BRISBANE MODEL UNITED NATIONS CONFERENCE

INTERNATIONAL COURT OF JUSTICE

BRIEFING paper

APRIL | 4 - 7 | 2013 | NATHAN CAMPUS | GRIFFITH UNIVERSITY

1.0 //SCOPE

At BrizMUN 2013, the International Court of Justice (ICJ) will issue an advisory opinion on a legal dispute involving water security, territorial integrity, the definition of an ‘armed attack’, the right to self-defence, and issues of international quarantine.

Because you, our judges, will only be fully informed of the topic at the conference itself, this briefing paper is designed to assist you with your research in preparation for BrizMUN 2013.

2.0 //JURISDICTION OF THE ICJ

The ICJ has jurisdiction to deliver two kinds of judgements: contentious cases and advisory opinions.

2.1 Contentious cases

In contentious cases, the ICJ delivers a binding judgment [1] to settle a specific dispute between two states (both of whom must consent to the jurisdiction of the Court). [2]

2.2 Advisory opinion

In advisory opinions, the ICJ has discretion to deliver a non-binding opinion [3] on a legal issue, typically referred to it by the General Assembly or Security Council. [4] In practice, advisory opinions are highly persuasive.

Advisory opinions are often requested by UN organs to assist them to carry out their functions. For example, in the Israeli Wall Case, the ICJ provided an advisory opinion to the General Assembly regarding Israel’s construction of a wall in Occupied Palestinian Territory. [5]

Aside from technical issues of jurisdiction, the ICJ will only refuse to issue an advisory opinion for ‘compelling reasons’: [6] namely, circumvention of sovereign consent, questions devoid of purpose or legal substance, and constraints imposed by the ‘judicial character’ of the court.

You will be asked to deliver an advisory opinion, but may assume that the matter has been properly referred to the Court and that the Court has jurisdiction to hear it.

You should read: Articles 65 – 68 of the Statute of the International Court of Justice which detail the procedure for delivering an advisory opinion.

3.0 //APPLICABLE LAW

3.1 Relevant sources of law

The consensual nature of international law means that the relevant sources of law are those sources that states agree are the law. [7] Article 38(1) of the Statute of the International Court of Justice sets out the applicable sources of law as:

- international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

- international custom, as evidence of a general practice accepted as law;

- the general principles of law recognized by civilized nations;

- subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified

publicists of the various nations, as subsidiary means for the determination of rules of law. [8]

The ICJ interprets these sources of law broadly. For instance, in the Israeli Wall Case, the Court considered a decision of the Israeli Supreme Court, reports of UN Special Rapporteurs and the Human Rights Committee, and a proposal by the International Law Commission. [9]

Although the ICJ is not bound by previous judgments, [10] the Court is permitted by Article 38(1)(d) to consider its own prior decisions. In practice, such decisions are highly persuasive.

3.2 Hierarchy of sources

There is no strict order in which the sources listed in Article 38 must be applied but those listed first are typically prioritised: first treaties, followed by customary international law, general principles of law, judicial decisions, and as a last resort, the writings of eminent jurists.

3.3 Customary international law

You should be familiar with the principles of customary international law, as established by consistent state practice (the objective element) coupled with a widespread belief that the rule is obligatory (the subjective element). [11] You should also understand jus cogens.

You should read: Gillian Triggs, International Law: Contemporary Principles and Practices (LexisNexis Butterworths, 2nd ed, Sydney) [2.6] – [2.52] 25 - 60.

4.0 //PROHIBITION ON THE THREAT OR USE OF FORCE

In Armed Activities on the Territory of the Congo, [12] the International Court of Justice (ICJ) described the prohibition on the use of force as ‘a cornerstone of the UN Charter’.13 Article 2(4) provides:

All Members shall refrain... from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the purposes of the UN. [14]

The prohibition is also a jus cogens principle of law from which no derogation is permitted. [15]

4.1 Meaning of “against the territorial integrity” under Article 2(4)

Read restrictively, Article 2(4) might imply that force employed consistently ‘with the purposes of the UN’ (for example, humanitarian intervention) is not force ‘against the territorial integrity’ of another state and is not prohibited. [16] Attempts have been made to justify the NATO bombing of Kosovo in 1999 and the US invasion of Iraq in 2003 on this ground.

