Bughartz v.

Switzerland

Facts: Applicants, as Swiss nationals were married in Germany. Mrs.Burghartz has German citizenship also. In accordance with
German law, they chose the wife’s surname, “Burghartz”, as their family name. The husband availed himself of his right to put
his own surname in front of that and thus call himself “SchnyderBurghartz”. The Swiss registry recorded “Schnyder” as their
joint surname, so the couple applied to substitute “Burghartz” as the family surname and “SchnyderBurghartz” as the husband’s
surname. Their application was turned down.

Issue: Can the wife’s surname (Burghartz) be used as a family name? And can the husband avail himself of his right to put his
own surname in front of that of his wife’s?

Held: Both in the affirmative. There was discrimination on the ground of sex. The advancement of equality of sexes today is a
goal of the member states of the council of Europe. Very weighty reasons would have to be put forward before there can be a
difference in the treatment on the sole ground of sex.

Basis:
•Swiss Federal Constitution: Men and women shall have equal rights.
•Swiss Civil Code: Engaged couples shall be authorized, if they so request and if they prove a legitimate interest to bear the
wife’s surname as the family name..
•Prohibition on discrimination: The enjoyment of the rights and freedoms shall be secured without discrimination on any ground
such as sex, race…

Pretty v. United Kingdom

Facts: The applicant was dying of a neuron disease. She was paralyzed but could make decisions. She wanted to die to be spared
of suffering but could not do it by herself. She thus wanted her husband to help her commit suicide. However, it was a crime to
assist another to commit suicide under the British laws and so she requested that her husband be free from prosecution if he helped
her. Her request was refused. She argued that not being able to die in dignity, there was an infringement ofArticle 2 (right to life),
Article 3 (prohibition of torture and degrading treatment), Article 9 (freedom of thought, conscience and religion) and Article 14
(non-discrimination).

Ruling: The ECHR found no such violation of her rights. The Court emphasised that under the Convention, discrimination may
entail equal treatment of those in different conditions, but also reiterated that member states have a margin of appreciation in their
application of the convention. In this case, the Court found the Government had reasonable justification for not creating different
legal regimes concerning assisted suicide for those physically able and those physically unable due to the risk of abuse and
undermining of the protection of life safeguarded by the 1961 Suicide Act. For these reasons, the Court unanimously found no
violation of Article 14 of the Convention, and no violation of Articles 2, 3, 8 and 9.

Piandong, Morallos and Bulan vs. The Philippines:

Facts: The Messrs and petitioners were convicted of robbery with homicide and sentenced to death by the RTC of Caloocan City. SC
denied appeal .Further motions for reconsideration were denied .After the execution had been scheduled for 6 April 1999, the Office
of the President, on 5 April 1999, granted a three month reprieve of execution. No clemency was however granted and counsel
presented a communication to the Committee under the Optional Protocol. On 23 June 1999, the Committee, acting through its Special
Rapporteur for New Communications, transmitted the communication to the State party with a request to provide information and
observation sin respect of both admissibility and merits of the claims, in accordance with rule 91, paragraph 2, of the Committee's
rules of procedure. The State party was also requested, under rule 86 of the Committee's rules of procedure, not to carry out the death
sentence against Messrs and petitioners, while their case was under consideration by the Committee. On 7 July 1999, the Committee
was informed by counsel that a warrant for execution of Messrs and petitioners on 8 July 1999 had been issued. After having
contacted the State party's representative to theUnited Nations Office at Geneva, the Committee was informed that the executions
would go ahead as scheduled,despite the Committee's request under rule 86, since the State party was of the opinion that Messrs.
Piandiong, Morallos and Bulan had received a fair trial.
Issue: WON the state committed grave breach of its obligations under the Optional Protocol to the international covenant on civil and
political rights by putting the alleged victims to death before the Human Rights Committess had concuded the consideration of the
communication?

Held: Yes. It is inexcusable for the state to proceed to execute the 3 convicts after the committee has acted under its rule 86 to request
that the state party refrain from doings so

I. Re: grant of pardon presupposes that the decision of the SC is valid and the president is merely exercising the virtue of
mercy
There is nothing in the Protocol that restricts the right of an alleged victim of a violation of his rights under the covenant
from submitting a communication after a request for clemency or pardon has been rejected. The state party may not
unilaterally impose such a condition that limits both the competence the committee and the right of the alleged victims to
submit communications

II. As to finding of facts of the local courts

It is generally for the courts of State-parties, and not or the committee, to evaluate the facts and evidence in a particular
case and to interpret the relevant legislation

III. As to the re-introduction of the death penalty in the Philippines violates of is not in compliance wth ICCPR
The committee cannot address this since neither counsel nor the state party has made submissions in this respect

Kosiek vs. Germany

Facts: Mr. Rolf Kosiek, is a German National. In 1972, the applicant applied for a vacant post as lecturer at Nürtingen Technical
College After his interview, he wrote to the principal of Nürtingen Technical College assuring him that he would, if appointed, keep his
professional duties and private political commitment entirely separate and would not misuse his position as a teacher for political ends;
he added that he had no intention of appearing in public in Nürtingen or the surrounding area as a party militant - during the election
campaign for the Bundestag, for example.
The Ministry appointed him as a lecturer (with the status of probationary civil servant with effect from 1 September 1972. The
decision was taken by the Minister himself who, according to the Government, had known the applicant as a parliamentarian and had
no doubts whatever about his loyalty to the Constitution. The Land Civil Servants Act, in its version of 27 May 1971, requires all
candidates for civil-service posts - whether temporary or permanent - to give "a guarantee that they will consistently uphold the free
democratic constitutional system within the meaning of the Basic Law" By virtue of section 64(2) of the Act, civil servants shall
undertake to bear witness to the said system by their every word and deed and to uphold it.
After examining whether the legal conditions for tenure were fulfilled, the Ministry replied that Mr. Kosiek’s attitude and political
activities had given rise to doubts concerning his loyalty to the Constitution and that he might even have to be dismissed. On 28 February,
the Ministry gave him notice of dismissal with effect from 30 June

Issue: WON his dismissal contravened Article 10 of the Convention?

