Kingdom of Atlantira v. Republic of Novaris – Hypothetical Judgment by JEEVA SHARUNEE DEVI A/P JESUTHAS (IJWC 2025)

INTRODUCTION

The case concerns a dispute between the Kingdom of Atlantira (“Atlantira”) and the Republic of Novaris (“Novaris”) over alleged violations of international law arising from extensive cyber-surveillance operations. Atlantira claims that Novaris infringed its sovereignty, violated the principle of non-intervention, and breached obligations under the International Covenant on Civil and Political Rights (“ICCPR”) and the Vienna Convention on Diplomatic Relations. Novaris contends that its actions were legitimate national-security operations within its domestic jurisdiction and denies that international law prohibits such intelligence-gathering measures.

The Court’s jurisdiction is founded on the Parties’ mutual acceptance of its compulsory jurisdiction under Article 36(2) of the ICJ Statute and Article 15 of the 1955 Treaty of Friendship and Cooperation, which provides for the settlement of disputes before the Court. The purpose of the judgment is to recount the circumstances of the dispute, summarize procedural history, present relevant facts, and provide a reasoned decision.

PROCEDURAL HISTORY

Atlantira filed its Application on 15 January 2025, seeking a declaration that Novaris’s cyber-surveillance programme, Project Sentinel Eye (“PSE”), violated international law. Both Parties submitted written pleadings and participated in oral hearings. Diplomatic negotiations between June and October 2024 failed to resolve the dispute. Novaris filed a preliminary objection challenging the alleged breach of sovereignty. Over four oral sessions, both Parties presented evidence, expert reports, and witness testimony on the legality of surveillance, attribution to the State, and appropriate remedies. 

The Court reviewed all submissions and finds that it has uncontested jurisdiction over the dispute, ratione materiae, ratione personae, and ratione temporis.

STATEMENT OF FACTS

Atlantira and Novaris are neighbouring Eastern Mediterranean States sharing a 520-kilometre border. Formerly part of a single political entity until 1952, they have maintained diplomatic relations since their peaceful separation. Both States are parties to the UN Charter, ICCPR, Convention against Torture, and Vienna Convention on Diplomatic Relations.

Atlantira, a constitutional monarchy of 18 million, has pursued democratic reforms and expanded civil liberties. Novaris, a republic of 25 million, has focused on technological modernization, establishing the National Digital Security Agency (“NDSA”) in 2021 for cyber-intelligence and national-security operations.

In March 2024, Atlantira discovered Novaris had conducted a covert cyber-surveillance programme, PSE, active since January 2022. Approximately 50,000 individuals, including journalists, activists, human-rights defenders, lawyers, and opposition politicians, were monitored via malware, server compromise, and third-State facilities. Data were used for profiling, social-network mapping, and political analysis, resulting in exposure, intimidation, threats, employment consequences, and forced displacement.

Diplomatic engagement between May and October 2024 failed, during which Atlantira learned its communications had been intercepted. Consequently, it recalled its ambassador, suspended cooperation, and filed the present Application. Both Parties accept the Court’s jurisdiction, which is uncontested.

ISSUES FOR DETERMINATION

From the pleadings and submissions of the Parties, the Court identifies six primary issues for determination:

1. Whether Novaris’s surveillance operations constituted a violation of the sovereignty of Atlantira and the principle of non-intervention;
2. Whether the surveillance infringed the right to privacy under Article 17 of the ICCPR, and whether any such interference was lawful, necessary, and proportionate;
3. Whether the surveillance violated the freedom of expression and press freedom under Article 19 of the ICCPR;
4. Whether the monitoring of attorney-client communications violated the fair-trial guarantees under Article 14 of the ICCPR;
5. Whether the actions of the NDSA are attributable to the State of Novaris; and
6. What forms of reparation, if any, are required under international law.

