Public International Law-Recits Notes Case Digests-Pandi-Module 5-7

PUBLIC INTERNATIONAL LAW | PANDI | RECITS NOTES
MODULE 5
NOTTEBOHM (SECOND PHASE) (LIECHTENSTEIN V GUATEMALA)
FACTS:
• Nottebohm is a German national who has made a centre of business activities in Guatemala which increased and prospered. He sometimes goes to Germany
for business trips and to other countries for holidays, and also pay a few visits to Leichstenstein where one of his brothers live.
• He continued to fix his abode in Guatemala. In 1939 – a month after the opening of the 2nd World War between Germany and Poland. He visited Liechstenstein
and applied for naturalization.
• He was then granted citizenship, obtained a passport and had it visa-ed with the Consul General of Guatemala. He returned to Guatemala where he resumed
his former business activities. Under German law, he lost his German citizenship.
• Guatemala who was formerly a neutral country, soon sided with the US. It took part a massive program in which they are to turn in persons who are of german
ancestry and citizenship.
• In spite of his Liechtenstein citizenship, the Guatemalan government treated Nottebohm as a German citizen. Pursuant to such, the Guatemalan government
confiscated its properties and denied entry for Nottebohm.
• The Liechtenstein government, acting on behalf of Nottebohm acting in conformity of his nationality, brought suit against Guatemala in the International Court
of Justice for what it argued was unjust treatment of him and the illegal confiscation of his property.
ARGUMENTS:
• LEICHTENSTEIN: Guatemala had done wrong against his national which was contrary to international law and because of this there must be restitution and
compensation on his citizen. Moreover, it cannot argue that it does not recognized its citizenship because he has already previously acknowledged the same.
• GUATEMALA: The claim is inadmissible on many grounds one of which is related to nationality. Contending that it is the bond of nationality between the state
and individual which alone confers upon the State the right of diplomatic protection.
ISSUE: WON IT IS ADMISSIBLE
RULING:
PRINCIPLE:
• The Codification of International law Article 1 relating to conflict of Nationality laws, laid down that the law enacted by a state for the purpose of determining
who are its nationals "shall be recognized by other States in so far as it is consistent with .... international custom, and the principles of law generally recognized
with regard to nationality". In the same spirit was Art. 5 of the same convention which refers to criteria of the individual's genuine connections for the purpose
of resolving questions of dual nationality which arise in third States.
• And that according to the practice of States, to arbitral and judicial decisions and to the opinions of writers, nationality is a legal bond having as its basis a
social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.
• THUS, it only entitles that State to exercise protection vis-à-vis another State, if it constitutes a translation into juridical terms of the individual’s connection
with the State which has made him its national.
FINDINGS:
• The Court stated the essential facts of the case and pointed out that Nottebohm always retained his family and business connections with Germany and that
there is nothing to indicate that his application for naturalization in Liechtenstein was motivated by any desire to dissociate himself from the Government of
his country. On the other hand, he had settled for 34 years in Guatemala, which was the centre of his interests and his business activities. He stayed there
until his removal as a result of war measures in and complains of Guatemala's refusal to readmit him. In contrast, his actual connections with Liechtenstein
were extremely tenuous. Nottebohm only went to that country when Guatemala refused to admit him. Thus, there was an absence of any bond of attachment
to Liechtenstein and a more close connection with Guatemala.
HELD:
• That naturalization was not based on any real prior connection with Liechtenstein, nor did it in any way alter the manner of life of the person upon whom it
was conferred in exceptional circumstances of speed and accommodation.
• There was the lack of the requisite of genuineness to an act of such importance. If it was indeed to be entitled respect by Guatemala. It was granted without
regard to the concept of nationality adopted in international relations.
PURPOSE OF NATURALIZATION:
• According to the court, naturalization was only asked for not for the purpose of obtaining a legal recognition in the country but only to enable him to substitute
his status as a national of a belligerent state and become a subject or a national of a neutral state.
• For this reason, the court held that the claim of Leichtenstein is inadmissible.
US V. YUNIS
FACTS:
• Yunis et. Al. boarded the Royal Jordanian Airlines Flight 402 before its scheduled departure to Lebanon. They hijacked the place and took control over it. They
wanted the plane to fly over to Tunis where the Arab League conference was being held, it wanted to have a meeting with the delegates for their ultimate
goal which was the removal of all Palestinians from Lebanon.
• They attempted to land on the country but were turned away when authorities blocked the airport runway. They made attempts but to no avail. Leaving no
choice but to return to Beruit. The hijackers released the passengers, held a press conference reiterating their demands, blew up the plane and fled from the
airport. Noting that one of the passengers were US Nationals.
• After such, US civil and military agencies planned for the arrest of Yunis. It lured Yunis onto a yacht in the eastern Mediterranean Sea with promises of drug
deal. FBI agents arrested him once the vessel entered international waters. They transferred him through the US Navy forces where he was interrogated for
several days. He was then transferred to Andrew Air Force Base, and from there taken to Washington DC where he was arraigned and charge of conspiracy,
hostage taking, and aircraft damage.
• Appellant claims that the court lacked personal jurisdiction over him because he was seized in violation of American law: Hostage Taking Act.
ISSUES/ARGUMENTS:
1 | ANDRIN – CABASAG - ODCHIGUE