Held: The European Court of Human Rights held that there had been no violation of Article 10 (freedom of expression) of the
European Convention on Human Rights. It found that, in refusing the applicant’s access to the civil service, the responsible Ministry
of the Land took account of his opinions and activities merely in order to determine whether he had proved himself during his
probationary period and whether he possessed one of the necessary personal qualifications for the post in question.

Johnston vs. Ireland

The applicants were an unmarried couple who could not marry, and so legitimate their daughter, the third applicant, because the Irish
Constitution did not permit divorce. They relied on article 14 in conjunction with article 8, arguing that they had been discriminated
against on grounds of their limited financial means, since (had they been better off) they could have obtained a divorce by the
expedient of a spell of residence outside the Republic.

Held: The complaint was rejected in short measure: ‘Article 14 safeguards persons who are ‘placed in analogous situations’ against
discriminatory differences of treatment in the exercise of the rights and freedoms recognised by the Convention. The court notes that
under the general Irish rules of private international law foreign divorces will be recognised in Ireland only if they have been obtained
by persons domiciled abroad. It does not find it to have been established that these rules are departed from in practice. In its view, the
situations of such persons and of the first and second applicants cannot be regarded as analogous.’

3.) Human Rights as Customary International Law

a) Federal Republic of Germany v Netherlands proceedings joined with Federal Republic of

Germany v Denmark (North Sea Continental Shelf Case)
26 April 1968

Facts:

The waters of the North Sea were shallow, the whole seabed, except for the Norwegian Trough, consisting of continental shelf at a depth of less than 200
metres. Most of it had already been delimited between the coastal States concerned. The Federal Republic and Denmark and the Netherlands, respectively,
had, however, been unable to agree on the prolongation of the partial boundaries referred to above, mainly because Denmark and the Netherlands had wished
this prolongation to be effected on the basis of the equidistance principle, that the Federal Republic was in any event, and apart from the Geneva Convention,
bound to accept delimitation on an equidistance basis, since the use of that method was a rule of general or customary international law, automatically binding
on the Federal Republic, whereas the Federal Republic had considered that it would unduly curtail what the Federal Republic believed should be its proper
share of continental shelf area, on the basis of proportionality to the length of its North Sea coastline.

Issue: Whether the equidistance principle was a rule of customary international law

Held:

The Equidistance Principle Not a Rule of Customary International Law

In order for this process to occur it was necessary that Article 6 of the 1958 Geneva Convention on the Continental Shelf should, at all events potentially, be
of a norm-creating character. Article 6 was so framed, however, as to put the obligation to make use of the equidistance method after a primary obligation to
effect delimitation by agreement. The faculty of making reservations to Article 6 must all raise doubts as to the potentially norm-creating character of that
Article.
Furthermore, while a very widespread and representative participation in a convention might show that a conventional rule had become a general rule of
international law, in the present case the number of ratifications and accessions so far was hardly sufficient. As regards the time element, although the passage
of only a short period of time was not necessarily a bar to the formation of a new rule of customary international law on the basis of what was originally a
purely conventional rule, it was indispensable that State practice during that period, including that of States whose interests were specially affected, should
have been both extensive and virtually uniform in the sense of the provision invoked and should have occurred in such a way as to show a general recognition
that a rule of law was involved.

Not only must the acts concerned amount to a settled practice, but they must also be carried out in such a way as to be evidence of a belief that this practice is
rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very
notion of the opinio juris sivenecessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The
frequency, or even habitual character of the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol, which
are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.

The Court consequently concluded that the Geneva Convention was not in its origins or inception declaratory of a mandatory rule of customary international
law enjoining the use of the equidistance principle, its subsequent effect had not been constitutive of such a rule, and State practice up to date had equally
been insufficient for the purpose.

b) Nicaragua v United States of America of 27 June 1986

Facts:
In July 1979 the Government of President Somoza collapsed.The new government began to meet armed opposition from supporters of the former
Somoza Government and ex-members of the National Guard. The US – initially supportive of the new government – changed its attitude when,
according to the United States, it found that Nicaragua was providing logistical support and weapons to guerrillas in El Salvador. In April 1981 it
terminated United States aid to Nicaragua and in September 1981, according to Nicaragua, the United States “decided to plan and undertake activities
directed against Nicaragua”.
Initial US support to the groups fighting against the Nicaraguan Government (called “contras”) was covert. Later, the United States officially
acknowledged its support. Nicaragua also alleged that the United States is effectively in control of the contras, the United States devised their
strategy and directed their tactics and that they were paid for and directly controlled by United States personal. Nicaragua also alleged that some
attacks were carried out by United States military – with the aim to overthrow the Government of Nicaragua. Attacks against Nicaragua included the
mining of Nicaraguan ports and attacks on ports, oil installations and a naval base. Nicaragua alleged that aircrafts belonging to the United
States flew over Nicaraguan territory to gather intelligence, supply to the contras in the field and to intimidate the population.