However, the view endorsed by the Security Council, General Assembly [17] and ICJ [18] is that any use of force is prohibited unless specifically excused by the Charter. [19]

4.2 Meaning of “force” under Article 2(4)

Direct military intervention

It is obvious that direct military intervention in another state will constitute a use of force.

For example, In Armed Activities, Uganda violated Article 2(4) by allowing its defence forces to ‘[traverse] vast areas of the DRC’ and ‘engage in military operations’. [20]

Likewise, the US violated Article 2(4) in the Nicaragua Case by laying mines in Nicaraguan territorial waters and by attacking Nicaraguan ports, oil installations and naval bases. [21]

Providing assistance

In contemporary international law, the more vexing question is whether support for rebel groups acting against established governments will constitute use of force.

The General Assembly’s Declaration on Friendly Relations is particularly useful in determining which acts will constitute a ‘use of force’ or a violation of territorial integrity. Amongst other things, it prohibits:

- organizing or encouraging the organization of irregular forces or armed bands including mercenaries, for incursion into the territory of another State; and

- organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts. [22]

Accordingly, in the Nicaragua Case, the ICJ found that the US breached the prohibition on the use of force by ‘organising or encouraging the organisation of irregular forces of armed bands... for incursion into the territory of another State’ and by ‘participating in acts of civil strife... in another State’. [23] In that case, the US attempted to justify its assistance of Contra guerrillas against Nicaragua’s Sandinista Government as an exercise in collective self-defence.

On the other hand, the mere supply of funding by the US to the Contra Guerillas was not a use of force, nor were sabre-rattling military operations held near the Nicaraguan border. [24]

Likewise, in Armed Activities, Uganda’s support for the Congo Liberation Movement violated Article 2(4). [25] Although the MLC’s actions could not be attributed to Uganda, Uganda’s military, financial and logistical support for the MLC was a use of force [26] in the same way United States support for Contras in Nicaragua was. [27]

Non-military pressure

Non-military pressure(such as economic coercion) will not constitute a ‘use of force’ in violation of Article 2(4), [28] but may violate the principles of non-intervention and sovereignty. [29] You should also consider the right to retorsion (as distinguished from reprisals).

4.3 Meaning of ‘threat ... of force’ under Article 2(4)

If the use of force is contrary to Article 2(4), so too will be the threat of that force.

For example, threats by the People’s Republic of China with the intention of deterring Taiwanese voters from electing Chen Shui-bian as President would likely violate Article 2(4) as would the launch of three missiles across the Strait of Taiwan in 1996. [30]

On the other hand, in the Nuclear Weapons Case, the ICJ was not prepared to conclude that the use of nuclear weapons could not lawfully be used in self-defence and therefore found that the threat of nuclear weapons as a deterrence strategy did not violate Article 2(4). [31]

5.0 //EXCEPTIONS TO THE PROHIBITION ON THE USE OF FORCE

The UN Charter provides two exceptions to the threat or use of force:

- Security Council authorisation; [32] and

- the right to self-defence, ‘within the strict confines’ [33] of Article 51. [34]

Further exceptions under customary law include consent [35] and possibly the protection of nationals abroad [36] and humanitarian intervention. [37]

5.1 Security Council authorisation

If the Security Council decides that non-military measures are inadequate, it may employ such military steps as are necessary to restore international peace and security. [38]

However, in Armed Activities on the Territory of the Congo, the Security Council’s resolution that armed activities in the DRC were ‘threats to peace, stability and security’ did not justify Uganda’s intervention without further, explicit authorisation. [39]

5.2 Consent

Force carried out at the invitation of the State concerned will not violate Article 2(4). [40] Such consent may be revoked at any time and is interpreted strictly.

