Kingdom of Atlantira v. Republic of Novaris – Hypothetical Judgment by Karthiga Elenggo (IJWC 2025)

I. Introduction

1. The Court is seised, by Application of 15 January 2025, of a dispute between the Kingdom of Atlantira (“Atlantira“) and the Republic of Novaris (“Novaris“) concerning the alleged lawfulness under international law of a covert digital surveillance programme known as “Project Sentinel Eye”. The case raises questions on sovereignty and non-intervention, the right to privacy and freedom of expression under the International Covenant on Civil and Political Rights (“ICCPR“), fair-trial guarantees, attribution and State responsibility, and remedies.

2. Jurisdiction is asserted under Article 36(2) of the Court’s Statute, both Parties having deposited declarations in 2010, and under Article 15 of the 1955 Treaty of Friendship and Cooperation between the Parties (“the 1955 Treaty“), which confers jurisdiction for disputes concerning its interpretation or application.

3. The present Judgment addresses admissibility and the merits and concludes with the Court’s orders.

II. Procedural History

4. By Application of 15 January 2025, Atlantira instituted proceedings. Written pleadings were exchanged; the Parties presented oral argument. No counter-claim was filed. Provisional measures proceedings were not pursued. The Court received limited classified material under protective arrangements. The case is now ready for decision.

III. Statement of Facts

5. Atlantira and Novaris are neighbouring States with extensive social and economic ties. In March 2024, Atlantira announced that it had discovered a covert Novarian surveillance operation, “Project Sentinel Eye”, allegedly conducted by the National Digital Security Agency (“NDSA“) since January 2022.

6. According to Atlantira, the NDSA infiltrated telecommunications networks and internet infrastructure used by Atlantiran nationals, installed malware on devices located in Atlantira, compromised servers situated in Atlantiran territory, accessed communications routed via third States, and monitored Atlantiran diplomatic communications during negotiations.

7. The operation allegedly targeted political activists, journalists, human-rights advocates, opposition figures and their associates, amounting to approximately 50,000 individuals. Atlantira states that several persons suffered harassment, threats, reputational damage, and, in certain instances, arrest and prosecution in Novaris following identification through surveillance. It further reports intrusion into attorney-client communications and the flight of a number of targeted individuals.

8. Atlantira and Novaris engaged in diplomatic exchanges from May to October 2024. Negotiations collapsed after Atlantira alleged continuing interception, including of its diplomats. Atlantira recalled its ambassador. Atlantira then brought this case seeking declarations of breach and comprehensive remedies.

9. Novaris acknowledges that its authorities conducted digital intelligence activities but characterises them as targeted, lawful, and necessary for national security in response to extremist threats. It denies violating international law or the 1955 Treaty and contests the scope and impact alleged by Atlantira.

IV. Issues for Determination

10. The Court identifies the following issues:

1) Whether Novaris violated Atlantira’s sovereignty and the principle of non-intervention by covert digital surveillance directed at persons and infrastructure in Atlantira and abroad.

2) Whether Novaris violated Article 17 ICCPR on privacy, and, if so, whether such interferences are justified as necessary and proportionate for national security.

3) Whether Novaris violated Article 19 ICCPR on freedom of expression, including by undermining press freedom and source protection.

4) Whether the monitoring of lawyer-client communications violates fair-trial guarantees under international human rights law.

5) Whether the conduct is attributable to Novaris under the law of State responsibility.

6) What remedies are appropriate.

V. Summary of Arguments

11. Issue 1 (Sovereignty/Non-Intervention). Atlantira relies on Article 2(1) UN Charter, customary sovereignty, and the Court’s jurisprudence, arguing that unconsented penetration of devices and servers in Atlantira and surveillance of diplomats constitute a breach of territorial sovereignty and prohibited intervention in political affairs; Atlantira also invokes Article 3 of the 1955 Treaty. Novaris replies that intelligence gathering is a widespread sovereign activity, not per se unlawful nor coercive; remote technical access without physical presence does not violate sovereignty; and the treaty’s non-interference clause should be read narrowly.

12. Issue 2 (Privacy). Atlantira invokes ICCPR Article 17 and the Human Rights Committee’s interpretations, which require legality, necessity, proportionality, and safeguards, arguing that large-scale, persistent interception and device intrusion are arbitrary and disproportionate. Novaris contends there was a legal basis in its domestic law, that measures were targeted against extremist networks, and that national-security needs justified the scale.

13. Issue 3 (Expression/Press). Atlantira argues that the identification and prosecution of journalistic sources, and the pervasive monitoring of journalists produced a chilling effect contrary to Article 19 ICCPR. Novaris responds that it punished espionage involving classified information, not expression, and that surveillance alone does not constitute a violation where necessary for security.

14. Issue 4 (Fair Trial). Atlantira contends that the attorney-client privilege is integral to fair-trial rights and that interception of such communications violates those guarantees. Novaris argues any monitoring was limited, connected to serious threats, and does not engage fair-trial guarantees outside criminal proceedings; privilege is not absolute where communications facilitate crime.

