International law 6

Use of force and Immunities

(Sovereign and Diplomatic)

Principle of prohibition of use of force in international relations

It is one of Jus Cogens principles of international law from which no
derogation is permitted ( ICJ in Nicaragua case,1986). Examples of Jus
Cogens are the prohibition on the use of force, acts of aggression, racial
discrimination, the right to self- determination, crimes against humanity,
the prohibition on slavery, piracy, genocide, apartheid and prolonged
arbitrary detention.
Art. 2 of the UN Charter as one of the governing principles of international
law:
All members shall refrain in their international relations from the threat or
use of force against the territorial integrity or political independence of any
state, or in any other manner inconsistent with the purposes of the United
Nations.

Why is this principle ?

Failure of disarmament principle set out in Covenant of League of Nations,
1919.
Kellogg-Briand Pact, 1928 declared war to be inadmissible
Germany, Italy and Japan declare war 1939-41
Centralization of use of force under UN. Because, the decentralized use of
force is the sole cause of destabilization of international peace.
Controlling the unilateral use of force.
A new beginning: to save succeeding generations from the scourge of
war
The UNCharter establishes a system of collective security and forbids
unilateral resort to force.
No force can be justified against the purposes of the UN Charter.
Forcible denial of human force is outlawed in theUN Charter.

The meaning of Art. 2 of the UN Charter

The prohibition of use of force under Art. 2 of the Charter includes all direct armed
interventions and acts of aggression.
It is better articulated in the General Assembly Declaration on Friendly Relations of
1970. It confirms that :
armed intervention and all other forms of interference or attempted threats against
the personality of the state or against its political economic and cultural elements
are in violation of international law.
It also includes covert and indirect use of use force such as helping revolution
group of any state. ( Nicaragua Case, 1986)
Certain Expenses case, 1962
to further to achieve its objectives the UN can take any measure and that measure
is not ultra-vires.
A threat constitutes a breach of Art. 2 (4) if it were to be directed against territorial
integrity or political independence of a state, or against the purposes of UN.

Does covert and indirect use of force constitute breach

of Art. 2 (4) ?
The answer was obscure until 1986. It was first settled by ICJs
observation in Nicaragua case that indirect use of force constitutes the
violation of Art. 2(4) when it is intended to destabilize the legitimate
government as SIA of the US did in Nicaragua by supporting Contra rebels
through the provision of arms, training and equipment.
Military and Paramilitary Activities in and against Nicaragua Case (
Nicaragua v US, 1986)
1. At the first stage Nicaragua lodged a contentious case with ICJ. The US
didnt give consent to this contentious case.
2. At the second stage, Nicaragua sought for legal opinion as to whether the
US has infringed Art. 2 (4) of the UN Charter.
Factual circumstances that leaves no doubt that force has been used by one
state against another constitute the breach of Art.2(4) of the UN Charter.

Permissible use of force as self-defence

The use of force as an act of self-defence is permissible under Art. 51 of the
UN Charter. Art. 51 says, Nothing in the present Charter shall impair the
inherent right of individual or collective self-defence if an armed attack
occurs against a Member of the United Nations, until the Security Council
has taken measures necessary to maintain international peace and
security.
The use of force as an act of self-defence is based on customary
international law. State entities had inherent individual right, prior to the
UN Charter, to use force as an act of self-defence. Judge Jennings in
Nicaragua case opined that there is no doubt that prior to the UN Charter,
there was a customary law which restricted the lawful use of force, and
which correspondingly provided for a right to use force in self-defence.
Right to self-defence is a consequential right which is not natural or
fundamental right.

Continued.
Counter force can be used in the exercise of right to self-defence if there is
an armed attack within the territory of a state.
An armed attack must be understood as including not merely action by
regular armed forces across an international boarder, but also sending by
or on behalf of armed bands, groups, irregulars or mercenaries, which carry
out acts of armed force against another state of such gravity as to amount to
an actual armed attack conducted by regular forces, or its substantial
involvement therein.
While state have an inherent right to use force in self-defence , the Security
Council is central to the exercise of the right. Article 51 of the Charter requires that
any measure taken in the exercise of self-defence shall be immediately reported to
the Security Council and will not affect the right of the Security council to take
any action as it deems necessary in order to maintain or restore international peace
and security. Because it is a temporary right under Art.51.