For instance, in Armed Activities on the Territory of the Congo, President Kabila’s consent for Uganda to assist against rebels in the DRC41 was revoked when he called for the withdrawal of ‘all foreign military forces’. [42] In any case, Ugandan forces exceeded the scope of the limited invitation to fight rebels by capturing entire towns in the DRC. [43]

5.3 Self-defence

Article 51 of the UN Charter recognises the ‘inherent right of individual or collective self- defence if an armed attack occurs.’ [44]

Notice requirements

Use of force under Article 51 must immediately be ‘reported to the Security Council’. [45] In Armed Activities, Uganda’s activities in the DRC were unlawful because the Security Council was not notified. [46]

Armed attack

Self-defence under Article 51 must be in response to armed attack. [47]

The use of force by regular armed forces clearly constitutes an ‘armed attack’. [48]

Support for irregular armed bands may also constitute an ‘armed attack’. For instance, in Nicaragua, the ICJ interpreted ‘armed attack’ narrowly to include support for irregular forces on a significant scale, where the attack was attributable to a state. [49]

In contrast, the trans-border attacks by anti-Ugandan forces in Armed Activities – though significant – were not attributable to the DRC. Regrettably, the ICJ declined to clarify whether Uganda would have a right of self-defence in these circumstances. [50]

Importantly, the state relying on the right to self-defence has the burden of establishing that an armed attack occurred against it. [51] Accordingly, the US was unable to rely on a right to self- defence to justify its attacks against Iran in the Oil Platforms Case as it was unable to establish that damage to a US warship by a mine constituted an ‘armed attack’ by Iran.

Requirements of necessity and proportionality

As was famously formulated in the Caroline Case and affirmed by the ICJ in the Nuclear Weapons Case, any use of force in self-defence must be proportionate and necessary. [52]

For example, in Armed Activities, capturing towns hundreds of kilometres from the border was probably not a proportionate response to the trans-border attacks against Uganda. [53] Likewise, destroying Iranian oil platforms was not proportional to an attack on a US-flagged ship. [54]

Anticipatory self-defence: Caroline principles

Article 51 recognizes the ‘inherent’ right of states to self-defence. Some jurists controversially suggest that this preserves a pre-existing customary law right to pre-emptive self-defence (as formulated in the Caroline Case) before an ‘armed attack’ occurs. [55] Notably, this line of reasoning has been invoked to justify the invasion of Iraq in 2003.

Other jurists argue that the aims of the UN Charter preclude such an interpretation. Critically, states ‘should not be encouraged to strike first under pretext of prevention or pre-emption.’ [56]

This approach seems to have been endorsed by the Security Council which condemned Israel’s bombing of a nearly completed nuclear reactor in Iraq in 1981 [57] and called for the withdrawal of Israeli forces from Occupied Palestinian Territory in response to Israel’s anticipatory strike in the Six-Day War in 1967. [58]

Nevertheless, a broad interpretation of ‘armed attack’ might justify necessary and proportional pre-emptive use of force to repel an armed attack which is genuinely imminent. Triggs suggests that the coalition invasion of Iraq may have been justified on this ground if its claims that weapons of mass destruction could be assembled in 45 minutes proved correct. [59]

Anticipatory self defence: accumulation of events

An alternative approach to the problem of anticipatory self-defence is to regard a series of cross-border guerrilla activities or terrorist attacks as part of an ‘accumulation of events’ which constitutes a single ‘armed attack’. [60]

While this approach received tentative support in the Oil Platforms Case (which ultimately failed for proportionality reasons), [61] it was rejected by the Security Council which categorised the Harib Fort Incident as an ‘illegal reprisal’. [62]

It is also inconsistent with the ICJ’s limited definition of ‘armed attack’ in Nicaragua. [63]

Collective self-defence

Customary international law permits a collective right of self-defence which allows one state to intervene on behalf of another state that has declared itself the victim of an armed attack and requests assistance. [64] This right is also recognised expressly by Article 51.

