Kingdom of Atlantira v. Republic of Novaris – Hypothetical Judgment by Samantha Koh Zi En (IJWC 2025)

INTRODUCTION

1. This case concerns an international dispute between the Kingdom of Atlantira (“Applicant“) and the Republic of Novaris (“Respondent“) arising from a covert digital surveillance operation—codenamed Project Sentinel Eye—allegedly carried out by the Respondent’s intelligence agency, the National Digital Security Agency (“NDSA“), against digital infrastructure and individuals located within the territory of the Applicant.

2. The Applicant alleges that the Respondent’s widespread cyber-surveillance violated its sovereignty, the principle of non-intervention, and rights under the International Covenant on Civil and Political Rights (“ICCPR“). The Court’s jurisdiction is based on both Parties’ unconditional acceptance under Article 36(2) of the Statute of the International Court of Justice (“ICJ Statute“) and Article 15 of the 1955 Treaty of Friendship and Cooperation (“TFC“), which allows disputes over the Treaty to be brought before the Court.

PROCEDURAL HISTORY

3. On 15 January 2025, the Kingdom of Atlantira instituted proceedings before the International Court of Justice against the Republic of Novaris, invoking the Court’s jurisdiction under Article 36(2) of the ICJ Statute and Article 15 of the TFC.

4. The Application alleged that the Respondent had engaged in a wide-ranging cyber surveillance operation, codenamed Project Sentinel Eye, in violation of international legal obligations concerning sovereignty, non-intervention, and the protection of human rights in cyberspace.

5. Upon receipt of the Application, the Registry transmitted a certified copy to the Respondent pursuant to Article 40(2) of the ICJ Statute. The President of the Court subsequently fixed the time limits for the submission of written pleadings, which were duly filed by both Parties within the prescribed time.

6. Public hearings were held at the Peace Palace in The Hague, during which both Parties presented their oral arguments and responded to questions posed by Members of the Court.

7. At the conclusion of the oral proceedings, the Court reserved its judgment.

STATEMENT OF FACTS

8. The Applicant and Respondent, neighbouring Eastern Mediterranean States, share a history of peaceful separation and treaty-based diplomatic relations, including the 1955 TFC. In 2024, the Applicant uncovered Project Sentinel Eye, a covert surveillance programme allegedly conducted by the Respondent’s NDSA, targeting approximately 50,000 individuals.

9. The operation involved infiltration of digital infrastructure and interception of sensitive data. The Respondent later admitted to certain activities, citing national security. Diplomatic efforts failed following continued surveillance during negotiations. Consequently, the Applicant initiated proceedings before the Court on 15 January 2025.

ISSUES FOR DETERMINATION

10. The Court identifies the following legal issues for determination:

10.1. Whether the Respondent’s extraterritorial cyber-surveillance activities, conducted through the NDSA and targeting the Applicant’s nationals and digital infrastructure, constituted a violation of the Applicant’s sovereignty and the principle of non-intervention under customary international law and Article 3 of the TFC;

10.2. Whether the Respondent’s surveillance operations amounted to an unlawful or arbitrary interference with the right to privacy under Article 17 of the ICCPR, and whether such interference was justified under permissible limitations for national security;

10.3. Whether the surveillance of journalists and civil society actors infringed Article 19 of the ICCPR by restricting freedom of expression and press freedom, and by creating a chilling effect on political discourse;

10.4. Whether the interception of attorney-client communications by the Respondent constituted a violation of the right to a fair trial and access to justice under international human rights law;

10.5. Whether the conduct of the NDSA is attributable to the Respondent in accordance with the principles of state responsibility under international law;

10.6. If any violations are established, what forms of reparation—such as cessation, restitution, compensation, satisfaction, and guarantees of non-repetition—are appropriate under international law.

SUMMARY OF ARGUMENTS

11. The Applicant contends that the Respondent’s surveillance activities, carried out through the NDSA, violated its sovereignty and the principle of non-intervention under customary international law and Article 3 of the TFC. It alleges unauthorised access to its digital infrastructure, infiltration of telecommunication systems, and targeting of its nationals abroad, citing Corfu Channel and Nicaragua as supporting authorities. The Respondent argues that cyber intelligence gathering is a common State practice not expressly prohibited by international law, and asserts that its actions were non-coercive and did not impair sovereign functions.

12. Regarding the right to privacy under Article 17 of the ICCPR, the Applicant claims that surveillance affecting approximately 50,000 individuals was arbitrary, unlawful, and lacking legal safeguards, oversight, or redress. It challenges the justification based on national security. The Respondent maintains that its surveillance was lawful, necessary, and proportionate under domestic legislation, targeting individuals reasonably suspected of posing security threats and overseen through internal mechanisms.