15. Issue 5 (Attribution). Atlantira submits that NDSA is a State organ; its conduct is attributable. Novaris accepts the institutional status but denies breach.

16. Issue 6 (Remedies). Atlantira seeks cessation, deletion of data, disclosure sufficient to notify affected persons, compensation (USD 750 million), apology, and guarantees of non-repetition. Novaris contests liability and quantum, resists destruction of intelligence holdings, and opposes orders touching internal accountability.

VI. Legal Analysis & Judicial Reasoning

A. Jurisdiction and Admissibility

17. The Court’s jurisdiction is founded on Article 36(2) of its Statute and Article 15 of the 1955 Treaty. National security considerations do not, in themselves, remove a dispute from the Court’s cognisance where treaty and customary obligations are invoked. This is an inter-State claim; exhaustion of local remedies does not bar espousal for Atlantira’s own injuries and those of its nationals.

B. Sovereignty and Non-Intervention

18. Sovereignty entails exclusive authority over activities on a State’s territory. The Court has recognised that unconsented activities by one State on another’s territory may breach sovereignty and, where coercive in the domaine réservé, the principle of non-intervention.

19. The record establishes persistent, unconsented access to devices and servers located in Atlantira, installation of malware enabling long-term control, and interception of Atlantiran diplomatic communications during negotiations. The Court considers that remote technical operations which seize functional control over systems in the territory of another State amount to acts performed on that territory for sovereignty analysis; physical presence is not determinative.

20. The targeting of political actors, civil society, and diplomats relates to matters within Atlantira’s domaine réservé. By systematically compromising protected communications in a manner liable to influence or constrain political processes and diplomatic conduct, Novaris engaged in prohibited intervention.

21. The 1955 Treaty’s non-interference clause is engaged. In light of the facts as found, Novaris’s conduct breached Article 3 of that Treaty. By contrast, the activities, although grave, do not attain the gravity, scale, or effect characteristic of a “use of force” under Article 2(4) UN Charter. No breach of Article 2(4) is established.

C. Right to Privacy (ICCPR Article 17)

22. Article 17 protects against arbitrary or unlawful interference with privacy and correspondence. Interception of electronic communications and device intrusions fall within the scope of the right. Interference must be lawful, necessary for a legitimate aim, and proportionate, with effective safeguards.

23. The programme covered approximately 50,000 Atlantiran individuals over two years and involved bulk interception and implant-based access to stored and live data, including sensitive financial, medical, and location data. The selection criteria included peaceful political activity and journalism. The Court is not satisfied that Novaris has demonstrated individualised necessity or that less intrusive measures were impracticable.

24. Even assuming a domestic legal basis in Novaris, the absence of independent ex ante authorisation, limited oversight, and the sheer scale of persistent intrusions render the interferences arbitrary. The unlawful access to devices and servers situated in Atlantira further underscores arbitrariness.

D. Freedom of Expression and Press (ICCPR Article 19)

25. Article 19 protects the right to seek, receive and impart information. Interferences must be lawful and necessary for aims including national security. The Court accords significant weight to the role of journalists and source confidentiality in democratic society.

26. The record shows surveillance directed at journalists and the identification and prosecution of sources following compromise of confidential communications, with a documented chilling effect on journalistic activity and civil-society participation in Atlantira. While States may lawfully protect classified information, surveillance measures that broadly and persistently compromise newsgathering and source confidentiality without rigorous necessity and safeguards cannot be justified.

E. Fair-Trial Guarantees and Attorney-Client Communications

27. Confidential lawyer-client communication is integral to the right to prepare a defence and to access to justice. Systematic or targeted interception of such communications requires strict necessity, narrow tailoring, and independent authorisation; general monitoring or pre-emptive access is incompatible with fair-trial guarantees.

28. The record establishes sustained monitoring of attorney-client communications, including those of Ms Sofia Ramirez, and use of such material in interrogations and proceedings. The asserted possibility that some communications may have facilitated wrongdoing does not justify broad, pre-authorised access in the absence of stringent safeguards.

F. Attribution and Responsibility

29. The NDSA is established by Novarian law and performs governmental functions. Under the law of State responsibility, the conduct of a State organ is attributable to the State. The breaches identified above thereby engage Novaris’s international responsibility. The continuation of interceptions after formal notification between May and October 2024, including of diplomats, constitutes an aggravating, continuing wrongful act.

G. Remedies (Issue 6)

30. Reparation must, as far as possible, wipe out the consequences of the wrongful act. Appropriate remedies include cessation, assurances of non-repetition, restitution where feasible, compensation, and satisfaction.