Thus, in Nicaragua, the US sought to justify its intervention in Nicaragua by reference to an ‘armed attack’ by Nicaragua against El Salvador, Honduras and Costa Rica. However, the ICJ rejected this argument as there was no express request by any of these ‘victim states’ for assistance (notwithstanding the fact that an ‘armed attack’ was never established). [65]

5.4 Defence of nationals abroad

Some states have controversially attempted to justify the use of force for the purpose of protecting nationals abroad who may have been attacked or threatened by another state. [66]

For instance, in the Entebbe incident, Israel defended its 1976 intervention in Uganda as an act of self-defence to rescue hijacked Israeli passengers.67 More controversially, the US sought to justify its bombing of Libya in 1986 as defence against an attack on US servicemen in Berlin. [68]

In Spanish Zones of Morocco Claims, the ICJ acknowledged that ‘the interest of a State in exercising protection of its nationals and their property can take precedence over territorial sovereignty’, [69] but only where other means of protection are inadequate.

Nevertheless, many states have rejected the right of self-defence to protect nationals abroad as it has historically been used by strong states to mask intervention in weaker ones. [70]

Absent Security Council authorisation, the right is severely curtailed by the requirements of necessity and proportionality that govern any purported exercise of force in self-defence.

6.0 //STATE RESPONSIBILITY FOR INTERNATIONALLY WRONGFUL ACTS

Under the Draft Articles on the Responsibility of States for Internationally Wrongful Acts adopted by the International Law Commission in 2001, a state is responsible for its internationally wrongful acts. [71]

Though these draft articles are not technically binding, they are highly authoritative because they essentially codify existing international law [72] and have been cited by the ICJ on previous occasions. [73]

You must read: ILC, Draft Articles on the Responsibility of States for Internationally Wrongful Acts

You should also read: Gillian Triggs, International Law: Contemporary Principles and Practices (LexisNexis Butterworths, 2nd ed, Sydney) [9.8] – [9.72] 510 - 551.

6.1 Elements of an internationally wrongful act.

Article 2 of the ILC Articles describes an ‘internationally wrongful act’ as conduct consisting of an act or omission that:

- is attributable to the State under international law; and

- constitutes a breach of an international obligation of the State. [74]

An act or omission attributable to the state

Chapter II of the ILC Articles deals with the attribution of conduct to the State. Amongst other things, a State will be responsible for:

- the conduct of any State organ, even if it exceeds its authority: Articles 4 and 7

- the conduct of a person empowered to exercise government authority, acting in that capacity in the particular instance, even if it exceeds its authority: Articles 5 and 7

- the conduct of organs placed at the disposal of a State by another State: Article 6

- the conduct of person acting on the instructions of, or under the direction or control of, the State: Article 8

- the conduct of a person exercising elements of governmental authority in the absence or default of the official authorities: Article 9

- the conduct of an insurrectional movement which becomes the new Government of a State: Article 10- conduct which is not attributable to the State but is nevertheless acknowledged by the State as its own: Article 11

Breach of an international obligation

Chapter III of the ILC Articles deals with when ‘breach of an international obligation’ occurs. The phrase is broad enough to cover both treaty and non-treaty obligations. [75]

Importantly, Article 3 of the ILC Articles stipulates that a State’s internal laws are irrelevant to determination of whether an act or omission of that State is internationally wrongful.

Article 13 of the ILC Articles reflects the principles of inter-temporal law and makes clear that a state is only responsible for breaches of international obligations by which it is bound.

The requisite mens rea

Article 2 of the ILC Articles requires that the act or omission is attributable to the State.

The draft articles of the ILC do not refer to the test for attribution as either subjective orobjective and there is conflicting authority as to which of these tests should be applied.

If the test is subjective, whether a wrongful act or omission is attributable to a State would depend on the mens rea of the State. In other words, the knowledge, intention or fault of the State is relevant to deciding whether an act or omission is attributable to it. In the Home Missionary Society Claim, [76] the subjective approach was used and the Corfu Channel Case [77] applied the fault theory.

On the other hand, some case-law and academic opinions recognise that strict liability should be imposed on States, regardless of culpability, fault, and mens rea. Both the Neer [78] and Caire [79] claims applied an objective test, imposing strict liability.