1. The Hostage Taking Act cannot apply to an individual who is brought to the US by force since those convicted under such act must be found in the US and that
it should be read differently to avoid tension with international law because there were no treaty obligations that allowed such.
• HELD: His contention is not correct because the Act in plain language are independent bases for jurisdiction. He was not convicted because he was
found in the US because obviously he was not captured in the US and the crime was not committed in the US, but because 2 of the passengers on
that flight were US citizens. This according to the court, satisfied one of the sections to acquire jurisdiction over him regardless of WON he was
found in the US. Moreover, indeed there were no treaty obligations but the Congress intendment of that American Law was to execute the
International Convention against taking of Hostages which authorizes signatory state to exercise jurisdiction over person who take its nationals
hostage.
SHORT NOTE:
How did the court acquired jurisdiction to prosecute Yunis?
Based on 2 jurisdictional theories of international law: UNIVERSAL and PASSIVE PERSONAL PRINCIPLE.
❖ UNIVERSAL PRINCIPLE – states may prescribe and prosecute certain offenses recognized by the community of nations as of universal
concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and acts of terrorism.
❖ PASSIVE PERSONAL PRINCIPLE – state may punish non-nationals for crimes committed against its nationals outside of its territory, at
least where the state has a particularly strong interest in the crime.
What principle? PASSIVE PERSONAL PRINCIPLE.
2. That Hostage taking is not a recognized universal crime and that the passive personal principle authorizes hostage takers only where the victims were seized
because they were nationals of the prosecuting state.
• HELD: The court said that its duty is to enforce the law not to conform the law of the land to norms of customary international law. Statutes
inconsistent with principles of customary international law may well lead to international law violations. But within the domestic legal realm, that
inconsistent statute simply modifies or supersedes customary international law to the extent of the inconsistency. Moreover, as a rule, courts
should hesitate in giving penal statutes extraterritorial effect when there is absence of a clear congressional directive. BUT, taking into consideration
the case at bar, there is an unmistakable congressional intent which is consistent with treaty obligations which is to authorize prosecution of those
who take Americans hostage abroad no matter where the offense occurs or where the offender is found. BECAUSE of this, they can prosecute.
3. Even if the district court had jurisdiction to try him, it should have declined to exercise that jurisdiction in light of the government's allegedly outrageous
conduct in bringing him to the United States. It relied on a case where the court held that due process requires courts to divest themselves of personal
jurisdiction acquired through the government's deliberate, unnecessary and unreasonable invasion of the accused's constitutional rights.
• HELD: No merit because as reviewed on the facts in detail from the deception to the arrest, his injuries and hardships while in custody and the
delay between his arrest and arraignment in the United States in which the court determined if there were circumstances which voided his rights,
it found that while the government's conduct was neither "picture perfect" nor "a model for law enforcement behavior," the "discomfort and
surprise" to which appellant was subjected did not render his waiver invalid. Nothing in the record suggesting the sort of intentional, outrageous
government conduct necessary to sustain appellant's jurisdictional argument and that would support an actionable constitutional claim.
i. JUSTIFICATION: no shocking behavior characterized by abduction or brutality which would support an actionable constitutional claim.
HONG KONG GOVT. V. MUNOZ
FACTS:
• Central Bank executed gold loan/swap agreements with the same counter party, namely, Mocatta London. Munoz signed in behalf of the Central Bank while
Phil Wilson signed for Mocatta London.
o Munoz received a note from Mocatta London requesting that their accreditation as official counter party of the Central Bank be transferred to
Standard Chartered Bank (SCB) in view of an ongoing reorganization which will result in Mocatta London being a mere division of SCB. Before such
reorganization, both Mocatta London and Mocatta Hong Kong operated as independent subsidiaries of SCB.
o Monetary Board approved the transfer of the accreditation of Mocatta London as authorized counter party of the bank to SCB sometime in February
or March of 1993.
• BUT Even with the SCB reorganization, the gold [loan]/swap agreements continued to be contracted with Mocatta London.
o With the accreditation of SCB as the official counter party of the bank, however, CB did allow the dealers to transact minor trading transactions
with Mocatta Hong Kong.
o CB also allowed Mocatta Hong Kong to quote on the gold and silver location swaps CB periodically did to decongest its vaults at the gold plant in
Quezon City.
o The gold swap/loan agreements, however, continued to be rolled over with Mocatta London
• BECAUSE OF THIS - These agreements are the subject often (10) criminal cases filed against respondent-appellant in Hong Kong - i.e., three (3) counts
of accepting an advantage as an agent, contrary to Section 9(1) (a) of the Prevention of Bribery Ordinance, Cap. 201 and seven (7) counts of conspiracy to
defraud, contrary to the common law of HKSAR because Central Bank executed gold loan/swap agreements with the same counter party, namely, Mocatta
London. Munoz signed in behalf of the Central Bank while Phil Wilson signed for Mocatta London.
• Petitioner Hong Kong Special Administrative Region filed with the RTC of Manila a petition for the extradition of private respondent. The Regional Trial Court
granted the request for the extradition of Muñoz. Although the CA at first ruled that Munoz could be tried in Hong Kong for the crimes of conspiracy to defraud
and accepting an advantage as an agent, it granted his motion for reconsideration and promulgated the now assailed amended decision which it pronounced
that the crime of accepting an advantage as an agent should be excluded from the charges for which he would be tried in Hong Kong due to non-compliance
with the double criminality rule.
• Up for our consideration and resolution in the current case is whether or not the extradition request of the Government of Hong Kong Special Administrative
Region (HKSAR) sufficiently complied with the RP-HK Agreement and Presidential Decree No. 1069 (Philippine Extradition Law)
Issue: WON the CA’s conclusion was correct with regards to the crime of accepting an advantage as an agent did not comply with the double criminality rule
NOTES:
EXTRADITION - the surrender by one nation to another of an individual accused or convicted of an offense outside of its own territory, and within the territorial jurisdiction
of the other, which, being competent to try and to punish him, demands the surrender.
• It is not- part of customary international law, although the duty to extradite exists only for some international crimes. Thus, a state must extradite only when
obliged by treaty to do so.
• The right of a state to successfully request the extradition of a criminal offender arises from a treaty with the requested state. Absent the treaty, the duty to
surrender a person who has sought asylum within its boundaries does not inhere in the state, which, if it so wishes, can extend to him a refuge and protection
even from the state that he has fled.
• Indeed, in granting him asylum, the state commits no breach of international law. But by concluding the treaty, the asylum state imposes limitations on itself,
because it thereby agrees to do something it was free not to do.
o The extradition treaty creates the reciprocal obligation to surrender persons from the requested state's jurisdiction charged or convicted of certain
crimes committed within the requesting state's territory, and is of the same level as a law passed by the Legislatures of the respective parties.
RELEVANT LAWS
• PRESIDENTIAL DECREE NO. 1069 defines the general procedure for the extradition of persons who have committed crimes in a foreign country, and lays down
the rules to guide the Executive Department and the courts of the Philippines on the proper implementation of the extradition treaties to which the country
is a signatory.
o Nevertheless, the particular treaties entered into by the Philippine Government with other countries primarily govern the relationship between
the parties.
• RP-HK AGREEMENT is still in full force and effect as an extradition treaty. The procedures therein delineated regulate the rights and obligations of the Republic
of the Philippines and the HKSAR under the treaty in the handling of extradition requests.
RULING:
For purposes of the extradition of Munoz, the HKSAR as the requesting state must establish the following six elements, namely: (1) there must be an extradition treaty in
force between the HKSAR and the Philippines; (2) the criminal charges that are pending in the HKSAR against the person to be extradited; (3) the crimes for which the
person to be extradited is charged are extraditable within the terms of the treaty; (4) the individual before the court is the same person charged in the HKSAR; (5) the
evidence submitted establishes probable cause to believe that the person to be extradited committed the offenses charged; and (6) the offenses are criminal in both the
HKSAR and the Philippines (double criminality rule).
APPLICATION:
The first five elements were obtained.
1. the RP-Hong Kong Agreement subsists and has not been revoked or terminated by either parties
2. there have been 10 criminal cases filed against Muñoz in Hong Kong, specifically: three counts of accepting an advantage as an agent and seven counts of
conspiracy to defraud
3. the crimes of accepting an advantage as an agent and of conspiracy to defraud were extraditable under the terms of the RP-Hong Kong Agreement.
4. Muñoz was the very same person charged with such offenses based on the documents relied upon by the DOJ, and the examination and determination of
probable cause by the RTC that led to the issuance of the order for the arrest of Muñoz.
5. there is probable cause to believe that Muñoz committed the offenses charged.
HOWEVER, it was as to the sixth element that the CA took exception as not having been established. Although the crime of conspiracy to defraud was included among
the offenses covered by the RP-Hong Kong Agreement, and the RTC and the CA have agreed that the crime was analogous to the felony of estafa through false pretense as
defined and penalized under Article 315(2) of the Revised Penal Code, it was disputed whether or not the other crime of accepting an advantage as an agent was also
punished as a crime in the Philippines. As such, the applicability of the double criminality rule became the issue.
WON IS A DOUBLE CRIMINALITY RULE?
PRINCIPLE:
DOUBLE CRIMINALITY RULE - Under the double criminality rule, the extraditable offense must be criminal under the laws of both the requesting and the requested states".
This simply means that the requested state comes under no obligation to surrender the person if its laws do not regard the conduct covered by the request for extradition
as criminal.aw
APPLICATION:
It cannot be argued that Section 9(1)(a) of the POBO encompasses both private individuals and public servants. A Section 9(1)(a) offense has a parallel POBO provision
applicable to public servants. Considering that the transactions were entered into by and in behalf of the Central Bank of the Philippines, an instrumentality of the
Philippine Government, Munoz should be charged for the offenses not as a regular agent or one representing a private entity but as a public servant or employee of the
Philippine Government. Yet, because the offense of accepting an advantage as an agent charged against him in the HKSAR is one that deals with private sector bribery,
the conditions for the application of the double criminality rule are obviously not met. Accordingly, the crime of accepting an advantage as an agent must be dropped
from the request for extradition.
• SHORT SUMMARY: The court said yes POBO encompasses both private and public servants but they are charging Munoz in his private capacity which is in fact
not the case because Munoz had committed the crime in his public capacity. Bribery cannot be committed as a crime by private individuals here in the PH.
Hence, no double criminality.
CONCLUSION:
Uphold CA conclusion.
Conformably with the principle of specialty embodied in Article 17 of the RP-HK Agreement, Muñoz should be proceeded against only for the seven counts of conspiracy
to defraud. As such, the HKSAR shall hereafter arrange for Muñoz's surrender within the period provided under Article 15 of the RP-HK Agreement.
BELGIUM V. SENEGAL
HISTORY:
• Mr. Hissène Habré was President of the Republic of Chad for eight years, during which time large-scale violations of human rights were allegedly committed,
including arrests of actual or presumed political opponents, detentions without trial or under inhumane conditions, mistreatment, torture, extrajudicial
executions and enforced disappearances.
• Overthrown on 1 December 1990, Mr. Habré requested political asylum from the Senegalese Government, a request which was granted;
• From 25 January 2000 onwards, a number of proceedings relating to crimes alleged to have been committed during Mr. Habré’s presidency were instituted
before both Senegalese and Belgian courts by Chadian nationals, Belgian nationals of Chadian origin and persons with dual - 2 - Belgian-Chadian nationality,
together with an association of victims.
• The issue of the institution of proceedings against Mr. Habré was also referred by Chadian nationals to the United Nations Committee against Torture and the
African Court on Human and People’s Rights.

