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 UN Charter 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, 1962to 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.

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.

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 selfdefense:

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 self-defence. 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-defense 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 self-preservation 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 onprinciple 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

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

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.

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 cries.

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

(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 non-grata 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

Optional Protocol to the Vienna Convention on dispute resolution provides for

compensation to the victim.