Whether the objective or subjective tests are to be used depends on the international obligation in question. If treaties involve some element of fault or negligence, the subjective test is likely applicable. Alternatively, strict liability may be assumed.

Responsibility of a State in connection with the act of another State

Chapter IV of the ILC Articles establishes the circumstances where one State may be held liable for the acts or omissions of another State. There are three categories where this may occur:

- one state aids or assists another in the commission of a wrongful act: Article 16

- one state has exercised direction and control over the wrongful act of another: Article 17

- one state deliberately coerces another state into committing an act that would otherwise be an internationally wrongful act of the coerced State: Article 18

However, a finding of responsibility in these ways is without prejudice to the international responsibility of the State which actually commits the act in question: Article 19

6.3 Circumstances precluding wrongfulness

There are a range of defences to the commission of an internationally wrongful act listed in Chapter V of the ILC Articles, including:

- valid consent: Article 20

- self-defence: Article 21

- countermeasures in respect of an internationally wrongful act (as detailed in Part III, Chapter II of the

ILC Articles): Article 22

- force majeure: Article 23

- distress: Article 24

- necessity: Article 25

- compliance with peremptory norms: Article 26

Importantly, the invocation of any of these defences is without prejudice to the question of compensation for any material loss caused by the act in question: Article 27

6.4 Consequences of an internationally wrongful act.

Where a State is responsible for an internationally wrongful act, the State must:

- cease the act and offer assurances of non-repetition: Article 30

- make reparations: Article 31

In the Chorzow Factory (Indemnity) (Jurisdiction) Case, the ICJ highlighted that the aim of reparation is “as far as possible, [to] wipe out all the consequences of an illegal act and re- establish the situation which would... have existed if that act had not been committed.”

There are three recognised kinds of reparation:

1. Restitution: Article 35

2. Compensation: Article 36

3. Satisfaction : Article 37

7.0 //WATER SECURITY

United Nations Security-General Kofi Annan announced the ‘Water for Life Decade’ in 2005, delving the United Nations’ into issues related to water security. [80] Water security has not yet been defined precisely due to the multiplicity of issues,[81] but may be understood as ‘the state of having secure access to water, the assured freedom from poverty of, or want for, water for life’. [82] The United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses 1997 provides ‘a credible framework agreement’ for addressing the scope, substantive rules, procedural rules, institutional mechanisms and dispute settlement of the relations of sovereign states over water. [83]

You must read: United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses 1997

You should read: Wouters, P. (2005). Water Security: What Role for International Water Law? In F. Dodde (Ed.), Human and Environmental Security: An Agenda for Change. London: Earthscan Publications Limited.

7.1 Crucial articles

- Article 5: Equitable and reasonable utilisation and participation of an international watercourse ‘with a view to attaining optimal and sustainable utilization’ in an ‘equitable and reasonable manner’.

- Article 27: Prevention and mitigation of harmful conditions.

- Article 28: Emergency situations

- Article 29: International watercourses and installations in time of armed conflict.

This framework agreement provides a foundation for international water security, [84] particularly in cases of conflict and inequality of power by providing a level playing field and platform for cooperation.

8.0 //INTERNATIONAL QUARANTINE PROCEDURE

The World Health Organisation’s (WHO) International Health Regulations 2008 binds 194 states, inclusive of all members of the WHO. The aim of the Regulations is to ‘help the international community prevent and respond to acute public health risks that have the potential to cross borders and threaten people worldwide’. [85] The regulations seek to strike a balance between the economic benefits of international travel and trade and the public health risks associated with this process. As such, member states must ‘strengthen public health capacities at designated airports, ports and ground crossings in both routine circumstances and when responding to events that may constitute a public health emergency of international concern’. [86]

8.1 Purpose and scope

‘Prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade’ (Article 2).