13. On freedom of expression, the Applicant alleges that surveillance targeted journalists and civil society actors, undermining press freedom and causing a chilling effect, particularly through exposure and prosecution of sources. The Respondent denies suppressing lawful expression and asserts that its actions were limited to individuals linked to extremist or destabilising activities, arguing that any restrictions complied with Article 19(3) of the ICCPR.

14. The Applicant further claims that monitoring of attorney-client communications violated the right to a fair trial under Article 14 of the ICCPR, citing compromised legal defence. The Respondent argues that surveillance was based on credible suspicion and limited in scope, and that such claims are more appropriately addressed through domestic remedies.

15. Both Parties agree that the conduct of the NDSA is attributable to the Respondent under the International Law Commission’s Articles on State Responsibility (“ARSIWA“). However, the Respondent disputes that any breach occurred.

16. Finally, the Applicant seeks full reparation, including cessation, destruction of data, compensation and guarantees of non-repetition. The Respondent contests these remedies as excessive, speculative and incompatible with national security imperatives.

LEGAL ANALYSIS & JUDICIAL REASONING

ISSUE 1: Sovereignty and Non-Intervention

17. The Court examined whether the Respondent’s cyber-surveillance operations, executed through the NDSA, breached the Applicant’s sovereignty and the principle of non-intervention under customary international law and Article 3 of the TFC. Drawing upon the Nicaragua and Corfu Channel cases, the Court reaffirmed that coercive interference in a State’s internal affairs constitutes a prohibited intervention.

18. Although the Respondent argued that cyber intelligence gathering does not amount to unlawful intervention and is not clearly prohibited by international law, the Court rejected this position. It noted that the legality of espionage is not supported by consistent State practice or opinio juris. Reference was made to the Tallinn Manual, which indicates that cyber operations causing territorial effects such as malware infiltration may breach sovereignty.

19. On the evidence, the Court found that the Respondent’s surveillance was deliberate, sustained, and invasive. The targeting of political and legal figures, as well as the recruitment of insiders, constituted indirect coercion and a clear intrusion into the Applicant’s domestic affairs.

20. The Court further held that these acts violated Article 3 of the TFC, which prohibits direct and indirect interference. Consequently, the Respondent was found to have breached both customary international law and its treaty obligations.

ISSUE 2: Right to Privacy under the ICCPR

21. The Court considered whether the Respondent’s surveillance activities through the NDSA constituted a violation of Article 17 of the ICCPR. It recalled that any interference with privacy must be lawful, pursue a legitimate aim, and be necessary and proportionate. Drawing upon General Comment No. 16 and Weber and Saravia v. Germany, the Court reaffirmed that surveillance without legal safeguards, oversight, or remedies is incompatible with international human rights law.

22. The Applicant alleged a large-scale, targeted operation affecting around 50,000 individuals, involving malware installation and data exfiltration. The Respondent acknowledged the surveillance but claimed it was lawful and justified under domestic legislation. However, the Court found that the Respondent failed to demonstrate that affected individuals posed imminent threats or that proper authorisation and oversight mechanisms were in place.

23. Given the indiscriminate nature of the surveillance and the absence of procedural safeguards, the Court concluded that the Respondent’s actions were neither necessary nor proportionate. Accordingly, they amounted to arbitrary and unlawful interference with privacy, in breach of Article 17 of the ICCPR.

ISSUE 3: Freedom of Expression and Press Freedom

24. The Court examined whether the Respondent’s surveillance activities violated the right to freedom of expression under Article 19(2) of the ICCPR, which protects the right to seek, receive, and impart information through any medium, including digital platforms. The Court recalled that under Article 19(3), any restriction must be lawful, pursue a legitimate aim, and be necessary and proportionate. It emphasised the importance of press freedom and the protection of journalistic sources, referencing Sanoma Uitgevers B.V. v. The Netherlands and Ríos et al. v. Venezuela.

25. The Applicant claimed that the Respondent’s cyber-surveillance, targeting journalists including Mr Alexei Dimitrov, compromised confidential sources, led to prosecutions, and created a chilling effect on journalistic and civil society activity. The Respondent acknowledged monitoring certain individuals but denied suppressing expression, asserting national security as the objective.

26. The Court found that although surveillance is not inherently a violation of expression rights, the Respondent’s actions, conducted without judicial authorisation or adequate safeguards, interfered with journalistic freedom and source protection. It held that the Respondent had not shown that the measures were necessary or proportionate, nor that those targeted posed imminent security threats.

27. Accordingly, the Court concluded that the Respondent’s conduct constituted an unjustified interference with freedom of expression under Article 19 of the ICCPR, resulting in the erosion of press freedom and the suppression of public discourse in the Applicant’s territory.

