly provided for therein. The case envisaged in theTreaties is exclusively
that of the failure of the parties to agree upon the selection of a third member and by no
means the much more serious case of a complete refusal of co-operation by
one of them, taking the formof refusing to appoint its own Commissioner. The power
conferred upon the Secretary-General to help the parties out of the difficulty of agreeing
upon a third member cannot be extended to the situation which now exists.
Reference has been made for the purpose of justifying the reversal of the normal
order of appointment, to the possible advantage that might result, in certain
circumstances, from the appointment of a third member before the appointment by the
parties of their respective commissioners. Such a change in the normal sequence could
only be justified if it were shown by the attitude of the parties that they desired such a
reversal in order to facilitate the constitution of the Commissions in accordance with the
terms of the Treaties . But such is not the present case.
The Governments of Bulgaria, Hungary and Romania have from the beginning denied
the very existence of a dispute, and have absolutely refused to take part, in any manner
whatever, in the procedure provided for in the disputes clauses of the Treaties. Even
after the Court had given its Advisory Opinion of March 30th, 1950, which declared that
these
three
Governments
were
bound
to
carry
out
the
provisions of the Peace Treaties for the settlement of disputes, particularly the obligation
to appoint their own Commissioners, these Governments have continued to adopt a
purely negative attitude.
In these circumstances, the appointment of a third member by the Secretary-General,
instead of bringing about the constitution of a three member Commission such as
the Treaties provide for, would result only in the constitution of a two-member
Commission. A Commission consisting of two members is not the kind ofcommission for
which the Treaties have provided. The opposition of the Commissioner of the only party
represented could prevent a Commission so constituted from reaching any decision
whatever. Such a Commission could only decide by unanimity, whereas the dispute
clause provides that the decision of the majority of the members of the Commission
shall be the decision of the Commission and shall be accepted by the parties as
definitive and binding. Nor would the decisions of a Commission of two members,
one of whom is appointed by one party only, have the same degree of moral authority as

those of a three-member Commission. In every respect, the result would be contrary to

the letter as well as the spirit of the Treaties.
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
refusal
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.
RE TREATY
As the Court has declared in its Opinion of March 30th, 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 refusal to fulfil
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 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 theTreaties, 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 ofdisputes in the Peace Treaties a meaning which, as
stated above, would be contrary to their letter and spirit.

Topic: ICCPR Extraterritorial Application

Case: Lopez Burgos v Uruguay
Other Name: Saldias de Lopez (on behalf of Lopez Burgos) v Uruguay, Merits,
Communication No 52/1979, UN Doc CCPR/C/13/D/52/1979, IHRL 2796 (UNHRC
1981), 29th July 1981, Human Rights Committee [UNHRC]
Facts:
Mrs. de Lopez, a Uruguayan national resident in Austria, lodged a
communication on behalf of her husband, Mr. Sergio Ruben Lopez Burgos, a trade
union leader. Mr Lopez Burgos, who had been granted political asylum in Argentina,
was kidnapped in Buenos Aires in July 1976 by Uruguayan forces aided by Argentine