Continued.
Self-defence is not the rule, it is a recognised exception to the prohibition
on the use of force, aside from Security Council authorization, and this is
why it is placed at the end of the exclusive right of Security Council
beginning with Art.39 and ending with Art.51.
Article 51 does not relate to the right of the state, it is an exception, it is
shoved into chapter 7.
The objectivity and proportionality is indispensable condition for the use of
force.

Limit on the use of force in self-defence

The objective of use of force in self-defence must be to push
back the enemies.
The use of force must be proportional and in accordance with
principle of necessity.

Anticipatory or Pre-emptive selfdefence

Anticipatory or pre-emptive self defence is a well established institution in
customary international law.
In Caroline case, 1841 British Secretary Webster argued that the attack
was an anticipatory self-defence. He said, if there is overwhelming
evidence of an imminent attack which leaves no choice and give no time
for deliberation, that is a situation when state can resort to anticipatory selfdefence. The rational is to wait for that attack to happen is to wait for
disaster. It was reiterated in Nuremberg judgment 1945.
The anticipatory selfdefence is absolutely absent in the UN Charter. It is a
deliberate omission by the drafters, after lengthy debate on it in San
Francisco Conference. Because its exercise would be susceptible of
profound abuse or misuse for selfish politician and only the powerful state
would monopolize this and as a result it will create more problem than it
solves.

Anticipatory self-defence and the UN Charter

The Caroline formulation differs strikingly from the UN Charter, where
Art. 51 requires that there should have been an armed attack before the
right of self-defence arises.
Brownly argues that notion of self-defence was adopted in Webster
correspondence in the Caroline case merely as an instance of selfpreservation and that to adopt the period period 1838-42 as the critical date
for customary law said to lie behind the Charter, drafted in 1954,is
anachronistic and indefensible. If the critical date is the law in 1945, the
question becomes whether customary law continued to be reflected in
Webster correspondence. Brownly concludes that contemporary state
practice has rejected the flexible approach of the Caroline case and Art. 51
precludes preventive action.
Anticipatory self-defence is absolutely absent in the UN Charter.

Humanitarian Intervention
The institution of humanitarian intervention is deeply rooted in
customary international law. In these days it has come up in a
different shape called responsibility to protect that for the
first time was used in Libya.
A soft law was developed in 2005 by UNGA on principle of
responsibility to protect. It is meant to protect the unarmed
civilian, not to terrorise them.
It is also not recognised by UN Charter and there are two
reasons attributed to this; (1) abuse of humanitarian
intervention and (2) monopoly of powerful few.

Enforcement measures under UN

Persuasive measures of settlement of dispute (chapter 6). a.
Means of settlement ( Article 33) and intervention by the
Security Council to settle the dispute; b. Investigation of the
dispute by the SC ( Art.34); c. Recommendation of appropriate
procedures by the SC (Art.36).
Coercive measure of settlement of dispute (chapter7) a.
Determination of situation and recommendations (Art.39) ; b.
To call upon to comply with provisions measures ( Art.40); c.
Complete or partial interruption of economic relations
(Art.41); d. Use of force ( Art.42).

Sovereign immunities
Sovereign immunity means the right of sovereign state and its
representatives to immunity from the jurisdiction (i.e., courts)
of other states ( see Art. 5 of the UN Convention on
Jurisdictional Immunities of States and Their Property, 2004).
Immunity is accorded in terms of both legal and judicial
responsibility, for example in the case of nationalization or
expropriation of foreign investment.
It broadly means that one sovereign is in no respect amenable
to another and bound by obligations of the highest character
not to degrade the dignity of his nation, by placing himself or
its sovereign rights within the jurisdiction of another.

To be continued
Sovereign immunity extends to civil, criminal and
administrative functions of the Head of the states under
customary international law.
Immunity only relates to the acts which are official and
governmental in nature, immunities granted to individuals as
officers of the state are not granted for their personal benefit,
but to ensure the effective performance of their functions on
behalf of their respective states.

About immunity from criminal liability

In the contemporary context, there is a shift from the previous
position of immunity to bring the state rulers to the justice for
the commission of heinous crime in international law.
The UKs House of Lords in the Pinochet ( No 3,1999) case
confirmed immunity to a former head of the state for official
acts. But Lord Millart held him responsible for his heinous
crimes during his regime in Chile. He argued that there are
certain crimes which are far above than any form of immunity.
Because heinous crimes in international law do not exonerate
any one regardless of his or her position . Therefore, the
immunity as a head of the state does not extend to heinous
crime having international jurisdiction.