Issue:Do the provisions common to the Geneva Conventions apply to international armed conflicts as customary law?
Held:

The conduct of the United States may be judged according to the fundamental general principles of humanitarian law; in its view, the Geneva
Conventions are in some respects a development, and in other respects no more than the expression, of such principles. It is significant in this respect
that, according to the terms of the Conventions, the denunciation of one of them “shall in no way impair the obligations which the Parties to the
conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usage established among civilized
peoples, from the laws of humanity and the dictates of the public conscience”.

The Court considers that there is an obligation on the United States Government, in the terms of Article 1 of the Geneva Conventions, to “respect”
the Conventions and even “to ensure respect” for them “in all circumstances”, since such an obligation does not derive only from the Conventions
themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression. The United States is thus
under an obligation not to encourage persons or groups engaged in the conflict in Nicaragua to act in violation of the provisions of Article 3 common
to the four 1949 Geneva Conventions.

Article 3 defines certain rules to be applied in the armed conflicts of a non-international character. There is no doubt that, in the event of international
armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international
conflicts; and they are rules which, in the Court’s opinion, reflect what the Court in 1949 called “elementary considerations of humanity”. The Court
may therefore find them applicable to the present dispute, and is thus not required to decide what role the United States multilateral treaty reservation
might otherwise play in regard to the treaties in question.

[For digest purposes on discussion relating to human rights as customary laws, you can probably stop here; however, you may read on for the human
rights violations etc]

The Four Geneva Conventions:

Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.
Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August
1949.
Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.

Alleged violations discussed:

• The Court has noted that the United States did not issue any warning or notification of the presence of the mines which had been laid
in or near the ports of Nicaragua. Yet even in time of war, the Convention relative to the laying of automatic submarine contact mines of
October 18, 1907 (the Hague Convention No. VIII) provides that “every possible precaution must be taken for the security of peaceful
shipping” and belligerents are bound“to notify the danger zones as soon as military exigencies permit, by a notice addressed to ship
owners, which must also be communicated to the Governments through the diplomatic channel” (Art. 3).
Neutral Powers which lay mines off their own coasts must issue a similar notification, in advance (Art. 4). It has already been made clear
above that in peacetime for one State to lay mines in the internal or territorial water of another is an unlawful act; but in addition, if a State
lays mines in any waters whatever in which the vessels of another State have rights of access or passage, and fails to give any warning or
notification whatsoever, in disregard of the security of peaceful shipping,it commits a breach of the principles of humanitarian law
underlying the specific provisions of Convention No. VIII of 1907. Those principles were expressed by the Court in the Corfu Channelcase
as follows“certain general and well recognized principles, namely: elementary considerations of humanity, even more exacting in peace
than in war”

• As to the question of the application of humanitarian law to the activities of the United States, except as regards the mines, Nicaragua has
not however attributed any breach of humanitarian law to either United States personnel or the “UCLAs” [”Unilaterally
Controlled Latino Assets” acronym used by the CIA for Latin American citizens, paid by, and acting under the direct instructions
of, United States military or intelligence personnel], as distinct from thecontras.

The Applicant has claimed that acts perpetrated by the contras constitute breaches of the “fundamental norms protecting human rights”; it
has not raised the question of the law applicable in the event of conflict such as that between the contras and the established Government.
In effect, Nicaragua is accusing the contras of violations both of the law of human rights and humanitarian law, and is attributing
responsibility for these acts to the United States. The Court has however found that this submission of Nicaragua cannot be upheld.

The United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping of
the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself,
on the basis of the evidence in the possession of the Court, for the purpose of attributing to the United States the acts committed by
the contras in the course of their military or paramilitary operations in Nicaragua. All the forms of United States participation mentioned
above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves
mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and
humanitarian law alleged by the applicant State. Such acts could well be committed by members of the contras without the control of the
United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that State had
effective control of the military or paramilitary operations in the course of which the alleged violations were committed.

• However, the Court has found the United States responsible for the publication and dissemination of the manual on “Psychological
Operations in Guerrilla Warfare”.
 The Court has also found that general principles of humanitarian law include a particular prohibition, accepted by States, and extending to
activities which occur in the context of armed conflicts, whether international in character or not. By virtue of such general principles, the
United States is bound to refrain from encouragement of persons or groups engaged in the conflict in Nicaragua to commit violations of
Article 3 which is common to all four Geneva Conventions of August 12, 1949. The question here does not of course relate to the definition
of the circumstances in which one State may be regarded as responsible for acts carried out by another State, which probably do not include
the possibility of incitement. The Court takes note of the advice given in the manual on psychological operations to “neutralize” certain
“carefully selected and planned targets”, including judges, police officers, State Security officials, etc., after the local population have been
gathered in order to “take part in the act and formulate accusations against the oppressor”. In view of the Court, this must be regarded as
contrary to the prohibition in Article 3 of the Geneva Conventions, with respect to non-combatants, of

“the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court,
affording all the judicial guarantees which are recognized as indispensable by civilized peoples”

and probably also of the prohibition of “violence to life and person, in particular murder to all kinds, ... .”