para-military groups. He was detained in Argentina for about a fortnight and then moved
with several other Uruguayan nationals to Uruguay, where he was detained
incommunicado for three months. According to the testimony of six people held with
Lopez Burgos, who named the officers involved, he was subjected to various forms of
torture and other mistreatment during his detention, which led to a broken jaw (from an
assault on arrest) and perforated eardrums.
In October 1976, several detainees including Lopez Burgos were taken to a
chalet on a beach and arrested there. The press was informed that a subversive
conspiracy had been broken up. In November 1976, Lopez Burgos was charged with
subversive association. Lopez Burgos and others signed false confessions and were
coerced by threats into nominating a military officer as their counsel. The trial
commenced in April 1978. Lopez Burgos was sentenced to seven years' imprisonment,
which was reduced on appeal in October 1979 to four years and six months. It was
alleged that the prosecution arose from his trade union activities. Uruguay stated that
Lopez Burgos had not been in custody before the arrest at the chalet in October 1976,
and that he enjoyed the legal rights guaranteed in Uruguay, including counsel of his
choice. Uruguay also commented that his broken jaw arose from athletic activities in
prison, though prison records had recorded it as a pre-existing injury.
Uruguay did not comply with a request to supply relevant court orders and judgments.
HRC HELD:
The abduction of Lopez Burgos amounted to arbitrary arrest and detention in
breach of Article 9(1). The measures could not be justified under any derogation under
Article 4 of the International Covenant on Civil and Political Rights (16 December 1966)
999 UNTS 171, entered into force 23 March 1976 (ICCPR), especially as some of the
allegations concerned non-derogable rights. (paragraph 11.6)
The initial kidnapping, detention, and mistreatment of Lopez Burgos had
occurred in Argentina, but was perpetrated by Uruguayan agents. Article 2(1) of the
ICCPR and Article 1 of the Optional Protocol to the International Covenant on Civil and
Political Rights (16 December 1966) 999 UNTS 171, entered into force 23 March 1976
(Optional Protocol) did not prevent states from being accountable for violations that
their agents perpetrated in the territory of another state. (paragraph 12.1)The treatment
of Lopez Burgos in Argentina and Uruguay from July to October 1976 breached Article 7,
and included torture. (paragraph 13)
RE Extraterritoriality
This case establishes that a state could be liable for violations of the ICCPR
perpetrated by its agents outside its borders, as the victims were in those instances
subject to its jurisdiction. This conclusion was reached even though the text of
Article 2(1) of the ICCPR seemed to pose a territorial limit to the liability of a state.
The Human Rights Committee (HRC) has interpreted that provision, as well as
Article 1 of the Optional Protocol, broadly in this regard.
Optional Protocol Provision:
Article 1
A State Party to the Covenant that becomes a Party to the present Protocol
recognizes the competence of the Committee to receive and consider communications

from individuals subject to its jurisdiction who claim to be victims of a violation by that
State Party of any of the rights set forth in the Covenant. No communication shall be
received by the Committee if it concerns a State Party to the Covenant which is not a
Party to the present Protocol.
Topic: ICCPR Extraterritorial Application
Case: Casariego vs. Uruguay
Issue: Whether a state was liable under the ICCPR for violations perpetrated by its
agents outside its territory
Since 1974 Lilian Celiberti de Casariego, DUAL CITIZEN, a Uruguayan citizen by birth
and of Italian nationality based on jus sanguinis, had been living in Milan, Italy, with her
husband and two children. Mrs. Celiberti had been authorized to leave Uruguay in 1974.
While in Uruguay she had been an active member of the Resistencia Obrero-Estudiantil
and in this connection she had been arrested for "security reasons", and subsequently
released, several times. In 1978 Mrs. Celiberti, her two children (3 and 5 years of age)
and Universindo Rodriguez Diaz, a Uruguayan exile living in Sweden, traveled to Porto
Alegre (Brazil) purportedly to contact Uruguayan exiles living there.
The author claims that, based on information gathered, inter alia, by representatives of
private international organizations, the Lawyers' Association in Brazil, journalists,
Brazilian parliamentarians and Italian authorities, Mrs. Celiberti was arrested on 12
November 1978 together with her two children and Universindo Rodriguez Diaz in their
apartment, in Porto Alegre, by Uruguayan agents with the connivance of two Brazilian
police officials (against whom relevant charges have been brought by Brazilian
authorities in this connection). From 12 November probably to 19 November 1978, Mrs.
Celiberti was detained in her apartment in Porto Alegre. The children were separated
from their mother and were kept for several days in the office of the Brazilian political
police. The mother and the children were then driven together to the Uruguayan border
where they were separated again. The children were brought to Montevideo (Uruguay)
where they remained for 11 days in a place together with many other children before
being handed over on 25 November 1978 by a judge to their maternal grandparents.
Mrs. Celiberti was forcibly abducted into Uruguayan territory and kept in
detention.
The author claims that the following provisions of the International Covenant on
Civil and Political Rights have been violated by the Uruguayan authorities in respect of
Lilian Celiberti de Casariego: articles 9, 10 and 14.
RE EXTRATERRITORIALITY
The Human Rights Committee observes that although the arrest and initial detention of
Lilian Celiberti de Casariego allegedly took place on foreign territory (BRAZIL), the
Committee is not barred either by virtue of article 1 of the Optional Protocol ("...
individuals subject to its jurisdiction ... ") or by virtue of article 2 (1) of the
Covenant ("... individuals within its territory and subject to its jurisdiction ...") from
considering these allegations, together with the claim of subsequent abduction into