31. Cessation and Guarantees. Novaris must immediately cease unlawful surveillance targeting Atlantiran nationals and Atlantiran-situated infrastructure and refrain from monitoring Atlantiran diplomatic communications. Guarantees of non-repetition shall include: (i) independent ex ante authorisation for any extraterritorial surveillance foreseeably affecting Atlantiran persons or systems; (ii) independent, regular oversight; (iii) technical measures preventing unconsented access to Atlantiran networks; and (iv) protected channels for inter-State notification and cooperation in exceptional cases.

32. Data Deletion and Controlled Retention. Novaris shall delete or irreversibly anonymise data unlawfully obtained from Atlantiran sources. A narrow, time-bound sealed retention may be permitted only where (a) data are strictly necessary to ongoing criminal proceedings; (b) their provenance and use are disclosed to the competent tribunal; and (c) Atlantira is notified via a secure channel. Compliance shall be verified by a mutually agreed independent technical monitor.

33. Disclosure for Notification and Remediation. The Court does not order public disclosure of methods. Novaris shall, under a protective order, disclose sufficient information to enable individual notification, device remediation, and legal redress by affected Atlantiran persons, with assistance from the technical monitor.

34. Compensation. Atlantira claims USD 750 million. The record establishes material and moral injury to individuals and institutional costs to Atlantira, but the evidence is insufficient to fix a precise quantum. The Court declares an entitlement to compensation and lays down principles: (i) compensation to individuals for pecuniary loss and moral damage causally linked to unlawful surveillance; (ii) compensation to Atlantira for reasonable mitigation and remediation costs (including network hardening and diplomatic protection); (iii) exclusion of speculative losses. The Parties shall negotiate the quantum in good faith within six months, with the assistance of Court-appointed damages experts. Failing agreement, either Party may revert to the Court for determination on the experts’ report.

35. Satisfaction. Given the affront to sovereign equality and diplomatic integrity, Novaris shall issue a formal acknowledgement and apology to Atlantira within 60 days, the text to be agreed between the Parties.

36. Domestic Accountability and Capabilities. The Court does not order prosecutions, which remain within domestic jurisdiction. Nor does it order dismantlement of capabilities; the ordered safeguards and cessation suffice to bring conduct into compliance.

VII. Findings & Conclusions

37. The Court finds that Novaris violated Atlantira’s sovereignty and the principle of non-intervention, and breached Article 3 of the 1955 Treaty; it did not employ force in the sense of Article 2(4) UN Charter.

38. The Court finds violations of Article 17 ICCPR (privacy), Article 19 ICCPR (freedom of expression), and fair-trial guarantees in relation to attorney-client communications.

39. The conduct of the NDSA is attributable to Novaris. International responsibility is engaged. Appropriate remedies include cessation, guarantees of non-repetition, deletion or anonymisation of unlawfully obtained data with limited sealed retention, confidential disclosure sufficient for notification and remediation, compensation per principles set herein, and formal apology.

VIII. Operative Part (Dispositif)

For these reasons, THE COURT,

1. Finds, unanimously, that it has jurisdiction over the dispute and that the Application is admissible;

2. Holds, by fourteen votes to one, that Novaris has violated Atlantira’s sovereignty and the principle of non-intervention, and has thereby breached Article 3 of the 1955 Treaty of Friendship and Cooperation;

3. Holds, unanimously, that Novaris has not breached Article 2(4) of the UN Charter;

4. Holds, unanimously, that Novaris has violated Article 17 of the ICCPR (right to privacy);

5. Holds, by fourteen votes to one, that Novaris has violated Article 19 of the ICCPR (freedom of expression), including through unjustified interferences with journalistic activity and source confidentiality;

6. Holds, unanimously, that Novaris has violated fair-trial guarantees by interfering with confidential lawyer-client communications;

7. Declares, unanimously, that the conduct of the National Digital Security Agency is attributable to Novaris and entails international responsibility;

8. Orders, unanimously, that Novaris shall immediately cease the internationally wrongful acts identified and shall provide guarantees of non-repetition consistent with paragraph 31 of this Judgment;

9. Orders, unanimously, that Novaris shall delete or irreversibly anonymise data unlawfully obtained from Atlantiran sources, subject to the limited, time-bound sealed retention exception and independent technical monitoring set forth in paragraph 32;

10. Orders, unanimously, that Novaris shall make confidential disclosures sufficient to enable notification and remediation for affected Atlantiran persons, under protective arrangements and with a mutually agreed technical monitor as set out in paragraph 33;

11. Declares, unanimously, that Atlantira and affected individuals are entitled to compensation; directs the Parties to negotiate quantum within six months guided by the principles in paragraph 34, with support from Court-appointed damages experts; failing agreement, either Party may return to the Court for determination;

12. Orders, unanimously, that Novaris shall, within 60 days, issue a formal acknowledgement and apology to Atlantira as a form of satisfaction, the text to be agreed by the Parties;

13. Reserves unanimously, the question of costs.

IX. Signature & Date

Karthiga
Judge (Hypothetical) Karthiga Elenggo
(Hypothetical) International Court