The Court construed the question narrowly and sought to address only whether there is a rule prohibiting such a unilateral declaration under customary law and not whether there was a rule permitting it. In analysing relevant State practice, it concluded that ‘the practice of States in these latter cases does not point to the emergence in international law of a new rule prohibiting the making of a declaration of independence in such cases’ (para 79). This stance was criticized by Judge Simma in his Declaration that is reminiscent of the Lotus principle. He held that: ‘The Court’s reading of the General Assembly’s question and its reasoning, leaping as it does straight from the lack of a prohibition to permissibility, is a straightforward application of the so-called Lotus principle. By reverting to it, the Court answers the question in a manner redolent of nineteenth-century positivism, with its excessively deferential approach to State consent. Under this approach, everything which is not expressly prohibited carries with it the same color of legality; it ignores the possible degrees of non-prohibition, ranging from “tolerated” to “permissible” to “desirable”.’

The case related to a claim brought on behalf of natural and legal persons alleged to be shareholders in a foreign limited liability company. It was claimed that unlawful measures were taken against the company. This decision of the Court has principally been cited because of an obiter dictum on obligations erga omnes. The Court was under severe criticism during that period for failing to uphold the entitlement of Ethiopia and Liberia to invoke the responsibility of South Africa for the apartheid regime in Namibia in 1966. To address this criticism, the Court decided to include a paragraph in the decision postulating the idea of obligations owed to the international community as a whole.

The Court held that: ‘an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as well as from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination . . .’ (paras 33–4).