Uruguayan territory, inasmuch as these acts were perpetrated by Uruguayan agents

acting on foreign soil.
Article 2 (1) of the Covenant places an obligation upon a State party to
respect and to ensure rights "to all individuals within its territory and subject to its
jurisdiction", but it does not imply that the State party concerned cannot be held
accountable for violations of rights under the Covenant which its agents commit
upon the territory of another State, whether with the acquiescence of the
Government of that State or in opposition to it.
According to article 5 (1) of the Covenant:
Nothing in the present Covenant may be interpreted as implying for any
State, group or person any right to engage in any activity or perform any act
aimed at the destruction of any of the rights and freedoms recognized herein or at
their limitation to a greater extent than is provided for in the present Covenant.
In line with this, it would be unconscionable to so interpret the responsibility under article
2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on
the territory of another State, which violations it could not perpetrate on its own territory.
Topic: ADMISSIBILITY
Case: Mavrommatis Jerussalem Concessions
Factory at Chorzow
Topic: Right to Privacy
Halford v. United Kingdom , (20605/92) [1997] ECHR 32 (25 June 1997)
Facts: Ms Halford was appointed to the rank of Assistant Chief Constable with the
Merseyside Police. Following a refusal to promote her, Ms Halford commenced
proceedings in the Industrial Tribunal claiming that she had been discriminated against
on grounds of sex. Ms Halford alleges that certain members of the Merseyside Police
Authority launched a 'campaign' against her in response to her complaint to the
Industrial Tribunal. This took the form of leaks to the press and interception of her
telephone calls.
Complaints: She alleges that calls made from her home and her office telephones were
intercepted for the purposes of obtaining information to be used against her in the
discrimination proceedings. She claims a breach of Article 8 of the Convention.
Holding: The ECHR held that conversations made on the telephones in Ms Halford's
office at Merseyside Police Headquarters fell within the scope of "private life" and
"correspondence" in Article 8 1, since the Court in its case-law had adopted a broad
construction of these expressions (see Niemietz v. F.R.G and Chappell v. U.K). However
it did not find a violation of Article 8.

Reasoning: With respect to Article 8 the Court observed that telephone calls made from
business premises may be covered by notions of 'private life' and 'correspondence'. The
telephone conversations made by Ms Halford on her office telephones fell within the
scope of the notions of 'private life' and 'correspondence' and that Article 8 was therefore
applicable to this part of the complaint. The Court did not find that there was an
interference with Ms Halford's rights to respect for her private life and correspondence in
relation to her home telephone. Accordingly, the Court did not find a violation of Article 8
of the Convention with regard to telephone calls made from Ms Halford's home.
Ioardachi and ors vs. UK
Liberty and ors vs. UK
Weber vs. Germany
Concluding Observations in Korea
Extraterritorial Application of the ICCPR
Lopez Burgos vs. Uruguay
Casa Riego vs. Uruguay
The applicants in this case were two lawyers and a judge, who complained of a law that
allowed surveillance to be decided by the executive and which did not require that
persons subject to suchsurveillance be subsequently notified. The decision to
undertake such surveillance was taken by a Federal Minister based on a reasoned
written application by the head of certain services. An initial control of the implementation
of the measure had to be carried out by a judicial official and the continuance of the
measure was then subject to the consent of a commission appointed by an independent
parliamentary body which comprised members from different political parties, including
the opposition.
On the need to undertake surveillance measures, the Court noted the following:
Democratic societies nowadays find themselves threatened by highly sophisticated
forms of espionage and by terrorism, with the result that the State must be able, in order
effectively to counter such threats, to undertake the secret surveillance of subversive
elements operating within its jurisdiction. The Court has therefore to accept that the
existence of some legislation granting powers of secret surveillance over the mail, post
and telecommunications is, under exceptional conditions, necessary in a democratic
society in the interests of national security and/or for the prevention of disorder or
crime.38
With regard to the conditions under which the surveillance is carried out, the Court
stated that some discretion needs to be left to the State, but that whatever system
of surveillance is adopted there must exist adequate and effective guarantees against
abuse.39
In this case, the Court took into account that the law required the measures to be
renewed every three months, to be discontinued when no longer needed, and that the
material collected could not be used for ends other than the stated purpose for
the surveillance.

Topic: Implicit Admission

Nicaragua vs. US
Topic: Admissibility of Newspaper Articles
Macedonia vs. Greece
Nicaragua vs. US
Topic: Circumstantial Evidence
Corfu Channel
Topic: Diplomatic Immunity
Tehran Judgment
Topic: Countermeasure
Gabcikovo
Tehran Judgement
Topic: Treaty Interpretation
Avena
La Grand