8.2 Obligations of Member States

States are required to:

! Establish a National IHR Focal Point for implementation of health measures (Article 4),

! Develop and maintain the capacity to detect, assess, notify and report events (Article 5),

! Notify WHO by way of the National IHR Focal Point in terms of public health emergencies ofinternational concern (Article 6),

! Consult with WHO on appropriate health measures (Article 8),

! Develop, strengthen and maintain the capacity to respond promptly and effectively to publichealth risks and public health emergencies (Article 13).

8.3 Recommendations

Once the Director-General has determined whether a public health emergency of international concern is occurring (Article 12), the Regulations allow temporary (Article 15) and standing recommendations (Article 16) pursuant to the prescribed criteria (Article 17). These may apply to persons, baggage, cargo, containers, conveyances, goods and/or postal parcels ‘to prevent or reduce the international spread of disease and avoid unnecessary interference with international traffic’. The extent of these Recommendations is prescribed under Article 18.

8.4 Public Health Measures

Article 23 gives member states the power to require information and inspect travellers. Article 25 prohibits health measures being applied by a member state to:

a) A ship not coming from an affected area ship not coming from an affected area which passes through a maritime canal or waterway in the territory of that State Party on its way to a port in the

territory of another State. Any such ship shall be permitted to take on, under the supervision of the competent authority, fuel, water, food and supplies;

b) a ship which passes through waters within its jurisdiction without calling at a port or on the coast; and

c) an aircraft in transit at an airport within its jurisdiction, except that the aircraft may be restricted to a particular area of the airport with no embarking and disembarking or loading and discharging. However, any such aircraft shall be permitted to take on, under the supervision of the competent authority, fuel, water, food and supplies.

(unless authorised by other applicable international agreements).

Similarly, no health measures shall be applied to ‘a civilian lorry, train or coach not coming from an affected area which passes through a territory without embarking, disembarking, loading or discharging’ (Article 26) unless there are clinical signs of symptoms and information regarding a public health risk.

ship or an aircraft shall not be prevented for public health reasons from calling it at any point of entry, and shall not be refused free pratique for public health reasons, or be prevented from ‘embarking or disembarking, discharging or loading cargo or stores, or taking on fuel, water, food and supplies’ (Article 28). However, may be subject to inspection and other measures necessary to prevent the spread of infection or contamination.

Officers in command of ships and pilots in command of aircraft must make known to the port or airport control ‘any cases of illness indicative of a disease of an infectious nature or evidence of a public health risk on board’, and officers and pilots ‘may take such emergency y measures as may be necessary for the health and safety of travellers on board’ (Article 28).

8.5 Special provisions for travellers

Suspect travellers who are placed under public health observation may continue an international voyage ‘if the traveller does not pose an imminent public health risk and the State Party informs the competent authority of the point of entry at destination, if known, of the traveller’s expected arrival. On arrival, the traveller shall report to that authority’ (Article 30).

States are able to perform medical examination, vaccination, or other prophylaxis on travellers in specific circumstances (Article 31) and if the traveller fails to give consent or specific documents, entry may be denied.

With evidence of an imminent public health risk, the State Party may compel the traveller to undergo specific health measures (Article 31, subsection 2a-c). In implementing the above health measures, member states are required to ‘treat travellers with respect for their dignity, human rights and fundamental freedoms and minimise any discomfort or distress associated with such measures’ (Article 32).

8.6 Special provisions for goods, containers and container loading areas

‘Goods, other than live animals, in transit without transhipment shall not be subject to health measures under these Regulations or detained for public health purposes’ (Article 33).

Article 34 obliges member states to ensure that international traffic containers are ‘kept free from sources of infection or contamination’ and take all practicable measures including carrying out inspections.

8.7 Effect

‘Nothing in these Regulations shall prevent States Parties having certain interests in common owing to their health, geographical, social or economic conditions, from concluding special treaties or arrangements...’ (Article 57)

As such, delegates will need to conduct further research for any applicable bilateral border agreements and/or regional economic integration organisations which may contain further legal obligations relevant to your State.

//FOOTNOTES

1 Statute of the International Court of Justice Article 59; Charter of the United Nations Article 94.

2 Statute of the International Court of Justice Article 36.

3 Western Sahara Case (Advisory Opinion) (1975) ICJ Reports 12, 73 (Gros J).

4 Statute of the International Court of Justice Article 65; Charter of the United Nations Article 96.

5 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) 43 ILM 1009.