SUMMARY OF THE PARTIES’ ARGUMENTS

• Atlantira

Atlantira contends that Novaris’s cyber-surveillance operations violated its sovereignty and unlawfully intruded into its territory. It argues that malware installation and server compromise constitute physical incursions, breaching Article 2(1) of the UN Charter and Article 3 of the 1955 Treaty.

On privacy, Atlantira asserts that PSE breached Article 17 ICCPR, citing General Comment No. 16 and the Human Rights Committee’s 2023 observations, emphasizing legality, necessity, and proportionality, including extraterritorial obligations. Regarding freedom of expression, it argues that Article 19 ICCPR was violated by targeting journalists and exposing sources (Sanoma Uitgevers B.V. v. The Netherlands, 2010). On fair-trial guarantees, Atlantira claims Article 14 ICCPR was breached through interception of attorney-client communications (Michaud v. France, 2012).

Atlantira maintains that the NDSA is a State organ, making its conduct attributable to Novaris (ILC Articles, Art. 4), and seeks cessation of surveillance, destruction of unlawfully obtained data, compensation of USD 750 million, a public apology, and guarantees of non-repetition.

• Novaris

Novaris argues that intelligence collection is a legitimate sovereign activity and espionage is not prohibited. It contends that no coercion occurred, citing Nicaragua, and that Article 17 allows lawful national-security surveillance. Surveillance was narrowly targeted under the 2021 National Security Act.

Novaris denies violations of Article 19, arguing expression was not suppressed, and asserts that fair-trial rights can be limited if communications facilitate criminal activity. While accepting attribution of the NDSA, Novaris denies wrongdoing and claims Atlantira’s requested remedies are excessive and infringe its sovereignty.

LEGAL ANALYSIS & JUDICIAL REASONING

The Court now turns to examine the key issues raised by the Parties and determine whether the actions of the Republic of Novaris are consistent with its international law obligations.

A. Sovereignty and Non-Intervention

The Court recalls that sovereignty is a fundamental principle of international law, protecting a State’s exclusive authority over its territory, population, and domestic affairs. Sovereignty encompasses territorial integrity as well as the freedom of a State to determine its political, economic, social, and cultural policies without external interference. Closely linked to sovereignty is the principle of non-intervention, which prohibits coercive interference in the internal affairs of another State, whether by force, threat, or other measures that impair the free exercise of governmental authority.

Article 2(4) of the United Nations Charter enshrines this principle by prohibiting the threat or use of force against the territorial integrity or political independence of any State. The broader doctrine of non-intervention also forbids dictatorial interference in matters within the domestic jurisdiction of States, reflecting the customary requirement that interference must be coercive to constitute a breach.

In Military and Paramilitary Activities in and against Nicaragua, the Court emphasized that “[t]he element of coercion … defines, and indeed forms the very essence of, prohibited intervention”. Oppenheim’s International Law similarly stresses that interference must be forcible, dictatorial, or otherwise coercive to qualify as prohibited intervention.

In the present case, while Novaris’s cyber-intrusions were intrusive and technologically sophisticated, they did not deprive Atlantira of control over its sovereign prerogatives or alter its political decision-making. The evidence does not show coercion or dictatorial influence. Accordingly, the Court concludes that Novaris did not violate sovereignty or the rule of non-intervention.

B. Right to Privacy 

Article 17 of the ICCPR guarantees that “no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home, or correspondence, and protects against unlawful attacks on honor and reputation”. The Court recalls that, according to General Comment No. 16 of the Human Rights Committee, any interference with privacy must meet three cumulative conditions, legality, necessity, and proportionality. States are further required to establish safeguards against misuse, ensure accountability, and provide effective remedies for violations.

Comparative and persuasive jurisprudence reinforces these standards. In Weber and Saravia v. Germany, the European Court of Human Rights identified minimum procedural safeguards necessary to prevent abuse in communications surveillance, including, clear statutory authorization for interception, limits on duration, procedures governing examination, use, and storage of collected data, protections for communications involving third parties, and rules for the timely erasure or destruction of information. Such safeguards ensure that surveillance is targeted, proportionate, and subject to independent oversight.