Continued.
Individual criminal responsibility must be beyond the scope of
immunity.
The Nuremberg Trial establishes that the principle of
individual responsibility is beyond immunity. Immunity only
relates to official acts, not to individual criminal responsibility.
The judgment says that the crimes are committed by the
individuals and only by punishing the individuals the law can
be enforced.

To be continued
Art.4 of Genocide Convention, 1948 overtly
states that , for genocide each and every
person is individually responsible regardless of
status.
Art 2 and 3 of the Statute of ICTY endorse the
individual responsibility of all military
personnel for their crimes in Bosnian war.
Art. 12 of the Statute of ICC, and also Art.25

The relevant ICJ Cases about individual criminal

responsibility
Case Concerning the Application of Genocide Convention (ICJ Rep.2007)
( Bosnia and Herzegovina v Yugoslovia ( Serbia and Montenegro)
The Court observes that even a person in official capacity can commit
international crimes, but if you want to implicate someone as committing
these crimes officially, you will have to show a link between his
commission of crime and his official position.
Armed activity in Congo: DRC v Uganda (2005) ICJ Rep.168
The Court found the link between army general and the massacre
committed.
Case concerning the arrest warrant on the incumbent Foreign Minister of
DRC for inciting racial hatred
ICJ said there was ample evidence to establish that FM did abuse of his
position to incite racial hatred that eventually gave rise to genocide crise.

The restrictive approach of immunity

The unprecedented engagement of the sovereign states in commercial
activities over last few decades suggests that the state and its trading
agencies should no longer be immune from the jurisdiction of local courts
in respect of their non-governmental acts.
The Privy Council observed in the Philippine Admiral case, 1976, the
restrictive approach is more consonant with justice:
. the state can be sued in its own courts on commercial contracts into
which it has entered and there is no apparent reason why foreign states
should not be equally liable to be sued there in respect of such transactions.
Art.10 of the UN Convention on Jurisdictional Immunities of States and
their Property excludes the right of immunity of a state engaging in
commercial transactions.

The bilateral treaties create obligations for the contracting states to accept the
competence of domestic courts or the arbitration of international tribunals

Who is entitled to claim sovereign immunities ?

State agencies ( Art.2 (1) (b)
Heads of states and senior government officials ( See Ex
Parte Pinochet ( No 3) the head of the state is entitled to
same immunity as the state itself.
State officials other than Heads of State ( The right to
immunity of governmental officials other than a Head of State
was considered by ICJ in the Arrest Warrant case where the
court confirmed the immunities of high-ranking officers such
as the head and ministers of government, where their acts are
necessary for the effective performance of their functions.

Diplomatic immunities
Diplomats are the representatives of the state. Diplomatic immunities are a
long-standing state practice even since the time immemorial and thus it is a
solid institution of customary international law.
With regards to diplomatic immunities, there are three theories developed
so far namely;
(1) Extraterritorial theory: Extra-territoriality of diplomatic mission ( it is a u
utopian theory),
(2) Representative theory: Diplomats are entitled to immunities as they
represent their own country to another.
(3) Functional theory as developed by ILC that rejected both former theories
as absurd and this theory is the basis of Vienna Convention on Diplomatic
Relations 1961.

Diplomatic immunity
Diplomatic immunities are personal in the sense that they are enjoyed by
individuals rather than by the state itself. The purpose of these immunities
is not to benefit the individual as such, but to enable him carry out his
designated functions on behalf of the state.
Two multilateral conventions provide the principles of diplomatic and
consular immunities: the Vienna Convention on Diplomatic Relations 1961
that codifies customary international law on diplomatic immunities; the
Vienna Convention on Consular Relations 1963.
The law on diplomatic immunities is double edged that encompasses both
privileges for diplomat and consular official and obligations for receiving
state to protect the diplomat and his property in order that he may carry out
his functions effectively.