When considering whether the publication of such a manual, encouraging the commission of acts contrary to general principles of
humanitarian law, is unlawful, it is material to consider whether that encouragement was offered to persons in circumstances where the
commission of such acts was likely or foreseeable. The Court has however found [...] that at the relevant time those responsible for the
issue of the manual were aware of, at the least, allegations that the behaviour of the contras in the field was not consistent with
humanitarian law; it was in fact even claimed by the CIA that the purpose of the manual was to “moderate” such behaviour. The
publication and dissemination of a manual in fact containing the advice quoted above must therefore be regarded as an encouragement,
which was likely to be effective, to commit acts contrary to general principles of international humanitarian law reflected in treaties.

Humanitarian assistance (principle of non-intervention)

The Court therefore finds that the support given by the United States, up to the end of September 1984, to the military and paramilitary activities of
the contras in Nicaragua, by financial support, training, supply of weapons, intelligence and logistic support, constitutes a clear breach of the
principle of non-intervention. The Court has however taken note that, with effect from the beginning of the United States governmental financial
year 1985, namely 1 October 1984, the United States Congress has restricted the use of the funds appropriated for assistance to the contras to
“humanitarian assistance” [...]. There can be no doubt that the provision of strictly humanitarian aid to persons or forces in another country, whatever
their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law. The
characteristics of such aid were indicated in the first and second of the fundamental principles declared by the Twentieth International Conference of
the Red Cross, that

“The Red Cross, born of desire to bring assistance without discrimination to the wounded on the battlefield, endeavours – in its international and
national capacity – to prevent and alleviate human suffering wherever it may be found. Its purpose is to protect life and health and to ensure respect
for the human being. It promotes mutual understanding, friendship, co-operation and lasting peace amongst all peoples”

and that

“It makes no discrimination as to nationality, race, religious beliefs, class or political opinions. It endeavours only to relieve suffering, giving priority
to the most urgent cases of distress.”

The United States legislation which limited aid to the contras to humanitarian assistance however also defined what was meant by such assistance,
namely:

“the provision of food, clothing, medicine, and other humanitarian assistance, and it does not include the provision of weapons, weapons systems,
ammunition, or other equipment, vehicles, or material which can be used to inflict serious bodily harm or death” [...].

It is also to be noted that, while the United States Congress has directed that the CIA and Department of Defense are not to administer any of the
funds voted, it was understood that intelligence information might be “shared” with the contras. Since the Court has no information as to the
interpretation in fact given to the Congress decision, or as to whether intelligence information is in fact still being supplied to the contras, it will limit
itself to a declaration as to how the law applies in this respect. An essential feature of truly humanitarian aid is that it is given “without
discrimination” of any kind. In view of the Court, if the provision of “humanitarian assistance” is to escape condemnation as an intervention in the
internal affairs of Nicaragua, not only must it be limited to the purposes hallowed in the practice of the Red Cross, namely “to prevent and alleviate
human suffering”, and “to protect life and health and to ensure respect for the human being”; it must also, and above all, be given without
discrimination to all in need in Nicaragua, not merely to the contras and their dependants.

1) Kosiek vs Germany (ECHR App. No. 9704/82, 1986)

Facts: Rolf Kosiek, German, worked in the First Institute of Physics at the University of Heidelberg, first as an employee and then as a research
assistant with the status of temporary civil servant. Shortly after taking up his duties, he signed a statement certifying that he had been given
notice of the Federal Government’s decision on anti-democratic activities by civil servants pursuant to the decree issued by the Land
Government of Baden-Württemberg, whose first paragraph read:
 "It is taken for granted that candidates for civil-service posts shall not belong to any organisation which sets out to abolish
the free democratic constitutional system or support such tendencies in any other way, directly or indirectly. If necessary,
appointment or employment should be regarded as having been brought about by wilful deceit."

The third paragraph stated that it was for the authorities concerned to take "the necessary action (disciplinary proceedings, dismissal)"
"against staff who fail in their duty of loyalty.”

Mr. Kosiek joined the National Democratic Party of Germany (NPD). He left the NPD on 9 December 1980; he claims that he had already
informed the Minister of Education and Culture, in January 1974, that he intended to leave the party as soon as he was given tenure. He was
an NPD member of the Baden-Württemberg Parliament (Landtag) from 1 June 1968 to 31 May 1972, and stood for the party in the Federal
elections in the autumn of 1972, when it failed to secure any seats in the Bundestag.

Mr. Kosiek set out his political views in two books. The first of these, published in September 1972 and reprinted several times, is entitled
"Marxismus? Ein Aberglaube! Naturwissenschaft widerlegt die geistigen Grundlagen von Marx und Lenin" ("Marxism? A superstition! Science
disproves the intellectual foundations of Marx and Lenin"); the second, published in 1975, is entitled "Das Volk in seiner Wirklichkeit -
Naturwissenschaften und Leben bestätigen den Volksbegriff" ("The People as it really is - Science and Life confirm the Concept of the Nation").

In 1970, he applied for a position as lecturer at the State Engineering College. He passed a test there, and the college asked the Ministry of
Education and Culture to appoint him. However, he was not appointed thereat. A year later, having learned through the press that his political
activities in the NPD had been the main reason for his failure to secure the appointment, Mr. Kosiek went to court to compel the Land to
employ him. His case did not prosper. The Court of Appeal held that he did not afford the guarantee required that he would at all times
uphold the free democratic constitutional system within the meaning of the Basic Law. It based its conclusions mainly on his book "Das Volk
in seiner Wirklichkeit."