INSTANT CASE:
• Belgium filed in the Registry of the Court an Application instituting proceedings against Senegal in respect of a dispute concerning “Senegal’s compliance with
its obligation to prosecute Mr. H[issène] Habré[, former President of the Republic of Chad, for acts including crimes of torture and crimes against humanity
which are alleged against him as perpetrator, co-perpetrator or accomplice,] or to extradite him to Belgium for the purposes of criminal proceedings”.
• In its Application, Belgium based its claims on the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
of 10 December 1984 (hereinafter “the Convention against Torture” or the “Convention”), as well as on customary international law.
• Belgium filed an Application instituting a proceeding against Senegal relating to Mr. Hissène Habré, the former President of Chad and resident in Senegal since
being granted political asylum by the Senegalese Government in 1990.
• Belgium submitted that, by failing to prosecute Mr. Habré for certain acts he was alleged to have committed during his presidency, including acts of torture
and crimes against humanity, or to extradite him to Belgium, Senegal had violated the so-called obligation aut dedere aut judicare (that is to say, “to prosecute
or extradite”) provided for in Article 7 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and in customary
international law.
JURISDICTION CASE
MODULE 6
GERMANY V. ITALY
FACTS:
The case rooted when there was a decision by the Greek Courts against Germany. This originated from the acts of German armed forces and other organs of Germany
which concerned large scale killings of civilians, massacres and deportation for forced labor. Now, the thing is this decision by the Court of Appeals in Florence declared
that this judgement by Greek claimants is enforceable in Italy and ordered Germany to pay them compensation through Villa Vigoni which was a german property located
in Italy.
Germany requests that the ICJ should find that:
1. Italy failed to respect the jurisdictional immunity which Germany enjoys under international law by allowing civil claims to be brought against it in the Italian
courts, seeking reparation for injuries caused by violations of international humanitarian law committed by the German Reich during the Second World War
2. Italy has also violated Germany’s immunity by taking measures of constraint against Villa Vigoni, German State property situated in Italian territory
3. Italy breached Germany’s jurisdictional immunity by declaring enforceable in Italy decisions of Greek civil courts rendered against Germany on the basis of
acts similar to those which gave rise to the claims brought before Italian courts.
ISSUES AND RULINGS:
WON Italy failed to respect the jurisdictional immunity which Germany enjoys under international law?
YES IT FAILED. Court rejected all of Italy’s arguments.
Italy argued that Germany was not entitled to immunity base on the:
1. Territorial tort principle
o Italy contends that States are no longer entitled to immunity in respect to the acts committed by Germany because it this is an exception to state
immunity.
o HELD: The Court concluded that customary international law continues to require that a State be accorded immunity in proceedings for torts
allegedly committed on the territory of another State by its armed forces and other organs of State in the course of conducting an armed conflict.
It based its conclusion by the judgments of the European Court of Human Rights.
▪ Finding that state practice in the form of the judgments of national courts regarding State immunity in relation to the acts of armed
forces. And that the practice supports the proposition that State immunity for acta jure imperii continues to extend to civil proceedings
for acts occasioning death, personal injury or damage to property committed by the armed forces and other organs of a State in the
conduct of armed conflict, even if the relevant acts take place on the territory of the forum State which is accompanied by opinio juris,
as demonstrated by the positions taken by States and the jurisprudence of a number of national courts which have made clear that they
considered that customary international law required immunity.
2. There are three strands to the argument:
o Firstly, Italy contends that the acts which gave rise to the claims constituted serious violations of the principles of international law applicable to
the conduct of armed conflict, amounting to war crimes and crimes against humanity.
▪ HELD: The Court concludes that, under customary international law as it presently stands, a State is not deprived of immunity by reason
of the fact that it is accused of serious violations of international human rights law or the international law of armed conflict. In reaching
that conclusion, the Court emphasizes that it is addressing only the immunity of the State itself from the jurisdiction of the courts of
other States; the question of whether, and if so to what extent, immunity might apply in criminal proceedings against an official of the
State is not in issue in the present case.
o Secondly, Italy maintains that the rules of international law thus contravened were peremptory norms (jus cogens).
▪ HELD: The Court is of the opinion that there is no conflict between a rule, or rules, of jus cogens, and the rule of customary law which
requires one State to accord immunity to another. Assuming for this purpose that the rules of the law of armed conflict which prohibit
the murder of civilians in occupied territory, the deportation of civilian inhabitants to slave labour and the deportation of prisoners of
war to slave labour are rules of jus cogens, the Court takes the view that there is no conflict between those rules and the rules on State
immunity. The two sets of rules address different matters. The rules of State immunity are procedural in character and are confined to
determining whether or not the courts of one State may exercise jurisdiction in respect of another State. They do not bear upon the
question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful. That is why the application
of the contemporary law of State immunity to proceedings concerning events which occurred in 1943-1945 does not infringe the
principle that law should not be applied retrospectively to determine matters of legality and responsibility
o Thirdly, Italy argues that the claimants having been denied all other forms of redress, the exercise of jurisdiction by the Italian courts was necessary
as a matter of last resort.
▪ HELD: The Court considers that it cannot accept Italy’s contention that the alleged shortcomings in Germany’s provisions for reparation
to Italian victims entitled the Italian courts to deprive Germany of jurisdictional immunity. It can find no basis in the State practice from
which customary international law is derived that international law makes the entitlement of a State to immunity dependent upon the
existence of effective alternative means of securing redress. Neither in the national legislation on the subject, nor in the jurisprudence
of the national courts which have been faced with objections based on immunity is there any evidence that entitlement to immunity is
subjected to such a precondition.
WON the charge on Villa Vigoni was in violation of Germany’s immunity from enforcement?
Yes. The registration of a legal charge on Villa Vigoni constituted a violation by Italy of its obligation to respect immunity owed to Germany.
PRINCIPLE: The court held that immunity from enforcement enjoyed by States in regard to their property situated on a foreign territory goes further than the jurisdictional
immunity enjoyed by those same States before foreign courts. Even if there is a judgement lawfully rendered against a foreign state that in such circumstance, it cannot
invoke its immunity from jurisdiction it does not follow ipso facto that the state against which the judgement has been given can be the subject of measures of constraint
on a third state. Simply stated, a waiver of jurisdictional immunity before a foreign court does not mean that the state has also waived its immunity from enforcement
with regards to a property belonging to it, which is situated in a foreign territory. So, it must be understood in a strict sense that it is a right of a state not to be subject of
judicial proceedings in the courts of another state.
Moving forward, the court ruled on the issue if there was a violation of immunity from enforcement. It found that there is one condition tho that has to be satisfied before
any measures of constraint maybe taken against the property which belongs to a foreign state and that is or Simply stated that an exception for it not to constitute a
violation of immunity from enforcement is: that the property in question must be in use for an activity not pursuing government non-commercial purposes or that the
state which owns the property has expressly consented to the taking of a measure of constraint or that the state has allocated the property in question for the satisfaction
of a judicial claim.
APPLICATION: In the case at bar, however, it was found that Villa Vigoni was used for governmental purposes that are entirely non-commercia. It is in fact the seat of a
cultural center intended to promote cultural exchanges between Germany and Italy. Hence, it constituted a violation by Italy of its obligation to respect the immunity
owned to Germany. Particularly on its immunity from enforcement.
WON there was a violation of jurisdictional immunity when Italian courts declared enforceable in Italy judgements rendered by Greek courts against Germany?
PRINCIPLE: The court held that when there exists a case just like the this, there must be an application for exequatur – official recognition of a foreign judgement
authorizing them to exercise duties of office – against a third state in order for it to exercise jurisdiction.
• Purpose of exequatur – not to decide on the merits of a dispute but simply to render an existing judgement enforceable on the territory of a state other than
that of the court which ruled on the merits. Nonetheless, in granting or refusing exequatur, the court exercises jurisdictional power which results in the foreign
judgement being given effects corresponding to those of a judgement rendered on the merits in the requested State.
Following such, the court seised of an application of a exequatur of a foreign judgement rendered against a third state it has to ask itself whether the respondent state
enjoys immunity from jurisdiction with regards to the nature of the case, before instituting the proceedings.
APPLICATION: In the case at bar, the court concluded that the decision of the Italian courts declaring enforceable in Italy from judgements rendered by Greek courts
against Germany in proceedings arising out of the Distomo massacre which happened in Greece, constituted a violation by Italy of its obligation to respect the jurisdictional
immunity of Germany.
OLEYNIKOV V. RUSSIA
FACTS:
• Mr. Oleynikov was a Russian national. The very root of the case is when he lent money to North Korea’s Trade for 1,500 USD.
• DPRK failed to repay the debt. So he sent several letters of claim which was left unanswered. To seek relief, its counsel wrote to the Russian Ministry of External
Affairs for assistance in settling the matter.
• But he was only told that it was constituent unit of the DPRK Embassy and thus because of this it enjoyed immunity from suit and immunity from attachment
or execution in accordance with Art. 435 of the 1964 Code of Civil Procedure and that if he was to file for a claim he must obtain consent.
• So, what he did was wrote to North Korea asking for their consent but was only seenzoned. He lodged then a claim against North Korea with the Russian
District Court for repayment of debt and contended that Russia should be responsible for the actions of foreign diplomat.
• Russia, however, dismissed the complaint on the ground of alleged immunity enjoyed by the counselor. Hence, after exhausting all his remedies in the national
arena, he went to the European Court of Human Rights.
• TAKE NOTE: Now, even though the issue was with regards to a due and demandable debt against North Korea, Mr. Oleynikov did not go to the European Court
to seek repayment of debt. He went there to file a case against his country, Russia for the reason that Russia’s refusal to examine his claim by the Russian
courts which constituted a violation of his rights guaranteed by Article 6 of the Convention which provides entitlement to a fair hearing.
ISSUE: Won there was a violation of article 6
RULING:
LEGAL PRINCIPLE:
• The court here held that in cases where the application of the rule of State immunity from jurisdiction, it restricts the exercise of the right of access to court,
therefore, the Court must ascertain whether the circumstances of the case justified such a restriction. That it must pursue a legitimate aim and that State
immunity was developed in international law out of the principle par in parem non habet imperium, by virtue of which one State could not be subject to the
jurisdiction of another. Here, the court had taken the view that the grant of immunity to a State in civil proceedings pursues the legitimate aim of complying
with international law to promote comity and good relations between States through the respect of another State’s sovereignty.
• In addition, the impugned restriction must also be proportionate to the aim pursued. The court observes that the application of absolute immunity for many
years has been eroded. Thus, the convention has adopted the Draft Articles of 1991, which is of the view under Art. 10 that concerning commercial transactions
it endorses the principle of restrictive immunity. Thus, a State cannot rely upon immunity from jurisdiction if it engages in a commercial transaction with a
foreign natural or juridical person.
APPLICATION:

• Firstly, court examined whether the limitation pursued a legitimate aim. It found that it did. It considered that the grant of immunity to a State in the present
case pursued the legitimate aim of complying with international law in order to promote comity and good relations between States through the respect of
another State’s sovereignty.
• Secondly, court examined whether the impugned restriction on the applicant’s right of access to court was proportionate to the aim pursued. The court found
for Draft Articles which is now enshrined under the 2004 Convention apply under CIL even if it was not ratified provided that the country has not opposed to
it either. Russia on its part, it has not ratified but has not opposed it either. Moreover, it found that prior to signing of the convention, it appears that Russia
has already accepted restrictive immunity as a principle of customary international law. Therefore, it is possible to affirm that the provisions of the International
Law Commission’s 1991 Draft Articles and the 2004 Convention applies to Russia under customary international law
• Lastly, because of this, the court now has taken into consideration of whether the right of access to court, within the meaning of Article 6 § 1, was respected.
It found that the domestic courts returned the applicants claim without examination or without undertaking an analysis of the nature of the transaction. They
made no effort in determining whether claim related to acts of the NK performed in the exercise of its sovereign authority or as a party to a transaction of a
private law nature. It only made reference about it being an organ of the state therefore absolute immunity. It did not even take into consideration Article 3
which defined the responsibility of the State for transactions entered into by the Trade Representation, nor Article 4, which specifically deals with immunities
of the Trade Representation. Article 4 even provides that all disputes arising out of foreign trade transactions concluded or guaranteed by the Trade
Representation within the territory of the State of sojourn to the jurisdiction of the latter’s courts. Yet the domestic courts failed to take this provision into
account or to consider whether the transaction underlying the claim fell within its scope.
CONCLUSION: The domestic courts refused to examine the applicant’s claim, by rejecting the applicant’s claim without examination of the essence of the dispute and
without giving relevant and sufficient reasons, and notwithstanding the applicable provisions of international law, the Russian courts failed to preserve a reasonable
relationship of proportionality. They thus impaired the very essence of the applicant’s right of access to court.
CASE: Arrest Warrant of 11 April 2000 (Congo v Belgium), Judgment [2002], ICJ Rep 3
SUMMARY:
Belgium issued and circulated internationally, an arrest warrant against the incumbent Foreign Minister of Congo, based on universal jurisdiction. Congo asked the ICJ
to decide that Belgium violated international law because it did not respect the inviolability and immunities of the foreign minister from criminal process before
Belgian courts.
The issuance and circulation of the arrest warrant violated Belgium’s international obligations towards the Congo. Belgium failed to respect, and infringed, Yerodia’s
immunity and the inviolability enjoyed by him under international law.
IMPORTANT PRINCIPLE:
It is an established principle of international law that Heads of States and Governments, Foreign Ministers and Diplomatic and Consular agents enjoys immunities
from civil and criminal jurisdictions of other States.
Immunity does not mean impunity. The person continues to be individually responsible for the crime he committed.
Once he ceases to be the Foreign Minister, he no longer enjoys immunity before foreign courts for private acts committed during his tenure as Foreign Minister; and
for all acts committed before or after his tenure in office; and prosecution before an international criminal body, with the necessary jurisdiction (for example the ICC).
Note: The Congo placed two separate legal questions before the Court at the time of its application to the ICJ. It contested Belgium‘s basis of jurisdiction – universal
jurisdiction – stating that it violated the principle of sovereign equality (see para 17 of the judgement). Both the Congo and the Court did not discuss this in its final
submissions and judgement (see paras 41 – 43, 45, 46).
FACTS:
• 11 April 2000 - a Belgian Magistrate issued an international arrest warrant against Mr. Yerodia - the Foreign Minister of the Congo.
• The Court issued the warrant based on universal jurisdiction.
• It accused Yerodia of inciting racial hatred. These speeches, allegedly, incited the population to attack Tutsi residents in Rwanda, which resulted in many
deaths. The warrant alleged that Yerodia committed grave breaches of the Geneva Conventions of 1949 and its Additional Protocols and crimes against
humanity.
• Belgium sent the arrest warrant to Interpol and circulated it to all States, including to the Congo. The warrant asked States to arrest, detain, and extradite
Yerodia to Belgium.
• 17 October 2000 - the Democratic Republic of the Congo (DRC) filed an Application instituting proceedings against Belgium concerning a dispute over an
international arrest warrant issued on 11 April 2000.
• CONGO:
o In its submissions presented at public hearings, requested the Court to adjudge and declare that Belgium had violated the rule of customary
international law concerning the inviolability and immunity from criminal process of incumbent foreign ministers and that it should be required
to recall and cancel that arrest warrant and provide reparation for the moral injury to the DRC.
• BELGIUM:
o The Minister does not enjoy immunity because he is accused of having committed war crimes or crimes against humanity - Belgium relied on
the Pinochet Case (decided by the House of Lords, UK), the Qaddafi Case (decided by the French Court of Cassation) and Statutes of International
Criminal Court and Tribunals.
o raised objections relating to jurisdiction, mootness and admissibility.
• November 2000 – (after Belgium issued the warrant) Yerodia became the Education Minister.
• At the time of the ICJ’s judgement, he did not hold a Ministerial post in Congo.
• 14 February 2002 – (Judgement) the Court rejected the objections raised by Belgium and declared that it had jurisdiction to entertain the application of
the DRC. With respect to the merits, the Court observed that, in the case, it was only questions of immunity from criminal jurisdiction and the inviolability
of an incumbent Minister for Foreign Affairs that it had to consider, on the basis, moreover, of customary international law.

ISSUE:
W/N Belgium violated principles of customary international law concerning the absolute inviolability and immunity from criminal process of an incumbent Foreign
Minister, when it issued and internationally circulated the arrest warrant. (YES)
If yes, did it violate the principle of sovereign equality amongst States; does this alleged unlawfulness preclude States who received the warrant from exercising it;
should the Court order reparations; and should Belgium recall and cancel its arrest warrant?
RULING:
It is an established principle of international law that Heads of States and Governments, Foreign Ministers and Diplomatic and Consular agents enjoys immunities
from civil and criminal jurisdictions of other States.
In customary international law, the immunities accorded to Ministers for Foreign Affairs are not granted for their personal benefit, but to ensure the effective
performance of their functions on behalf of their respective States.
As the incumbent Foreign Minister, Yerodia enjoys full immunity (during his tenure) for acts performed, both, in an official capacity and in a private capacity from
criminal jurisdiction and inviolability. The immunity applies regardless of whether the Minister is on foreign territory in an official or private visit. This immunity
extends not only to his actions during his tenure; but, also to his actions before he became Foreign Minister.
“Thus, if a Minister for Foreign Affairs is arrested in another State on a criminal charge, he or she is thereby prevented from exercising the functions of his or her
office. The consequences of such impediment to the exercise of those official functions are equally serious…. Furthermore, even the mere risk that, by travelling to or
transiting another State a Minister for Foreign Affairs might be exposing himself or herself to legal proceedings could deter the Minister from travelling internationally
when required to do so for the purposes of the performance of his or her official functions.”
The Court held that there was no exception in customary international law to the absolute immunity of an incumbent Foreign Minister.
The Court further observed that the rules governing the jurisdiction of national courts must be carefully distinguished from those governing jurisdictional immunities.
The immunities under customary international law, including those of Ministers for Foreign Affairs, remained opposable before the courts of a foreign State, even
where those courts exercised an extended criminal jurisdiction on the basis of various international conventions on the prevention and punishment of certain serious
crimes.
However, the Court emphasized that the immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs did not mean that they enjoyed impunity in
respect of any crimes they might have committed, irrespective of their gravity. While jurisdictional immunity was procedural in nature, criminal responsibility was a
question of substantive law. Jurisdictional immunity might well bar prosecution for a certain period or for certain offences; it could not exonerate the person to whom
it applied from all criminal responsibility. The Court then spelled out the circumstances in which the immunities enjoyed under international law by an incumbent or
former Minister for Foreign Affairs did not represent a bar to criminal prosecution.
After examining the terms of the arrest warrant of 11 April 2000, the Court noted that the issuance, as such, of the disputed arrest warrant represented an act by the
Belgian judicial authorities intended to enable the arrest on Belgian territory of an incumbent Minister for Foreign Affairs, on charges of war crimes and crimes against
humanity.
• Warrant - its mere issuance constituted a violation of an obligation of Belgium towards the DRC, in that it had failed to respect the immunity which Mr.
Yerodia enjoyed as incumbent Minister for Foreign Affairs.
• international circulation of the disputed arrest warrant from June 2000 by the Belgian authorities - constituted a violation of an obligation of Belgium
towards the DRC, in that it had failed to respect the immunity of the incumbent Minister for Foreign Affairs.
Finally, the Court considered that its findings constituted a form of satisfaction which would make good the moral injury complained of by the DRC. However, the
Court also held that, in order to re-establish “the situation which would, in all probability have existed if [the illegal act] had not been committed”, Belgium must, by
means of its own choosing, cancel the warrant in question and so inform the authorities to whom it had been circulated.
https://ruwanthikagunaratne.wordpress.com/2012/07/27/belgian-arrest-warrant-case-summary/
https://www.icj-cij.org/en/case/121
CASE: United States Diplomatic and Consular Staff in Tehran (United States v Iran), Judgment [1980] ICJ Rep 3
OVERVIEW:
United States filed to the Court by Application following the occupation of its Embassy in Tehran by Iranian militants on 4 November 1979, and the capture and holding
as hostages of its diplomatic and consular staff. The Court found that Iran had violated and was still violating obligations owed by it to the United States under
conventions in force between the two countries and rules of general international law, that the violation of these obligations engaged its responsibility, and that the
Iranian Government
• was bound to secure the immediate release of the hostages,
• to restore the Embassy premises, and
• to make reparation for the injury caused to the United States Government.
The Court pointed out that while, during the events of 4 November 1979, the conduct of militants could not be directly attributed to the Iranian State — for lack of
sufficient information — that State had however done nothing to prevent the attack, stop it before it reached its completion or oblige the militants to withdraw from
the premises and release the hostages. The Court noted that, after 4 November 1979, certain organs of the Iranian State had endorsed the acts complained of and
decided to perpetuate them, so that those acts were transformed into acts of the Iranian State. The Court gave judgment, notwithstanding the absence of the Iranian
Government and after rejecting the reasons put forward by Iran in two communications addressed to the Court in support of its assertion that the Court could not
and should not entertain the case.
There was no more fundamental prerequisite for relations between States than the inviolability of diplomatic envoys and embassies. The institution of diplomacy, the
Court continued, has proved to be "an instrument essential for effective Co-operation in the international community, and for enabling States, irrespective of their
differing constitutional and social systems, to achieve mutual understanding and to resolve their differences by peaceful means" (I. C.J. Reports 1979, p. 19)
IMPORTANT PRINCIPLES:
Thus, after solemnly proclaiming the inviolability of the premises of a diplomatic mission, Article 22 of the 1961 Convention continues in paragraph 2:
"The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to
prevent any disturbance of the peace of the mission or impairment of its dignity." (Emphasis added.)
So, too, after proclaiming that the person of a diplomatic agent shall be inviolable, and that he shall not be liable to any form of arrest or detention, Article 29 provides:
"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. " (Emphasis
added.)
FACTS:
• On 4 November 1979 there was an armed attack by Iranian students on the United States Embassy in Tehran and they overtook it.
• The students, belonging to the Muslim Student Followers of the Imam's Line, did this as an act of support to the Iranian Revolution.
• More than sixty American diplomats and citizens were held hostage for 444 days (until January 20, 1981). Some of the hostages were released earlier, but
52 hostages were held hostage until the end.
• Although Iran had promised protection to the U.S. The guards disappeared during the takeover and the government of Iran did not attempt to stop it or
rescue the hostages.
• The U.S. arranged to meet with Iranian authorities to discuss the release of the hostages, but Ayatollah Khomeini (the leader of the Iranian Revolution)
forbade officials to meet them.
• The U.S. ceased relations with Iran, stopped U.S. exports, oil imports, and Iranian assets were blocked.
• It is to be regretted that the Iranian Government has not appeared before the Court in order to put forward its arguments on the questions of law and of
fact which arise in the present case; and that, in consequence, the Court has not had the assistance it might have derived from such arguments or from
any evidence adduced in support of them.
• US:
o Gov’t of Iran, in tolerating, encouraging, and failing to prevent and punish the conduct described in the preceding Statement of Facts, violated
its international legal obligations to the United States
o pursuant to international legal obligations, the Gov’t of Iran should secure the release of all United States nationals currently being detained
within the premises of the United States Embassy in Tehran and to assure that all such persons and al1 other United States nationals in Tehran
are allowed to leave Iran safely.
o Gov’t of Iran should pay reparation for the foregoing violations of Iran's international legal obligations to the United States,
o Gov’t of Iran , submit to its competent authorities for the purpose of prosecution those persons responsible for the crimes committed against
the premises and staff of the United States Embassy and against the premises of its Consulates
• IRAN:
o In its letter of 9 December 1979, considers that the Court cannot and should not take cognizance of the case - this question only represents a
marginal and secondary aspect of an overall problem, one such that it cannot be studied separately, and which involves, inter alia, more than
25 years of continual interference by the United States in the internal affairs of Iran, the shameless exploitation of our country, and numerous
crimes perpetrated against the Iranian people, contrary to and in conflict with all international and humanitarian norms.
o in its letter of 9 December 1979 drew attention to what it referred to as the "deep rootedness and the essential character of the Islamic
Revolution of Iran, a revolution of a whole oppressed nation against its oppressors and their masters". The examination of the "numerous
repercussions" of the revolution, it added, is "a matter essentially and directly within the national sovereignty of Iran".
ISSUE:
W/N Iran had violated, and continued to violate, its obligations under the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations,
in the seizure and hostage-taking of members of United States diplomatic and consular staff in Iran.
W/N any United States diplomatic or consular staff member may be detained by Iran to be subjected to or participate in any form of judicial proceedings.
RULING:
The United States' claims here in question concern alleged violations by Iran of its obligations under several articles of the Vienna Conventions of 1961 and 1963 with
respect to the privileges and immunities of the personnel, the inviolability of the premises and archives, and the provision of facilities for the performance of the
functions of the United States Embassy and Consulates in Iran. In so far as its claims relate to two private individuals held hostage in the Embassy, the situation of
these individuals falls under the provisions of the Vienna Convention of 1961 guaranteeing the inviolability of the premises of embassies, and of Article 5 of the 1963
Convention concerning the consular functions of assisting nationals and protecting and safeguarding their interests. By their very nature all these claims concern the
interpretation or application of one or other of the two Vienna Conventions.
No suggestion has been made that the militants, when they executed their attack on the Embassy, had any form of official status as recognized "agents" or organs of
the Iranian State. Their conduct might be considered as itself directly imputable to the Iranian State only if it were established that, in fact. on the occasion in question
the militants acted on behalf on the State, having been charged by some competent organ of the Iranian State to carry out a specific operation. The information
before the Court does not, however, suffice to establish with the requisite certainty the existence at that time of such a link between the militants and any competent
organ of the State.
The conclusion just reached by the Court that the militant attacks cannot be considered as in itself imputable to the Iranian State does not mean that Iran is, in
consequence, free of any responsibility in regard to those attacks; for its own conduct was in conflict with its international obligations. By a number of provisions of
the Vienna Conventions of 196 1 and 1963, Iran was placed under the most categorical obligations, as a receiving State, to take appropriate steps to ensure the
protection of the United States Embassy and Consulates, their staffs, their archives, their means of
communication and the freedom of movement of the members of their staffs.
Thus, after solemnly proclaiming the inviolability of the premises of