In the present case, PSE lacked sufficient safeguards to meet these requirements.While Novaris contends that its surveillance was lawful and necessary for national security, Novaris did not demonstrate the existence of independent judicial authorization, administrative oversight mechanisms, or minimization procedures to limit collection and retention of personal data. Approximately 50,000 individuals, including journalists, political activists, and human-rights defenders, were indiscriminately monitored without narrowly tailored criteria or proportionality assessments. The extent of surveillance was grossly disproportionate to any security threat identified by Novaris.

Accordingly, the Court concludes that Novaris violated Article 17 of the ICCPR. The Court emphasizes that States must ensure that extraterritorial activities affecting individuals’ privacy are consistent with their international human rights obligations.

C. Freedom of Expression and Press Freedom 

Article 19 of the ICCPR protects the “right of individuals to seek, receive, and impart information and ideas of all kinds”. The protection of journalistic sources is widely recognized as a fundamental component of this right, ensuring that journalists can operate independently and the public can access information necessary for democratic governance.

The Court finds that Novaris’s interception of journalists’ communications and the identification of their sources created a substantial and foreseeable chilling effect on freedom of expression. The Court recalls the decision of the African Commission on Human and Peoples’ Rights in Dawda K. Jawara v. Gambia, which emphasized that restrictions on media freedom undermine democratic governance and public confidence. General, indiscriminate, or insufficiently justified restrictions are particularly harmful, as they inhibit investigative reporting and public debate on matters of public interest.

Novaris has not demonstrated that its surveillance measures were narrowly targeted or that less intrusive means could not have been employed to achieve legitimate security objectives. PSE encompassed a large number of journalists and human-rights defenders, and its scope was disproportionate to any alleged threat.

Accordingly, the Court concludes that Novaris violated Article 19 ICCPR. The Court underscores that freedom of expression and press freedom are essential to democratic societies, and States must ensure that national-security measures do not unduly infringe these rights.

D. Fair Trial and Attorney-Client Privilege 

Article 14 ICCPR guarantees the right to a fair trial, which includes the protection of confidential communications between lawyers and their clients. Such communications are essential to the administration of justice, enabling lawyers to provide effective representation and ensuring that individuals can exercise their rights under the law. Comparative jurisprudence, including AmaBhungane Centre for Investigative Journalism NPC and R.E. v. United Kingdom, emphasizes that surveillance of lawyer-client communications constitutes a particularly severe interference, requiring heightened safeguards.

The Court finds that Novaris intercepted communications between lawyers and clients without judicial authorization or other procedural safeguards. Minimization procedures, targeting limitations, and oversight mechanisms were absent. Furthermore, the intercepted information was used in legal proceedings, directly undermining the integrity of the judicial process and the confidentiality essential to the right to a fair trial.

In light of the above, the Court unanimously concludes that Novaris violated Article 14 ICCPR. The Court reiterates that protection of lawyer-client communications is a fundamental requirement under international law and any interference must be strictly justified, narrowly targeted, and accompanied by procedural safeguards to prevent abuse.

E. Attribution to the State of Novaris

Under Article 4 of the International Law Commission’s (“ILC”) Articles on Responsibility of States for Internationally Wrongful Acts (“ARISWA”), “the conduct of any organ of a State is attributable to the State, irrespective of the organ’s position in the governmental hierarchy or its functions”. State responsibility attaches even when the conduct exceeds the limits of authority or contravenes instructions, provided that the organ acts in its official capacity.

The Court notes that the NDSA was established by statute, empowered to conduct cyber-intelligence activities, and operates under the direction and control of the Government of Novaris. The agency performs functions that are governmental in nature, including surveillance and intelligence-gathering activities related to national security. As such, the NDSA constitutes a State organ under Article 4, and its conduct in relation to PSE is fully attributable to the Republic of Novaris.