6 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) (1996) ICJ Reports 226.

7 See for example West Rand Central Gold Mining Co [1905] 2 KB 391 where Alverston LJ described international law as “whatever has received the consent of civilized nations”.

8 Statute of the International Court of Justice Article 38(1); for applicability of Article 38(1) to advisory opinions, see Statute of the International Court of Justice Article 68.

9 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) 43 ILM 1009.

10 Statute of the International Court of Justice Article 59.

11 North Sea Continental Shelf Cases (FRG v Denmark; FRG v Netherlands) (1969) ICJ Reports 3.

12 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) [2005] ICJ Rep 168 (‘DRC v Uganda’).

13 DRC v Uganda [2005] ICJ Rep 168, [148].

14 Charter of the United Nations art 2(4).

15 Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v USA) (Merits) (1986) ICJ Reports, 14.

16 Gillian Triggs, International Law: Contemporary Principles and Practices (LexisNexis, 2nd ed, 2011) 606; see for example William Reisman ‘Coercion and Self-Determination: Construing Charter Article 2(4)’ (1984) 78 AJIL 642.

17 General Assembly Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States in Accordance with the Principles of the Charter of the United Nations, GA Res 2625 (XXV), UN GAOR, 25th sess, 1883rd plen mtg, UN Doc A/RES/2625(XXV) (24 October 1970) (‘Declaration on Friendly Relations’).

18 Corfu Channel Case (United Kingdom v Albania) (Merits) [1949] ICJ Rep 3, 35.19 Triggs, above note 16; see for example Ian Brownlie, International Law and the Use of Force by States (Clarendon Press, 1963) 265 – 268.

20 DRC v Uganda [2005] ICJ Rep 168, [153].

21 Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v USA) (Merits) (1986) ICJ Reports, 14.

22 General Assembly Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States in Accordance with the Principles of the Charter of the United Nations, GA Res 2625 (XXV), UN GAOR, 25th sess, 1883rd plen mtg, UN Doc A/RES/2625(XXV) (24 October 1970).

23 Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v USA) (Merits) (1986) ICJ Reports, 14.

24 Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v USA) (Merits) (1986) ICJ Reports, 14.

25 DRC v Uganda [2005] ICJ Rep 168, [153].

26 DRC v Uganda [2005] ICJ Rep 168, [164] – [165].

27 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) (Merits) (1986) 76 ILR 349, [228] (‘Nicaragua Merits’).

28 Travaux préparatoires to the Charter of the United Nations.

29 Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations, GA Res 42/22, UN GAOR, 42nd sess, 73rd plen mtg, UN DOC A/RES/42/22 (18 November 1987) art 8; Nicaragua Merits (1986) 76 ILR 349; Corfu Channel Case (United Kingdom v Albania) (Merits) [1949] ICJ Rep 3.

30 J J Charney and JRV Prescott, ‘Resolving Cross-Strait Relations Between China and Taiwan’ (2000) 94 AJIL 453.

31 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) (1996) ICJ Reports 226.

32 Charter of the United Nations arts 39 - 45.

33 DRC v Uganda [2005] ICJ Rep 168, [148].

34 Charter of the United Nations art 51.

35 Triggs, above note 16, 638 - 639; DRC v Uganda [2005] ICJ Rep 168, [43] – [47].

36 Triggs, above note 16, 626 – 628; cf Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) (Judgment) [1980] ICJ Rep 3; Spanish Zones of Morocco Claims (Great Britain v Spain) (1925) 2 RIAA 615, 640.

37 Triggs, above note 16, 639 – 651; Hans Lauterpacht, International Law and Human Rights (Archon Books, 1968) 32.

38 Charter of the United Nations arts 39 - 45.

39 DRC v Uganda [2005] ICJ Rep 168, [100], [151] – [152]; see also SC Res 1234, UN SCOR, 54th sess, 93rd mtg, UN Doc S/RES/1234 (9 April 1999).