In 1972, the applicant applied for a vacant post as lecturer at Nürtingen Technical College. With two of the other seven candidates he took a
test and was interviewed. The Lecturers’ Council recommended the Ministry of Education and Culture to appoint him. On the same day, he
was interviewed on the subject of his past activities as a member of the Land Parliament and his future political intentions. Immediately
afterwards, he wrote to the principal of the college assuring him that he would, if appointed, keep his professional duties and private political
commitment entirely separate and would not misuse his position as a teacher for political ends; he added that he had no intention of
appearing in public in Nürtingen or the surrounding area as a party militant - during the election campaign for the Bundestag, for example.

The Ministry appointed him as a lecturer with the status of probationary civil servant. Eventually, the principal of the College requested that
Mr. Kosiek be given tenure for life. After examining whether the legal conditions for tenure were fulfilled, the Ministry replied that Mr.
Kosiek’s attitude and political activities had given rise to doubts concerning his loyalty to the Constitution and that he might even have to be
dismissed.

The applicant was interviewed on the subject of his attitude to the Constitution. Later, the Ministry gave him notice of dismissal, citing, inter
alia, section 38(2) of the Land Civil Servants Act, which provides for dismissal of a probationary civil servant where he has not proved himself
during the probationary period, and the decree declared him unsuitable for the post; as a prominent NPD official, he had approved of NPD
aims which were inimical to the Constitution and had thus shown that he did not support the free democratic constitutional system by his
every word and deed and was not prepared to uphold it. According to the Ministry, the NPD behaved in a manner hostile to the Constitution
since, among other things, it rejected the idea of international understanding, human rights and the existing democratic order; specifically,
it preached extreme nationalism and a racist ideology, and wished to abolish parliamentary government and the multi-party system.

On 8 March 1974, the applicant lodged an objection against his dismissal. This was rejected by the Ministry. He instituted proceedings before
the Stuttgart Administrative Court on 10 June.

He asserted that it was common knowledge that he had personally and actively upheld the free democratic system. Since becoming a teacher
he had resigned from several of his NPD posts, including those of chairman of the Rhine-Neckar branch, district agent for North Baden and
member of the Federal Executive Committee responsible for university matters. In addition, he had deliberately restricted his political
activities in the Nürtingen-Esslingen area and had not appeared there in public. His membership of a party with aims allegedly inimical to the
Constitution was no reason for dismissing him. The Technical College and the Staff Committee had supported him and had testified to his
personal and professional abilities. Finally, the probationary period was now over: the period which he had previously spent as a temporary
civil servant should be added to the two years and seven months which he had spent as a probationary civil servant.

The Court held that Mr. Kosiek had failed to dispel the suspicion that he approved the NPD line. On the contrary, he had identified himself
with it by his many militant activities. These, and the personal views he had expressed in his book "Das Volk in seiner Wirklichkeit", cast
serious doubts on his loyalty to the Constitution.

Article 5(3) of the Basic Law, which was relied on by the applicant and protected freedom of art, science, research and teaching, did not lead
to any different conclusion. Academics had a large measure of professional independence but that did not absolve them from their duty of
loyalty to the Constitution. Notwithstanding the first sentence of Article 5(3), they remained civil servants, and a university lecturer with the
status of probationary civil servant could be dismissed for unsuitability.
The Federal Administrative Court found against him been prompted, as the Court of Appeal had held, by statements in the applicant’s book
"Das Volk in seiner Wirklichkeit" but had been corroborated and strengthened by them. The Constitutional Court decided on 31 July 1981
not to entertain the constitutional complaint, on the ground that it had insufficient prospects of success.

Citing its own case-law, it recalled firstly that the duty of loyalty to the State and the Constitution was one of the traditional principles of the
civil service. Anyone who was not clearly prepared at all times to uphold the free democratic constitutional system was thus unfit to hold a
civil-service post. Any probationary civil servant who could not be relied upon to do so must therefore be dismissed on grounds of personal
unsuitability. In this connection, membership of a party whose aims were incompatible with the free democratic system was a relevant
consideration.

In the ECHR level, Mr. Kosiek claimed that his dismissal contravened Article 10 of the Convention:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from
requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection
of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the
authority and impartiality of the judiciary."

The Government contended that this provision was not material in the circumstances; in their submission, the present case concerned the
right - not secured in the Convention - of access to a post in the civil service. This contention did not find favour with the Commission.

The Universal Declaration of Human Rights of 10 December 1948 and the International Covenant on Civil and Political Rights of 16 December
1966 provide, respectively, that "everyone has the right of equal access to public service in his country" (Article 21 para. 2) and that "every
citizen shall have the right and the opportunity ... to have access, on general terms of equality, to public service in his country" (Article 25).
In contrast, neither the European Convention nor any of its Protocols sets forth any such right. Moreover, as the Government rightly pointed
out, the signatory States deliberately did not include such a right: the drafting history of Protocols Nos. 4 and 7 shows this unequivocally. In
particular, the initial versions of Protocol No. 7 contained a provision similar to Article 21 para. 2 of the Universal Declaration and Article 25
of the International Covenant; this clause was subsequently deleted. This is not therefore a chance omission from the European instruments;
as the Preamble to the Convention states, they are designed to ensure the collective enforcement of "certain" of the rights stated in the
Universal Declaration.