a diplomatic mission, Article 22 of the 1961 Convention continues in paragraph 2:
"The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to
prevent any disturbance of the peace of the mission or impairment of its dignity." (Emphasis added.)
So, too, after proclaiming that the person of a diplomatic agent shall be inviolable, and that he shall not be liable to any form of arrest or detention, Article 29 provides:
"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. " (Emphasis
added.)
In the view of the Court, the obligations of the Iranian Government here in question are not merely contractual obligations established by the Vienna Conventions of
1961 and 1963, but also obligations under general international law.
Iranian authorities made no effort to compel or even to persuade the militants to withdraw from the Embassy and to free the diplomatic and consular staff whom
they had made prisoner - constituted clear and serious violation of Iran's obligations to the United States under the provisions of Article 22, paragraph 2, and Articles
24,25,26, 27 and 29 of the 1961 Vienna Convention on Diplomatic Relations, and Articles 5 and 36 of the 1963 Vienna Convention on Consular Relations.
The facts of this case establish to the satisfaction of the Court that on 4 November 1979 and thereafter the Iranian authorities have withheld from the Chargé d'affaires
and the two members of his staff the necessary protection and facilities to permit them to leave the Ministry in safety. Accordingly, it appears to the Court that with
respect to these three members of the United States' mission the Iranian authorities have committed a continuing breach of their obligations under Articles 26 and
29 of the 1961 Vienna Convention on Diplomatic Relations. It further appears to the Court that the continuation of that situation over a long period has, in the
circumstances, amounted to detention in the Ministry.
In the present case, the Iranian Government did not break of diplomatic relations with the United States nor declared, or indicated any intention to declare, any
member of the United States diplomatic or consular staff in Tehran persona non grata.
The frequency with which at the present time the principles of international law governing diplomatic and consular relations are set at naught by individuals or groups
of individuals is already deplorable. But this case is unique and of very particular gravity because here it is not only private individuals or groups of individuals that
have disregarded and set at naught the inviolability of a foreign embassy, but the government of the receiving State itself.
The Court Decides that

1. the Islamic Republic of Iran, by the conduct which the Court has set out in this Judgment, has violated in several respects, and is still violating, obligations
owed by it to the United States of America under international conventions in force between the two countries, as well as under long-established rules of
general international law.
2. no member of the United States diplomatic or consular staff may be kept in Iran to be subjected to any form of judicial proceedings or to participate in
them as a witness.
https://www.icj-cij.org/en/case/64
https://opil.ouplaw.com/view/10.1093/law:icgj/124icj80.case.1/law-icgj-124icj80
JOURNAL: Rosalyn Higgins, The Abuse of Diplomatic Privileges and Immunities: Recent United Kingdom Experience, 79 American Journal of Int’l L. 641).
We have good compliance with the Law of diplomatic immunity - reciprocal benefits of compliance are visible and manifest.
Diplomatic immunity is an exception to the general rule of territorial jurisdiction.
INVIOLABILITY OF THE PREMISES OF AN EMBASSY - absolute
The decision not to search the diplomatic bags was political and not legal.
*Read criminal immunities and personal immunities below*.
Above all, those remedies available for abuse in the Convention--especially the power to limit the size of the mission, to declare a diplomat persona non grata--should
be used with firmness and vigor, and not just reserved for matters related to espionage.
From Vega Notes:
The term ‘diplomat’ is derived from the French term ‘diplomate’, which indicates a person whose task is to negotiate on behalf of the state. Diplomats enjoy a special
status both at home as well as abroad. It is said that the concept of diplomatic immunity has long-standing roots in international practice, and that the customary
rules of diplomatic immunity are as old as diplomacy. Early historians trace the origins of diplomacy from the regions of the Mediterranean, the Middle East, China
and India. In this connection, it is useful to provide an overview of the historical evolution of the concept of diplomatic immunity, both in India and in other legal
systems.
What are the diplomatic privileges and immunities?

Diplomatic immunity is a form of legal immunity that ensures diplomats are given safe passage and are considered not susceptible to lawsuit or prosecution under
the host country's laws, although they may still be expelled.
What privileges do Ambassadors have?

Top diplomatic officers have full immunity, as do their deputies and families. That means ambassadors can commit just about any crime—from jaywalking to murder—
and still be immune from prosecution. They can't be arrested or forced to testify in court.
JOURNAL:

Virtually every state that is host to a foreign diplomatic mission will have its own embassy in the territory of the sending state. Every state wants its own diplomats
operating abroad, and its own diplomatic bags, embassies and archives, to receive those protections that are provided by international law. Honoring those same
obligations vis-à-vis the diplomatic community in one's own country is widely perceived as a major factor in ensuring that there
is no erosion of the international law requirements on diplomatic privileges and immunities.
Diplomatic law governs the conduct of relations between representative organs of a state operating within the territory of another state, and the receiving state. Its
purpose is to facilitate international diplomacy, balancing the pursuit of the foreign policy interests of the sending state with respect for the territorial sovereignty of
the receiving state.
Diplomatic immunity is an exception to the general rule of territorial jurisdiction. It allows diplomats to be able to carry out their functions within the framework of
necessary security and confidentiality. But it still contributes to the balancing of interests between the sending and receiving state, because immunity does not entitle
diplomat to flout local laws.
There are many types of missions for the conduct of international diplomacy – governed by its own specific body of diplomatic law.
• Until the end of 1950 - sources of law governing the missions were largely customary.
• 1961- Vienna Convention on Diplomatic Relations –a treaty largely confirmatory to customary law and was ratified by many states.
For about 15 years it was fairly generally felt that the provisions of the Vienna Convention did indeed provide a fair balance between the interests of the sending and
receiving states.
ABUSES of diplomats:
• parking illegally, causing obstructions and failing to pay traffic fines (in major cities, US)
• less public awareness of traffic violations (London)
• period 1974-mid-1984 – 546 occasions that persons avoided arrest or prosecution for alleged serious offenses (i.e., offenses carrying a potential sentence
of 6 months' imprisonment or greater) because of diplomatic immunity.
• mid-1970s - diplomatic missions were holding firearms, contrary to the provisions of local law - were often being imported through the diplomatic bag.
• various Western countries – terrorist incidents, in which it was believed that the weapons used were provided from diplomatic sources.
• Widely thought that certain foreign governments were promoting state terrorism against dissident exiles, through the involvement of their embassies in
the country concerned.
• April 17, 1984 - an orderly demonstration was held by Libyan opponents of Colonel Qaddafi's Government, on the pavement in St. James's Square, London,
opposite the People's Bureau. Both the Foreign Office in London and the British Ambassador in Tripoli had been warned the day before that if the
demonstration were to be allowed to go ahead, Libya "would not be responsible for its consequences." Weapons and relevant forensic evidence were
found in the Bureau.
The public and many legislators were clearly deeply disturbed that the international law of diplomatic immunity apparently prevented the Bureau from being entered,
and those responsible from being arrested. More specifically, it was widely felt that diplomats acting in a way incompatible with their diplomatic status should not
benefit from an immunity granted to assist the orderly conduct of diplomatic relations. It was suggested that some way should be found of searching diplomatic bags
that were suspected of containing either drugs or weapons. And there was a widespread sentiment that premises which were a base for unlawful acts should not be
accorded inviolability. It was argued variously that a proper interpretation of the Vienna Convention would support the view that immunity and inviolability fell away
when diplomats and missions abused their positions; but that if the Vienna Convention made these desirable outcomes impossible, then the Convention should be
amended or denounced.
INVIOLABILITY (absolute) OF THE PREMISES OF AN EMBASSY