Subjects of diplomatic immunities

Heads of diplomatic mission: divided into three classes

(1)ambassador or nuncios accredited to Heads of state,(2)
envoys, ministers and internuncios accredited to heads of state,
(3) Charge de affairs accredited to Minters for foreign affairs.
Staff of mission: three categories; (1) diplomatic staff such as
counsellors, diplomatic secretaries, or attaches; (2)the
administrative and technical staff; (3) the service staff.
Premises of diplomatic mission

The principles of immunities

Inviolability of the person of diplomatic agents: The person of diplomatic
agent shall be inviolable. He shall not liable to any form of arrest or
detention. The receiving state shall treat him with due respect and shall take
all appropriate steps to prevent any attack on his person, freedom or
dignity ( Art.29 Vienna Convention).
The private residence of a diplomatic agent, his papers, correspondence and
property such as car, bank account and other goods intended for personal
and work related use ( Art. 30 of the Convention).
Personal immunities from local jurisdiction such as:
(1) immunity from criminal jurisdiction ( Art.31, para 1);
(2) immunity from civil and administrative jurisdiction (Art.31, para 1)
Exceptions: (a) a real action related to immovable property not held on
behalf of the sending state for the purposes of the mission

Continued
(c) an action relating to succession in which the diplomatic agent is
involved as an executor, administrator, heir or legatee as private person and
not on behalf of the sending state.
(d) an action relating to any professional or commercial activity exercised
by the diplomatic in the receiving state outside his official functions.
4. The immunity of a diplomatic agent from the jurisdiction of receiving state
does not exempt him from the jurisdiction of the sending state.
Immunity from dues, taxes, and custom duties

Inviolability of premises
Article 22 of the Convention provides that:
1. The premises of the mission shall be inviolable. No agents of receiving
state may enter without the consent of the head of the mission.
2. The receiving state is under a special duty to take all appropriate steps to
protect the premises of mission against any intrusion or damage and to
prevent any disturbance of peace of the mission or impairment its dignity
(Tehran Hostages case, 1979).
3. The premises of the mission, their furnishings and other property
thereon and the means of transport of the mission shall be immune from
search, requisition, attachment or execution.

Inviolability of archives, documents, and official

correspondence
Art.27 (2) establishes the inviolability of the archives and documents of the
mission at any time and wherever they may be and also of the official
correspondence. It is also provided that diplomatic bag shall not opened or
detained.
Exception: Suspicious bags ( in 1989 the International Law Commission
adopted a set of rules concerning the diplomatic bags and diplomatic
couriers.)
Freedom of movement and security : Art.25
Freedom of Communication : Art. 26

Consular immunities
Art. 41 of the Vienna Convention on Consular Relations provides that
consular officers shall not be liable to arrest or detention pending trial ,
except in the case of a grave crime and pursuant to decision by the
competent judicial authority.
Art.31 provides that consular premises are given a substantial degree of
inviolability. There are not inviolable from entry by agents of the receiving
agents. The consular archives and documents are inviolable.
Art. 32 provides that consular are exempted from taxation and custom
duties in the same way as diplomats.
The members of the consulate are immune from the jurisdiction of judicial
and administrative authorities of the receiving states in respects of acts
performed in the exercise of consular functions.

Extent and nature of immunity

The diplomats are immune, not from the law, but from the jurisdiction of
the courts of the receiving state.
Requirement to follow the local law:
Article 41 states (1) it is the duty of all persons enjoying such
privileges and immunities to respect the laws and regulations of the
receiving state. They also have a duty not to interfere in the internal affairs
of that state.
(2) The premises of the mission must not be used in any manner
incompatible with the functions of mission as laid down in the present
Convention or by other rules or general international law or by any special
agreement between sending and receiving states.

Source of Immunities

Letter of Accreditation given by sending state

which to be shown to the receiving state at his
arrival

Special Missions
Special missions include inter alia a head of the state attending
a funeral abroad in his official capacity, a foreign minister
visiting his opposite number in another state for negotiations,
and a visit of a government trade delegation to conduct official
business.
These occasional missions have no special status in customary
law. Since they are the agents of states and are received by the
consent of host state, they benefit from the ordinary principles
based upon sovereign immunity.
The UNGA adopted and opened for signature the Convention on Special
Mission, 1969. This provides a fairly flexible code of conduct based on the
Vienna Convention on Diplomatic Relations with appropriate divergences.

Sanctions against the abuse of the immunities

Declaration of persona non-grata
Art. 9 states :
The receiving state may at any time and without having to explain its
decision, notify the sending state that the head of the mission or any
member of the diplomatic mission is persona non-grata or any other
member of the state is not acceptable. In any such case, the sending state
shall ,as appropriate, either recall the person concerned or terminate his
function with the mission.
Reasonable time should be given to a diplomat declared as persona nongrata to leave receiving country and the receiving country is not required to
explain the reason.
Waiver of immunities by the sending country
To severe the diplomatic relations

Continuedl

Optional Protocol to the Vienna Convention on

dispute resolution provides for compensation
to the victim.