While this background makes it clear that the Contracting States did not want to commit themselves to the recognition in the Convention or
its Protocols of a right of recruitment to the civil service, it does not follow that in other respects civil servants fall outside the scope of the
Convention. In Articles 1 and 14, the Convention stipulates that "everyone within <the> jurisdiction" of the Contracting States must enjoy the
rights and freedoms in Section I "without discrimination on any ground." And Article 11 para. 2 in fine, which allows States to impose special
restrictions on the exercise of the freedoms of assembly and association by "members of the armed forces, of the police or of the
administration of the State", confirms that as a general rule the guarantees in the Convention extend to civil servants.

It is not for the European Court to review the correctness of the previous courts’ findings.

Access to the civil service lies at the heart of the issue submitted to the Court. In refusing Mr. Kosiek such access - belated though the decision
was - the responsible Ministry of the Land took account of his opinions and activities merely in order to determine whether he had proved
himself during his probationary period and whether he possessed one of the necessary personal qualifications for the post in question.

Held: By sixteen votes to one that there has been no breach of Article 10.

2) Johnston and others vs Ireland (ECHR App. No. 9697/82, 1986)

Facts:
The applicants are Roy H.W. Johnston (father), Janice Williams-Johnston (mother), and Nessa Doreen Williams-Johnston (daughter). Roy
married a Miss M in 1952 in a Church of Ireland ceremony. Three children were born of this marriage. In 1965, it became clear to both parties
that the marriage had irretrievably broken down and they decided to live separately at different levels in the family house. Several years later
both of them, with the other’s knowledge and consent, formed relationships and began to live with third parties. By mutual agreement, the
two couples resided in self-contained flats in the house until 1976, when Miss M moved elsewhere. Since 1971, Roy and Janice lived together
and in 1978, Nessa was born. Roy consented to his name being included in the Register of Births as the father. Under the Constitution of
Ireland, Roy is unable to obtain, in Ireland, a dissolution of his marriage to enable him to marry Janice. He has taken the following steps to
regularise his relationship with her and with his wife and to make proper provision for his dependents.
 (a) With his wife’s consent, he has consulted solicitors in Dublin and in London as to the possibility of obtaining a dissolution of the
marriage outside Ireland. His London solicitors advised that, in the absence of residence within the jurisdiction of the English courts,
he would not be able to do so in England, and the matter has therefore not been pursued.
(b) On 19 September 1982, he concluded a formal separation agreement with his wife, recording an agreement implemented some
years earlier. She received a lump-sum of IR£8,800 and provision was made for maintenance of the remaining dependent child of
the marriage. The parties also mutually renounced their succession rights over each other’s estates.
(c) He has made a will leaving his house to Janice for life with remainder over to his four children as tenants in common, one half of
the residue of his estate to Janice, and the other half to his four children in equal shares.
(d) He has supported Nessa throughout her life and has acted in all respects as a caring father.
(e) He contributed towards the maintenance of his wife until the conclusion of the aforementioned separation agreement and has
supported the three children of his marriage during their dependency.
(f) Janice has been nominated as beneficiary under the pension scheme attached to his employment.
(g) He has taken out health insurance in the names of Janice and Nessa, as members of his family.

Janice, who is largely dependent on Roy for her support and maintenance, is concerned at the lack of security provided by her present legal
status, in particular the absence of any legal right to be maintained by him and of any potential rights of succession in the event of intestacy.
As is permitted by law, she has adopted the Roy’s surname, which she uses amongst friends and neighbours, but for business purposes
continues to use the name Williams. According to her, she has felt inhibited about telling employers of her domestic circumstances and
although she would like to become an Irish citizen by naturalisation, she has been reluctant to make an application, not wishing to put those
circumstances in issue.

Nessa has, under Irish law, the legal situation of an illegitimate child and her parents are concerned at the lack of any means by which she
can, even with their consent, be recognised as their child with full rights of support and succession in relation to them. They are also concerned
about the possibility of a stigma attaching to her by virtue of her legal situation, especially when she is attending school.

Held:
FOR THESE REASONS, THE COURT

1. Rejects unanimously the Government’s preliminary pleas;

2. Holds by sixteen votes to one that the absence of provision for divorce under Irish law and the resultant inability of the first and
second applicants to marry each other do not give rise to a violation of Article 8 or Article 12 of the Convention;

Article 12. Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the
exercise of this right.

Article 8. (1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no
interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the rights and freedoms of others."

3. Holds by sixteen votes to one that the first and second applicants are not victims of discrimination, contrary to Article 14 taken in
conjunction with Article 8, by reason of the fact that certain foreign divorces may be recognised by the law of Ireland;

Article 14. The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such
as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth
or other status.

4. Holds by sixteen votes to one that Article 9 is not applicable in the present case;

(Art 9 guarantees to everyone the "right to freedom of thought, conscience and religion).

5. Holds unanimously that, as regards the other aspects of their own status under Irish law complained of by the first and second
applicants, there is no violation of Article 8;

6. Holds unanimously that the legal situation of the third applicant under Irish law gives rise to a violation of Article 8 as regards all
three applicants;

As is recorded in the Preamble to the European Convention of 15 October 1975 on the Legal Status of Children born out of Wedlock, "in a
great number of member States of the Council of Europe efforts have been, or are being, made to improve the legal status of children born
out of wedlock by reducing the differences between their legal status and that of children born in wedlock which are to the legal or social
disadvantage of the former". Furthermore, in Ireland itself this trend is reflected in the Status of Children Bill recently laid before Parliament.
In its consideration of this part of the present case, the Court cannot but be influenced by these developments. As it observed in its above-
mentioned Marckx judgment, "respect" for family life, understood as including the ties between near relatives, implies an obligation for the
State to act in a manner calculated to allow these ties to develop normally. And in the present case the normal development of the natural
family ties between the first and second applicants and their daughter requires, in the Court’s opinion, that she should be placed, legally and
socially, in a position akin to that of a legitimate child.