Article 22(1) of the Convention provides that "[t]he premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the
consent of the head of the mission." Article 22(3) further provides that "[t]he premises of the mission . . . shall be immune from search, requisition, attachment or
execution."
Two difficult related issues to the notion of inviolability:

• relationship of general treaty principles - Vienna Convention provides for its own remedies in case it is violated--the severing of diplomatic relations is
available as a response to what one could term "a fundamental breach."
• concept of self-defense - "self defense applies not only to action taken directly against a state but also to action directed against members of that state."
This writer remains skeptical as to the applicability at all of the international law concept of self-defense to violent acts by the representatives of one state
within the territory of another, directed against the latter's citizens.
SEARCHING OF DIPLOMATIC BAGS
Article 27(3) of the Convention states that "[t]he diplomatic bag shall not be opened or detained."
Suggestions not to treat this provision mandatorily:

• inviolability of the bag is to protect diplomatic materials, but not materials that do not fall in that category—and indeed constitute an abuse of the
diplomatic bag.
• abuse by members of a mission of the functions protected under the Convention entails forfeiture of the protection of the Convention.
There is no way of ascertaining that a bag contains illicit materials save by examination; and that possibility gives too much opportunity to a receiving state to interfere
with the proper flow of diplomatic materials. Even those states who suffered from abuse, show little enthusiasm for a departure from the prohibition of search in
Article 27(3).
In response to questioning by the committee, the Legal Adviser to the Foreign and Commonwealth Office confirmed the legal position, and further agreed that,
therefore, the decision not to search the bags was political and not legal. The committee in its report did not dissent from the political judgment made.

Whether remedies available under and within the Convention should be used will always be subject to political judgment. And sometimes it may be convenient for a
government to let it be supposed, in exercising political judgment, that its hands are tied by the requirements of international law.
CRIMINAL OFFENSES AND PERSONAL IMMUNITIES
Vienna Convention on Diplomatic Relations:
Article 29: The person of a diplomatic agent is inviolable and he may not be arrested or detained.
Article 39: A diplomatic agent is immune from the criminal jurisdiction of the receiving State, and immune from the civil and administrative jurisdiction save in certain
specified cases
Article 34: He is further exempt from local taxes.
Article 37: These privileges and immunities are extended to the members of his family forming part of his household, provided that they are not nationals of the
receiving State
The same privileges and immunities are extended to the members of the administrative and technical staffs of the mission, with the same provisions for their families.
The only difference is that immunity from civil and administrative jurisdiction will only be in respect of acts performed within the course of their duties.
Article 41: All persons enjoying privileges and immunities under the Convention (or similar conventions applicable to consular staff or staff of international
organizations) are under a duty to respect the laws and regulations of the receiving State, and not to interfere in its internal affairs.
Article 31(1): a diplomat is indeed bound by the laws of the receiving State - his immunity does not exempt him from the jurisdiction of the sending State.
When a diplomat violates this duty he DOES NOT lose his immunity. The case of diplomatic agents - apply even to unofficial acts.
ARGUMENT: If a diplomat is a terrorist, they are not diplomats at all and must lose the immunities granted to them.
But the right view seems to be that a person remains an accredited diplomat until the receiving State requires him to be withdrawn. So it seems there is NO exception
to the grant of immunity.
REMEDY: The Convention provided a remedy in the ability of the receiving state to declare a diplomat persona non grata. In cases concerning offenses against the
security of the state, offending diplomats were routinely declared persona non grata.
This study was based, as has been explained above, on the submission of detailed evidence from a wide variety of interested parties, and oral examination of witnesses.
It concluded that amendment of the Vienna Convention was not only virtually impossible to achieve, but of doubtful desirability.
More difficult was the issue whether security in the streets of London could and should be facilitated by changing the practice regarding demonstrations outside
embassies.
• Article 22 of the Vienna Convention nonetheless places on the receiving state "a special duty to prevent disturbance of the peace of the mission or
impairment of its dignity." Article 22 (together with other articles) is given the force of law in the United Kingdom by the Diplomatic Privileges Act 1964.
The view was offered in certain quarters that the absence of legislation to keep demonstrations at a certain distance from embassies is incompatible with
the obligations under Article 22.
At the end of the day, terroristic abuse of diplomatic status can be controlled neither by moving demonstrations away from embassies nor by trying to amend the
Vienna Convention. What is needed in close coordination between the various parts of government, and international security cooperation. Governments must keep
themselves more fully informed than they have sometimes appeared to be in the past, and should not, for the sake of promoting trade or other reasons, seek to
accommodate those who are reluctant to conform to the requirements of the Vienna Convention. Above all, those remedies available for abuse in the Convention--
especially the power to limit the size of the mission, to declare a diplomat persona non grata--should be used with firmness and vigor, and not just reserved for matters
related to espionage.
As is so often the case, legal means are at hand; but they need to be matched by political will.
CASE : Underhill v. Hernandez, 168 US 250 (1897).
OVERVIEW:
Hernandez was in command of a revolutionary army in Venezuela when an engagement took place with the government forces which resulted in the defeat of the latter,
and the occupation of Bolivar by the former. Underhill was living in Bolivar, where he had constructed a waterworks system for the city under a contract with the
government, and carried on a machinery repair business. He applied for a passport to leave the city, which was refused by Hernandez with a view to coerce him to operate
his waterworks and his repair works for the benefit of the community and the revolutionary forces. Subsequently a passport was given to him.
Subsequently Underhill sued Hernandez in the Circuit Court for the Second Circuit to recover damages caused by the refusal to grant the passport, for alleged confinement
of him to his own house, and for alleged assaults and affronts by Hernandez' soldiers. Judgment being rendered for defendant, the case was taken to the circuit court of
appeals, where the judgment was affirmed, the court holding "that the acts of the defendant were the acts of Venezuela, and as such are not properly the subject of
adjudication in the courts of another government." Held that the circuit court of appeals was justified in that conclusion.
HISTORICAL BACKGROUND:
● 1892- a revolution was initiated in Venezuela against the administration thereof, which the revolutionists claimed was no longer the legitimate government.
● The parties in this conflict were those who recognized Palacio as their head, and those who followed Crespo. Gen. Hernandez belonged to the anti-
administration party and commanded its forces in the vicinity of Ciudad Bolivar.
● August, 1892- an engagement took place between the armies of the two parties in which the troops under Hernandez prevailed. Hernandez entered Bolivar
and assumed command of the city.
● The local officials left and the vacant positions were filled by Hernandez, and during the period of transactions complained of, was the civil and military chief
of the city and district.