ISSUE 4: Fair Trial and Attorney-Client Privilege

28. The Court considered whether the Respondent’s surveillance activities, conducted through the NDSA, violated the right to a fair trial under Article 14 of the ICCPR, specifically through the infringement of attorney-client privilege. It reaffirmed that confidential communication with legal counsel is an essential safeguard of the right to defence and a fundamental element of access to justice.

29. The Applicant alleged systematic interception of privileged communications, referencing the case of attorney Sofia Ramirez as illustrative of compromised defence strategies. The Court noted that international human rights bodies, including the Human Rights Committee and the European Court of Human Rights, have consistently affirmed the centrality of legal professional privilege to fair trial guarantees. In Michaud v. France, the European Court emphasised this principle.

30. The Respondent argued that any interference was minimal and justified by national security concerns but failed to demonstrate that the surveillance was targeted at individuals posing concrete threats. Nor did it provide evidence of judicial authorisation or procedural safeguards.

31. The Court found the surveillance regime to be broad and indiscriminate, lacking oversight and redress mechanisms. It recognised the chilling effect on legal representation, including lawyer-client communications being restrained out of fear of interception, thereby undermining confidence in the justice system.

32. Accordingly, the Court concluded that the Respondent’s actions constituted a violation of Article 14 of the ICCPR. The interference was neither necessary nor proportionate, and the absence of legal safeguards rendered it arbitrary and incompatible with international fair trial standards.

ISSUE 5: Attribution and State Responsibility

33. The Court found that the actions of the National Digital Security Agency (NDSA) are attributable to the Respondent under international law. As a State organ established by law and operating under official authority, the NDSA’s surveillance activities—carried out in its official capacity—engage the Respondent’s international responsibility.

34. Even if certain acts exceeded authority, they remain attributable under Articles 4 and 7 of ARSIWA. The Court rejected the Respondent’s claim that intelligence operations are exempt from attribution and concluded that the Respondent bears full international responsibility for the NDSA’s conduct.

ISSUE 6: Remedies

35. The Court addressed the issue of appropriate remedies following the establishment of the Respondent’s internationally wrongful acts. It reaffirmed the principle of full reparation, as set out in Factory at Chorzów (1928), requiring the responsible State to eliminate the consequences of the breach and restore, as far as possible, the situation that would have existed but for the violation. Full reparation may take the form of restitution, compensation, and satisfaction.

36. The Applicant sought cessation of the wrongful acts, destruction of unlawfully obtained data, financial compensation of USD 750 million, public acknowledgment of the breaches, and guarantees of non-repetition. The Court held that these remedies are well grounded in international law and are appropriate given the nature and gravity of the violations found.

37. The Court considered cessation and non-repetition essential, particularly as the surveillance activities were ongoing and capable of recurrence. It found that the Respondent must terminate all surveillance targeting the Applicant or its nationals and destroy the data collected under Project Sentinel Eye, constituting both restitution and satisfaction.

38. On compensation, the Court determined that the Applicant had substantiated both material and moral harm. Although the specific amount was reserved for later determination, the Respondent’s obligation to provide financial reparation was affirmed, subject to principles of proportionality and adequate evidentiary basis.

39. Finally, the Court recognised that satisfaction may also include declaratory relief. While it could not mandate the prosecution of individual officials, it urged the Respondent to conduct internal investigations and implement institutional safeguards to prevent future breaches.

40. Accordingly, the Court concludes that the Applicant is entitled to full and effective reparation, consistent with the gravity and consequences of the breaches established.

FINDINGS & CONCLUSIONS

41. For the reasons set out above, the Court finds that:

41.1. The Court finds that the Respondent, through the NDSA, conducted cyber surveillance activities that violated the Applicant’s sovereignty, the principle of non-intervention under customary international law, and Article 3 of the TFC.

41.2. The interception of private communications constituted an unlawful interference with the right to privacy under Article 17 of the ICCPR. The targeting of journalists and civil society actors infringed Article 19 by chilling free expression and compromising journalistic sources. Surveillance of attorney-client communications breached fair trial guarantees under Article 14.

41.3. The conduct of the NDSA is attributable to the Respondent under international law. The Court affirms its jurisdiction and concludes that the Applicant is entitled to full reparation, including cessation, data destruction, guarantees of non-repetition, and compensation.

42. Accordingly, the Court ordered the Respondent to:

42.1. Cease all surveillance activities targeting the Applicant or its nationals;

42.2. Destroy all unlawfully obtained data under Project Sentinel Eye and refrain from further use or dissemination;

42.3. Provide guarantees of non-repetition, including legal and institutional safeguards;

42.4. Pay financial compensation to the Applicant in an amount to be determined in a later phase or by agreement between the Parties; and

42.5. Conduct domestic investigations and implement accountability measures in accordance with international legal standards.

(Signed)
Judge (Hypothetical) Samantha Koh Zi En
(Hypothetical) International Court