Examination of the third applicant’s present legal situation, seen as a whole, reveals, however, that it differs considerably from that of a
legitimate child; in addition, it has not been shown that there are any means available to her or her parents to eliminate or reduce the
differences. Having regard to the particular circumstances of this case and notwithstanding the wide margin of appreciation enjoyed by
Ireland in this area, the absence of an appropriate legal regime reflecting the third applicant’s natural family ties amounts to a failure to
respect her family life.

Moreover, the close and intimate relationship between the third applicant and her parents is such that there is of necessity also a resultant
failure to respect the family life of each of the latter. Contrary to the Government’s suggestion, this finding does not amount, in an indirect
way, to a conclusion that the first applicant should be entitled to divorce and re-marry; this is demonstrated by the fact that in Ireland itself
it is proposed to improve the legal situation of illegitimate children, whilst maintaining the constitutional prohibition on divorce.

7. Holds by sixteen votes to one that it is not necessary to examine the third applicant’s allegation that she is a victim of discrimination,
contrary to Article 14 taken in conjunction with Article 8 (art. 14+8), by reason of the disabilities to which she is subject under Irish
succession law;

8. Holds unanimously that Ireland is to pay to the three applicants together, in respect of legal costs and expenses referable to the
proceedings before the Commission and the Court, the sum of twelve thousand Irish pounds (IR£12,000), together with any value
added tax that may be chargeable;

ICJ ADVISORY OPINION of 1951 ON RESERVATIONS TO THE CONVENTION OF GENOCIDE

FACTS:

The convention on Genocide was unanimously adopted by the United Nations in 1951. Several states made reservations to one or more of its provisions.
An opinion as to whether a party could express reservations and still be considered a signatory was laid before the International Court of Justice.

ISSUES:

"I. Can the reserving State be regarded as being a party to the Convention while still maintaining its reservation if the reservation is objected to by one
or more of the parties to the Convention but not by others?

"II. If the answer to question I is in the affirmative, what is the effect of the reservation as between the reserving State and:
(a) The parties which object to the reservation?
(b) Those which accept it?

"III. What would be the legal effect as regards the answer to question I if an objection to a reservation is made:
(a) By a signatory which has not yet ratified?
(b) By a State entitled to sign or accede but which has not yet done so?"

HELD:

On Question I:

A State which has made and maintained a reservation which has been objected to by one or more of the parties to the Convention but not by others,
can be regarded as being a party to the Convention if the reservation is compatible with the object and purpose of the Convention; otherwise, that State
cannot be regarded as being a party to the Convention.

On Question II:

(a) if a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of the Convention, it can in
fact consider that the reserving State is not a party to the Convention;

(b) if, on the other hand, a party accept the reservation as being compatible with the object and purpose of the Convention, it can in fact consider that
the reserving State is a party to the Convention;

On Question III:
(a) an objection to a reservation made by a signatory State which has not yet ratified the Convention can have the legal effect indicated in the reply to
Question I only upon ratification. Until that moment it merely serves as a notice to the other State of the eventual attitude of the signatory State;

(b) an objection to a reservation made by a State which is entitled to sign or accede but which has not yet done so is without legal effect.

NOTE: ICJ did not categorically said that genocide is CIL but base on the wordings of ICJ and some authors it is a CIL.

The principles underlying the Convention are recognised by civilised nations as binding on States even without any conventional obligation. It was
intended that the Convention would be universal in scope. Its purpose is purely humanitarian and civilising. The contracting States do not have any
individual advantages or disadvantages nor interests of their own, but merely a common interest. This leads to the conclusion that the object and purpose
of the Convention imply that it was the intention of the General Assembly and of the States which adopted it, that as many States as possible should
participate. This purpose would be defeated if an objection to a minor reservation should produce complete exclusion from the Convention

United States v. Iran (ICJ Reports 1980)

Facts:
In November 4, 1974, 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.

NOTE:
In the Hostages case (US v. Iran) the International Court of Justice referred directly to the Universal Declaration of Human Rights and found in its
“principles” proof of the existence of universal human rights:

“Wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly
incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration
of Human Rights.”

The references to the Universal Declaration continued to support the claims that at least some rights had attained the quality of customary rules in other
forms. One of them was the invocation of the Declaration in the United Nations and other international fora and the references to the Declaration in
constitutions, internal legislation of states and decisions of the national courts
United Kingdom vs. Albania
Corfu Channel Case ICJ Reports 1949

Facts:
The Albanian Government has contended that the sovereignty of Albania was violated because according to them, the passage of the
British warships on October 22, 1946 was not an innocent passage. The reason advanced in support of this contention may be summed
up as follows: (1) the passage was not an ordinary passage, but a political mission; (2) the ships were maneuvering and sailing in diamond
combat formation with soldiers on board; (3) the position of the guns was not consistent with innocent passage; (4) the vessels passed
with crew at action stations; (5) the number of ships and their armament surpassed what was necessary in order to attain their object and
showed an intention to intimidate and not merely to pass; and (5) the ships had received orders to observe and report upon the coastal
defenses and this order was carried out.