● The party in revolt had achieved success generally, taking possession of the capital of Venezuela. On October 23, 1892, the "Crespo government,"was formally
recognized as the legitimate government of Venezuela by the United States.
FACTS:
● George F. Underhill was a citizen of the United States, who had constructed a waterworks system for the City of Bolivar under a contract with the government,
and was engaged in supplying the place with water, and he also carried on a machinery repair business.
● Hernandez, being the officer in command, Underhill applied for a passport in order to leave the city. Hernandez refused his request as well as other requests
made on behalf of Underhill. It was on October 18, when a passport was given, and Underhill left the country.
● This action was brought to recover damages for the detention caused by reason of the refusal to grant the passport, for the alleged confinement of Underhill
to his own house, and for certain alleged assaults and affronts by the soldiers of Hernandez' army.
● Ruling of the Circuit Court: plaintiff was not entitled to recover, and directed a verdict for defendant on the ground that "because the acts of defendant were
those of a military commander, representing a de facto government in the prosecution of a war, he was not civilly responsible therefore."
● Upon appeal, the circuit court of appeals affirmed the decision. Thus, the present case.
ISSUE: W/N Hernandez can be made liable?
RULING:
Mr. Chief Justice Fuller delivered the opinion of the Court.
● Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts
of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be
availed of by sovereign powers as between themselves.
● Nor can the principle be confined to lawful or recognized governments, or to cases where redress can manifestly be had through public channels. The immunity
of individuals from suits brought in foreign tribunals for acts done within their own states in the exercise of governmental authority, whether as civil officers
or as military commanders, must necessarily extend to the agents of governments ruling by paramount force as matter of fact.
● Where a civil war prevails (that is, where the people of a country are divided into two hostile parties, who take up arms and oppose one another by military
force), generally speaking, foreign nations do not assume to judge the merits of the quarrel.
● If the party seeking to dislodge the existing government succeeds, and the independence of the government it has set up is recognized, then the acts of such
government, from the commencement of its existence, are regarded as those of an independent nation. If the political revolt fails of success, still, if actual war
has been waged, acts of legitimate warfare cannot be made the basis of individual liability, and other cases.
● In this case, the archives of the State Department show that civil war was flagrant in Venezuela, that the revolution was successful, and that the revolutionary
government was recognized by the United States as the government of the country, it being, to use the language of the Secretary of State in a communication
to our minister to Venezuela, "accepted by the people, in the possession of the power of the nation, and fully established."
● The acts complained of were the acts of a military commander representing the authority of the revolutionary party as a government, which afterwards
succeeded and was recognized by the United States. We think the circuit court of appeals was justified in concluding
"that the acts of the defendant were the acts of the government of Venezuela, and as such are not properly the subject of adjudication in the courts of another
government."
● We agree with the circuit court of appeals that
"the evidence upon the trial indicated that the purpose of the defendant in his treatment of the plaintiff was to coerce the plaintiff to operate his waterworks
and his repair works for the benefit of the community and the revolutionary forces,"
and that "it was not sufficient to have warranted a finding by the jury that the defendant was actuated by malice or any personal or private motive," and we
concur in its disposition of the rulings below. The decree of the circuit court is Affirmed.
CASE: Certain Questions of Mutual Assistance in Criminal Assistance (Djibouti v France), Judgment [2008] ICJ Rep 177.
OVERVIEW: The ICJ rendered its judgement in the case Certain Questions of Mutual Assistance in Criminal Matters, initiated by Djibouti against France in 2006.
Djibouti asked the Court to declare that France violated its international obligation of mutual assistance in criminal matters by not executing a letter rogatory and by
issuing summonses to Djiboutian officials, including the Head of State.
In its Judgment, the Court unanimously found that France failed to meet its international obligations by not giving the reasons for its refusal to execute a letter rogatory
issued by Djibouti in 2004. The Court also determined that its finding of this violation constitutes appropriate satisfaction. The Court did not uphold any of the other final
submissions presented by Djibouti.
FACTS:
● 19 October 1995- the charred body of Judge Bernard Borrel, a French national who had been seconded as Technical Adviser to the Ministry of Justice of
Djibouti, was discovered 80 km from the city of Djibouti.
● The procureur de la République of Djibouti opened a judicial investigation into the cause of the French judge’s death; that investigation concluded that it was
suicide, and was closed on 7 December 2003.
● In France, a judicial investigation to determine the cause of Bernard Borrel’s death was opened on 7 December 1995. Bernard Borrel’s widow and children
took action as civil parties.
● The French investigating judges deemed it necessary to obtain various documents and statements, to reconstruct the events and, to these ends, to make a
visit to the scene, twice made use of mechanisms under the Convention on Mutual Assistance in Criminal Matters of 27 September 1986 between the Republic
of Djibouti and the French Republic.
● The investigating judges issued two international letters rogatory which Djibouti executed, inter alia granting access to presidential premises in Djibouti. The
second letter rogatory was issued particularly in the light of statements made by a witness, who implicated the President of Djibouti and the Head of National
Security of Djibouti. The investigating judges concluded after execution of these letters rogatory that the theory of homicide should again be ruled out.
● A judgement was issued which held that the reconstruction of events carried out in Djibouti had been unlawful in the absence of the civil parties. A new
international letter rogatory was issued for the reconstruction of events in the presence of the civil parties.The Djiboutian authorities responded positively to
this letter rogatory as well.
● While the investigation was ongoing, various French media sources have adopted the theory of murder.
● The Djiboutian Minister for Foreign Affairs wrote to the French Minister for Foreign Affairs, complaining of campaigns in the French press targeting Djibouti
and its President of the Republic and requesting the French Government “to remove all obstacles delaying the judicial conclusion of the case”.
● Djibouti complained about the stance taken by “the civil party and [certain] French media”, which, “by systematically implicating the highest authorities in
Djibouti on the basis of fanciful statements”.
● A request from Djibouti for the transmission of the Borrel file was made but refused by France for not complying with formal requirements. A second request
was submitted which included a request to omit from the certified copy [of the record in the judicial investigation] any documents likely to prejudice the
sovereignty, the security, the public order or other essential interests of the Nation.
● The letter rogatory was refused on the ground of Article 2 (c ) of the Convention on Mutual Assistance in Criminal Matters. Judge Clement continued with the
investigation and directly issued to the Djiboutian Embassy in Paris a first witness summons to the President of the Republic of Djibouti, who was then on an
official visit to France.
● President Ismaël Omar Guelleh did not respond to this summons and Djibouti’s Ambassador to France, emphasizing that it was null and void and not in
accordance with French law.
● In another proceeding, the investigating judge responsible for the case, Mr. Baudouin Thouvenot, to address a witness summons to Djibouti’s Ambassador to
France. the Embassy informed the French Ministry of Foreign Affairs that, as provided for in Article 31 of the Vienna Convention on Diplomatic Relations of
18 April 1961, the Ambassador did not wish to give evidence as a witness, at the same time expressing its surprise at the fact that the summons could be
“addressed to him without passing through the intermediary of the [French] Ministry of Foreign Affairs”.
● Later on, the Minister of Foreign Affairs of France informed Djibouti’s Ambassador on 14 January 2005 that the investigating judge had “recognized his mistake”
and “wished the summons to be now deemed null and void”.
Re: Jurisdiction of the Court
● Djibouti sought to find the Court’s jurisdiction on Article 38, paragraph 5, of the Rules of Court. By its letter of 25 July 2006, France consented to the Court’s
jurisdiction “pursuant to and solely on the basis of said Article 38, paragraph 5”, specifying that this consent “is valid only for the purposes of the case.
● At the hearings, Djibouti recalled, by quoting from the Corfu Channel case, that there is nothing to prevent consent to the jurisdiction of the Court “from
being effected by two separate and successive acts, instead of jointly and beforehand by a special agreement.
● According to France, the Court can only have jurisdiction to deal with facts that bear a direct relation to the stated subject of the dispute.
Dispute referred to by France: the refusal by the French governmental and judicial authorities to execute an international letter rogatory regarding the transmission to
the judicial authorities in Djibouti of the record relating to the investigation in the Case against X for the murder of Bernard Borrel”
ARGUMENTS:
REPUBLIC OF DJIBOUTI
● That the French Republic has violated its obligations under the 1986 Convention: (i) by not acting upon its undertaking of 27 January 2005 to execute the letter
rogatory and for its wrongful refusal of the letters dated June 6, 2005 and May 31, 2005
● the French Republic has violated its obligation pursuant to the principles of customary and general international law not to attack the immunity, honour and
dignity of the President of the Republic of Djibouti:
(i) by issuing a witness summons to the President of the Republic of Djibouti on 17 May 2005;
(ii) by repeating such attack or by attempting to repeat such attack on 14 February 2007;
(iii) by making both summonses public by immediately circulating the information to the French media;
(iv) by not responding appropriately to the two letters of protest from the Ambassador of the Republic of Djibouti
● The French Republic has breached its obligations: under the Convention on Mutual Assistance in Criminal Matters between the Government of the Republic
of Djibouti and the Government of the French Republic and under the Treaty of Friendship and Cooperation
Prayer of the Republic of Djibouti:

● That the French Republic shall immediately after the delivery of the Judgment by the Court transmit the “Borrel file” in its entirety to the Republic of Djibouti
(what was decided by France before was only to partially submit the files)
● That the French Republic shall immediately after the delivery of the Judgment by the Court withdraw the witness summons and the warrant of arrests issued
against the procureur général of the Republic of Djibouti and the Head of National Security of the Republic of Djibouti and declare it null and void
● that the French Republic shall cease its wrongful conduct and abide strictly by the obligations incumbent on it in the future
FRANCE
● The French Republic requests the Court to declare”