F. Remedies

The Court determines that, having found violations of Articles 17, 19, and 14 ICCPR, Atlantira is entitled to effective remedies under international law:

• Immediate cessation of all unlawful surveillance measures associated with PSE;

• Provision of assurances and guarantees of non-repetition, including the establishment of independent judicial and administrative oversight mechanisms consistent with the ICCPR;

• Issuance of a public acknowledgment of the violations identified in this Judgment;

• Negotiation of appropriate compensation for harm suffered, with either Party entitled to return to the Court for determination of quantum if agreement is not reached;

• Secure review and disposal of all data unlawfully obtained, ensuring it is not disseminated or used in any form, in line with the principle of restitutio in integrum.

The Court emphasizes that these remedies must restore the rights of the injured State and its nationals, prevent recurrence of violations, and provide acknowledgment and redress for the harm caused.

FINDINGS & CONCLUSIONS

The Court finds that Novaris did not violate sovereignty or the principle of non-intervention. Prohibited intervention requires coercion depriving a State of control over its sovereign prerogatives (Military and Paramilitary Activities in and against Nicaragua; Oppenheim). While intrusive, Novaris’s cyber-surveillance did not reach this threshold.

The Court concludes that Novaris violated Article 17 ICCPR. Privacy interference must be lawful, necessary, and proportionate, with safeguards against abuse (General Comment No. 16; Weber and Saravia v. Germany). PSE lacked judicial authorization, oversight, and minimization procedures, and indiscriminately monitored thousands of individuals.

Novaris also violated Article 19 ICCPR. Protection of journalistic sources is essential to freedom of expression, and restrictions must be narrowly targeted and proportionate (Dawda K. Jawara v. Gambia). The surveillance created a chilling effect on journalists and human-rights defenders.

The Court finds a violation of Article 14 ICCPR. Lawyer-client communications require heightened protection, and interception without judicial authorization or safeguards breaches fair-trial rights (AmaBhungane; R.E. v. United Kingdom).

The conduct of the National Digital Security Agency is fully attributable to Novaris under Article 4 ARSIWA.

Atlantira is entitled to:

1. Immediate cessation of PSE;
2. Assurances and guarantees of non-repetition with independent oversight;
3. Public acknowledgment of violations;
4. Negotiation of compensation, with recourse to the Court if unresolved;
5. Secure review and disposal of unlawfully obtained data.

Remedies must restore rights, prevent recurrence, and provide acknowledgment and redress for harm.

OPERATIVE PART (DISPOSITIF)

For these reasons, the Court decides as follows:

1. Declares that Novaris did not violate the principle of sovereignty or the rule of non-intervention;
2. Finds that Novaris violated Article 17 of the ICCPR;
3. Finds that Novaris violated Article 19 of the ICCPR;
4. Finds that Novaris violated Article 14 of the ICCPR;
5. Declares that the conduct of the NDSA is attributable to the Novaris under Article 4 of the ILC’s Articles on Responsibility of States for Internationally Wrongful Acts;
6. Orders Novaris to cease all unlawful surveillance measures associated with PSE;
7. Orders Novaris to provide assurances and guarantees of non-repetition, including the establishment of independent judicial and administrative oversight mechanisms consistent with the ICCPR;
8. Orders Novaris to issue a public acknowledgment of the violations identified in this Judgment;
9. Invites the Parties to negotiate appropriate compensation within one year of this Judgment and decides that, failing agreement, either Party may return to the Court for determination of the amount of compensation;
10. Orders that all data unlawfully obtained through PSE shall not be used, disclosed, or disseminated, and shall be subjected to independent review and secure disposal;
11. Dismisses all remaining submissions.

Judge (Hypothetical) Jeeva Sharunee Devi a/p Jesuthas

(Hypothetical) International Court