40 Triggs, above note 16, 638 - 639; DRC v Uganda [2005] ICJ Rep 168, [43] – [47]. 41 DRC v Uganda [2005] ICJ Rep 168, [43] – [47].

42 DRC v Uganda [2005] ICJ Rep 168, [49], [53].

43 DRC v Uganda [2005] ICJ Rep 168, [110] - [111].

44 Charter of the United Nations art 51.

45 Charter of the United Nations art 51.

46 DRC v Uganda [2005] ICJ Rep 168, [145].

47 Charter of the United Nations art 51.

48 Nicaragua Merits (1986) 76 ILR 349.

49 Nicaragua Merits (1986) 76 ILR 349, [195], [230].

50 Nicaragua Merits (1986) 76 ILR 349, [26] (Koojimans J), [16] – [18] (Elaraby J), [15] (Simma J).

51 Case Concerning Oil Platforms (Iran v US) (Merits) (2003) 42 ILM 1334.

52 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226; cf Diplomatic correspondence from US Secretary of State Daniel Webster to British Minister HS Fox regarding The Caroline, 24 April 1841.

53 DRC v Uganda [2005] ICJ Rep 168, [147].

54 Case Concerning Oil Platforms (Iran v US) (Merits) (2003) 42 ILM 1334.

55 D W Bowett, Self-defence in International Law (Manchester University Press, 1958) 191 – 192; R Higgins, Problems and Process: International Law and How We Use It (Clarendon Press, 1994) 242 – 243.

56 L Henkin, How Nations Behave: Law and Foreign Polciy (Columbia University Press, 2nd ed, 1979) 142.

57 SC Res 487 (1981), SCOR 36th yr, Resolutions and Decisions, 10.

58 SC Res 242 (1967), SCOR 22nd yr, Resolutions and Decisions, 8.

59 Triggs, above note 16, 618 – 619.

60 Triggs, above note 16, 619.

61 Case Concerning Oil Platforms (Iran v US) (Merits) (2003) 42 ILM 1334.

62 SC Res 568 (1984) SCOR, 40th yr, Resolutions and Decisions, 20; Triggs, above note 16, 619. 63 Nicaragua Merits (1986) 76 ILR 349; Triggs, above note 16, 619.

64 Nicaragua Merits (1986) 76 ILR 349; Triggs, above note 16, 625.

65 Nicaragua Merits (1986) 76 ILR 349.

66 US Diplomatic and Consular Staff in Tehran Case (United States v Iran) (1980) ICJ Reports 3.

67 United Nations: Security Council Debate and Draft Resolutions Concerning the Operation to Rescue Hijacked Hostages at the. Entebbe Airport (1976) 15 ILM 1224.

68 ‘Contemporary Practice of the United States Relating to International Law’ (1986) 80 AYIL 612, 632.

69 Spanish Zone of Morocco Claims (1923) 2 RIAA 615.

70 Triggs, above note 16, 628.

71 ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts,

72 Refer to Spanish Zone of Morocco Claims 2 RIAA 615 (1923).

73 Gab�íkovo-Nagyamaros Project (Hungary/Slovakia), ICJ Reports 1997, 7.

74 ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts

75 Rainbow Warrior Arbitration (1982) 82 ILR 499, 551.

76 Home Missionary Society (1920) 6 RIAA 42. 77 Corfu Channel (1949) 16 ILR 155.

78 Neer (1926) 4 RIAA 60.

79 Caire (1929) 5 RIAA 516.

80 Wouters, P. (2005). Water Security: What Role for International Water Law? In F. Dodde (Ed.), Human and Environmental Security: An Agenda for Change. London: Earthscan Publications Limited, 166.

81 Wouters, above note 80, 167.

82 Wouters, above note 80, 168.

83 Wouters, above note 80, 174.

84 Wouters, above note 80, 175.

85 World Health Organisation (2008). What are the International Health Regulations. Online Q&A, 10 April 2008.

86 World Health Organisation (2013). International Health Regulations: Ports, airports and ground crossings, Online.