The United Kingdom Government contended that the object of sending the warships through the Strait was not only to carry out a passage
for purposes of navigation, but also to test Albania’s attitude because of its use of gunfire in view of the passage. However, the Albanian
Government regarded this as unreasonable. With the passage of four warships with crews at actions stations ready to retaliate quickly if
fired upon, the intention must have been not only to test the Albania’s attitude, but at the same time to demonstrate force.

Explosions happened on October 22nd, after which the United Kingdom Government sent a note to the Albanian Government announcing
its intention to sweep the Corfu Channel shortly. However, the Albanian Government would not give its consent unless the operation in
question took place outside Albanian territorial waters. After this exchange of notes, an “Operation Retail” took place. The area swept
through this operation was in Albanian territorial waters.

Issue:
Whether or not the measures taken by the United Kingdom authorities would constitute a violation of Albania’sovereignty?

Held:
The court regarded the intervention of United Kingdom Government as a manifestation on of a policy of force, such as has, in the past,
given rise to most serious abuses and such as cannot find a place in international law. Between independent States, respect for territorial
sovereignty is an essential foundation of international relations. To ensure respect for international law, of which it is the organ, the Court
must declare that the action of the British Navy constituted a violation of Albanian sovereignty.

Portugal vs. Australia

The Case Concerning East Timor ICJ Reports 1995

Facts:
Portugal administered East Timor as a non-self-governing territory under United Nations Chapter XI. On 27th August 1975, due to
internal disturbances caused by factions calling for self-determination, Portugal withdrew from East Timor. Soon after its departure on
7th of December 1975, Indonesia invaded and occupied East Timor; and in 1976 East Timor's “People Assembly” formally sought to be
integrated into Indonesia as part of its territorial dominion. Later, on 20th of January 1978, Australia acknowledged de facto Indonesia's
annexation of East Timor which was then followed by de jure recognition in the following year.

A number of meetings between Portugal and Australia took place to resolve the issue in relation to undefined continental shelf between
Indonesia and Australian known as the 'Timor Gap'. The failure to resolve the matter through talk between the two countries resulted in
a treaty between the two countries for exploration and exploitation of natural resources around the Timor Sea seabed known as the
‘Treaty between Australia and the Republic of Indonesia on the zone of cooperation in an area between the Indonesian province of East
Timor and Northern Australia.

There arose an issue on the principle of Self-Determination which literally means the right to control one's own destiny. By virtue of the
principle of equal rights and self-determination of people enshrined in the Charter of the United Nations, all people have the right to
determine, without external interference, their political statute and to pursue their economic, social and cultural development. The
International Covenant on Civil and Political Rights, Part I, Article 1, Paragraph established that ‘All peoples have the rights of self-
determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural
development. Portugal's concern is that Australia has acted unlawfully by infringing the right of the people of East Timor to self -
determination. The argument on behalf of Portugal rises from the issue that Australia had negotiated and concluded the 1989 ‘Timor Gap
Treaty' and by commencing the performance of the Treaty, took measures under its domestic law for the application of the Treaty,
continuing negotiation with Indonesia to infringe the rights of East Timor. It maintains, in effect, that the rights which Australia allegedly
breached were rights erga omnes and that accordingly Portugal could require it, individually, to respect them regardless of whether or
not another State had conducted itself in a similarly unlawful manner.

Issue:
Whether or not there was a violation on the right of the people of East Timor to Self-Determination.
Held:
The Court rejects Portugal's additional argument that the rights which Australia allegedly breached were rights erga omnes and that
accordingly Portugal could require it, individually, to respect them regardless of whether or not another State had conducted itself in a
similarly unlawful manner.

In the Court's view, Portugal's assertion that the right of peoples to self-determination, as it evolved from the Charter and from United
Nations practice, has an erga omnes character, is irreproachable. The principle of self-determination of peoples has been recognized
by the United Nations Charter and in the jurisprudence of the Court; it is one of the essential principles of contemporary international
law. However, the Court considers that the erga omnes character of a norm and the rule of consent to jurisdiction are two different
things. Whatever the nature of the obligations invoked, the Court could not rule on the lawfulness of the conduct of a State when its
judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case.

The Court goes on to consider another argument of Portugal which, the Court observes, rests on the premise that the United Nations
resolutions, and in particular those of the Security Council, can be read as imposing an obligation on States not to recognize any
authority on the part of Indonesia over East Timor and, where the latter is concerned, to deal only with Portugal. Portugal maintains that
those resolutions would constitute "givens" on the content of which the Court would not have to decide de novo.

The Court takes note of the fact that, for the two Parties, the Territory of East Timor remains a non-self governing territory and its
people has the right to self-determination, and that the express reference to Portugal as the "administering Power" in a number of the
above-mentioned resolutions is not at issue between them. The Court finds, however, that it cannot be inferred from the sole fact that a
number of resolutions of the General Assembly and the Security Council refer to Portugal as the administering Power of East Timor that
they intended to establish an obligation on third States to treat exclusively with Portugal as regards the continental shelf of East Timor.
Without prejudice to the question whether the resolutions under discussion could be binding in nature, the Court considers as a result
that they cannot be regarded as "givens" which constitute a sufficient basis for determining the dispute between the Parties.