❏ that it lacks jurisdiction to rule on those claims presented by the Republic of Djibouti upon completion of its oral argument which go beyond the
subject of the dispute
❏ to declare those claims to be unfounded;
● to reject all the other claims made by the Republic of Djibouti
RULING:
The alleged violation of the Treaty of Friendship and Co-operation between France and Djibouti of 27 June 1977
● Djibouti’s Contentions:Djibouti argues that France violated a general obligation of co-operation provided for by the Treaty of Friendship and Cooperation By:
- not cooperating with it on the judicial investigation of the Borrel case,
- by attacking the dignity and honour of the Djiboutian Head of State and other Djiboutian authorities in disregard of the principles of equality,
mutual respect and peace set out in Article 1 of the Treaty.
● France’s Contention: any interpretation of the Treaty resulting in the acknowledgment of the existence of a general obligation to cooperate which is legally
binding on it in respect of the execution of the international letter rogatory is inconsistent with the wording of the Treaty, with its object,purpose , context,
and the will of the parties.
Court’s Ruling
● The Court concludes that the Treaty of Friendship and Co-operation of 1977 does have a certain bearing on the interpretation and application of the
Convention on Mutual Assistance in Criminal Matters (of 27 September 1986 between Djibouti and France), inasmuch as it must be interpreted and applied
in such a way as to take into consideration the friendship and co-operation established by France and Djibouti as the basis for their mutual relations.
● The Court is of the opinion that, in the light of its jurisprudence and of the customary rule laid down in Article 31, paragraph 3, of the Vienna Convention on
the Law of Treaties of 23 May 1969, an interpretation of the 1986 Convention duly taking into account the spirit of friendship and co-operation stipulated in
the 1977 Treaty cannot possibly stand in the way of a party to that Convention relying on a clause contained in it which allows for non-performance of a
conventional obligation under certain circumstances.
The alleged violation of the Convention on Mutual Assistance in Criminal Matters between France and Djibouti of 27 September 1986
● Djibouti’s Contentions:
- claims that France violated the aforementioned Convention by refusing to execute the letter rogatory
- the obligation to execute the international letter rogatory laid down in Article 1 of the 1986 Convention allegedly imposes on the two Parties an
obligation of reciprocity in implementing the Convention.
Court’s Ruling:
● The Court notes in this respect that in the relations between Djibouti and France, Article 1 of the Convention of 1986 refers to mutuality in the performance
of the obligations laid down therein.
● It considers in this regard that each request for legal assistance is to be assessed on its own terms by each Party. Moreover, the Convention nowhere provides
that the granting of assistance by one State in respect of one matter imposes on the other State the obligation to do likewise when assistance is requested of
it in turn.
● The Court accordingly considers that Djibouti cannot rely on the principle of reciprocity in seeking execution of the international letter rogatory it submitted
to the French judicial authorities.
● As for the obligation to execute international letters rogatory laid down in Article 3 of the 1986 Convention, the Court observes that it is to be realized in
accordance with the procedural law of the requested State.
The alleged violations of the obligation to prevent attacks on the person, freedom or dignity of an internationally protected person ( Ruling in relation to Immunity)
● Djibouti’s Contentions:
- This summons was not only inappropriate as to its form, but was, in the light of Articles 101 and 109 of the French Code of Criminal Procedure, an
element of constraint.
- Inferred from the absence of an apology and from the fact that that summons was not declared void that the attack on the immunity, honour and
dignity of the Head of State has continued.
● France’s Contentions:
- the summoning of a foreign Head of State as an ordinary witness in no sense constitutes an infringement of “the absolute nature of the immunity
from jurisdiction and, even more so, from enforcement that is enjoyed by foreign Heads of State”.
- the witness summons addressed to the Djiboutian Head of State was purely an invitation which imposed no obligation on him
Court’s Ruling:
● The Court recalled in the Arrest Warrant case (Democratic Republic of the Congo v. Belgium) case
“that in international law it is firmly established that . . . certain holders of high-ranking office in a State, such as the Head of State . . .enjoy immunities from
jurisdiction in other States, both civil and criminal”
● A Head of State enjoys in particular “full immunity from criminal jurisdiction and inviolability” which protects him or her “against any act of authority of another
State which would hinder him or her in the performance of his or her duties”
● Thus the determining factor in assessing whether or not there has been an attack on the immunity of the Head of State lies in the subjection of the latter to a
constraining act of authority.
How the principle is applied to the case: (has principles re: immunity)
● The Court finds that the summons was not associated with the measures of constraint provided for by Article 109 of the French Code of Criminal Procedure;
it was in fact merely an invitation to testify which the Head of State could freely accept or decline. There was no attack by France on the immunities from
criminal jurisdiction enjoyed by the Head of State.
● However, the Court notes that the investigating judge, Judge Clément, addressed the summons to Djibouti’s President notwithstanding the formal procedures
The Court considers that by inviting a Head of State to give evidence simply through sending him a facsimile, the investigating judge failed to act in accordance
with the courtesies due to a foreign Head of State.
● These do not in themselves constitute a violation by France of its international obligations regarding the immunity of foreign Heads of State. The Court
observes that an apology would have been due from France.
● The Court recalls, moreover, that the rule of customary international law reflected in Article 29 of the Vienna Convention on Diplomatic Relations, whereby
receiving States are under the obligation to protect the honour and dignity of diplomatic agents, necessarily applies to Heads of State.
Re: The French Media Issue
● The Court recognizes that it does not possess any probative evidence that would establish that the French judicial authorities are the source behind the
dissemination of the confidential information in question.
Re: The Second Summons sent on Feb. 14, 2007 to the HoS of Djibouti
● It was issued following the procedure laid down by the French Code of Criminal Procedure in accordance with French law.
● The consent of the Head of State is expressly sought in this request for testimony, which was transmitted through the intermediary of the authorities and in
the form prescribed by law. This did not infringe the immunities from jurisdiction enjoyed by the Djiboutian Head of State.
The alleged attacks on the immunities said to be enjoyed by the procureur de la République and the Head of National Security of Djibouti
● The Court examines the four summonses as témoins assistés (legal witness/ assisted witness) addressed in 2004 and by French judges to senior Djiboutian
officials, respectively procureur de la République and Head of National Security of Djibouti.
● In the event of summonses as témoins assistés, the situation envisaged by French law is one where suspicions exist regarding the person in question, without
these being considered sufficient grounds to proceed with a “mise en examen” (indictment).
● Djibouti contended that the President and Head of National Security benefited from personal immunities from criminal jurisdiction and inviolability, before
rejecting this argument during the oral proceedings. It then argued in terms of “functional immunity, or ratione materiae”.
● The Court observes that it has not been “concretely verified” before it that the acts which were the subject of the summonses as témoins assistés issued by
France were indeed acts within the scope of their duties as organs of State.
● The Court notes that there are no grounds in international law upon which it could be said that the officials concerned were entitled to personal immunities,
not being diplomats within the meaning of the Vienna Convention on Diplomatic Relations of 1961, and the Convention on Special Missions of 1969 not being
applicable.
● The French courts were not informed by Djibouti that the acts complained of by France were its own acts of the State of Djibouti and that the procureur de la
République and the Head of National Security were its organs, agencies or instrumentalities in carrying them out.
● The Court emphasizes that the State which seeks to claim immunity for one of its State organs is expected to notify the authorities of the other State concerned,
thereby enabling the court of the forum State to ensure that it does not fail to respect any entitlement to immunity and might thereby engage the responsibility
of that State.
● The State notifying a foreign court that judicial process should not proceed, for reasons of immunity, against its State organs, is assuming responsibility for any
internationally wrongful act in issue committed by such organs.

CASE: Al-Adsani v UK, ECtHR, App No. 35763/97, 21 November 2001.
OVERVIEW:
The case originated in an application against the United Kingdom of Great Britain and Northern Ireland lodged with the European Commission of Human Rights under
former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a dual British/Kuwaiti national, Mr Sulaiman
Al-Adsani (“the applicant”), on 3 April 1997.
The applicant alleged that the English courts, by granting immunity from suit to the State of Kuwait, failed to secure enjoyment of his right not to be tortured and denied
him access to a court, contrary to Articles 3, 6 § 1and 13 of the Convention.
FACTS:
Alleged ill-treatment
● The applicant, who is a trained pilot, went to Kuwait in 1991 to assist in its defence against Iraq. During the Gulf War he served as a member of the Kuwaiti Air
Force and, after the Iraqi invasion, he remained behind as a member of the resistance movement.
● During that period he came into possession of sex videotapes involving Sheikh Jaber Al-Sabah Al-Saud Al-Sabah (“the Sheikh”), who is related to the Emir of
Kuwait and is said to have an influential position in Kuwait. By some means these tapes entered general circulation, for which the applicant was held responsible
by the Sheikh.
● After the Iraqi armed forces were expelled from Kuwait, the Sheikh and two others gained entry to the applicant’s house, beat him and took him at gunpoint
in a government jeep to the Kuwaiti State Security Prison. The applicant was falsely imprisoned there for several days during which he was repeatedly beaten
by security guards. He was released on 5 May 1991, having been forced to sign a false confession.
● The Sheikh took the applicant at gunpoint in a government car to the palace of the Emir of Kuwait’s brother. At first the applicant’s head was repeatedly held
underwater in a swimming-pool containing corpses, and he was then dragged into a small room where the Sheikh set fire to mattresses soaked in petrol, as a
result of which the applicant was seriously burnt.
● The applicant instituted civil proceedings in England for compensation against the Sheikh and the State of Kuwait in respect of injury to his physical and mental
health caused by torture in Kuwait in May 1991 and threats against his life and well-being made after his return to the United Kingdom on 17 May 1991. On
15 December 1992, he obtained a default judgment against the Sheikh.
● The court held, on the basis of the applicant’s allegations, that there were three elements pointing towards State responsibility for the events in Kuwait:
- firstly, the applicant had been taken to a State prison;
- secondly, government transport had been used on 2 and 7 May 1991; and,
- Thirdly, in the prison he had been mistreated by public officials.
● The applicant had established a good arguable case, based on principles of international law, that Kuwait should not be afforded immunity under section 1(1)
of the State Immunity Act 1978 in respect of acts of torture. In addition, there was medical evidence indicating that the applicant had suffered damage (post-
traumatic stress) while in the United Kingdom.
● The Kuwaiti government, after receiving the writ, sought an order striking out the proceedings. It was for the applicant to show on the balance of probabilities
that the State of Kuwait was not entitled to immunity under the 1978 Act.
● The 1978 Act bestowed immunity upon sovereign States for acts committed outside the jurisdiction and, by making express provision for exceptions, it
excluded as a matter of construction implied exceptions. There was no room for an implied exception for acts of torture in section 1(1) of the 1978 Act
● The court held that the applicant had not established on the balance of probabilities that the State of Kuwait was responsible for the threats made in the
United Kingdom.
● The applicant’s claim was rejected and immunity was granted to Kuwait.
The Basle Convention
Article 15 of the Basle Convention provides that a Contracting State shall be entitled to immunity if the proceedings do not fall within the stated exceptions.
Issue: Whether state immunity applied in respect of the alleged events in Kuwait?
State Immunity in respect of civil proceedings for torture
● The International Law Commission (ILC) found that over the preceding decade a number of civil claims had been brought in municipal courts,against foreign
governments, arising out of acts of torture committed not in the territory of the forum State but in the territory of the defendant and other States.
● The ILC found that some national gov’ts sympathized with the argument that States are not entitled to plead immunity where there has been a violation of
human rights norms with the character of jus cogens, although in most cases the plea of sovereign immunity had succeeded.
● The ILC did, however, noted developments which gave support to the argument that a State could not plead immunity in respect of gross human rights
violations:
- the House of Lords’ judgment in ex parte Pinochet
- amendment by the United States of its Foreign Sovereign Immunities Act (FSIA) to include a new exception to immunity
- section 221 of the Anti-Terrorism and Effective Death Penalty Act of 1996 and more
The prohibition of torture in Kuwait and under international law

● The UN Convention requires by Article 2 that each State Party is to take effective legislative, administrative, judicial or other measures to prevent torture in
any territory under its jurisdiction, and by Article 4 that all acts of torture be made offences under each State’s criminal law.
● In previous rulings, the prohibition of torture laid down in human rights treaties enshrines an absolute right, which can never be derogated from, not even in
time of emergency because the prohibition on torture is a peremptory norm or jus cogens. This prohibition is so extensive that States are even barred by
international law from expelling, returning or extraditing a person to another State where there are substantial grounds for believing that the person would
be in danger of being subjected to torture.
Criminal Jurisdiction of the UK over acts of torture
● The United Kingdom ratified the UN Convention with effect from 8 December 1988. 33. Section 134 of the Criminal Justice Act 1988,, made torture, wherever
committed, a criminal offence under United Kingdom law triable in the United Kingdom.
RULING of the COURT
Applicability of Art. 6 of the Convention
● Article 6 § 1 does not itself guarantee any particular content for “civil rights and obligations” in the substantive law of the Contracting States. It extends only
to contestations (disputes) over “civil rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law.
● The proceedings which the applicant intended to pursue were for damages for personal injury, a cause of action well known to English law. The Court does
not accept the Government’s submission that the applicant’s claim had no legal basis in domestic law since any substantive right which might have existed
was extinguished by operation of the doctrine of State immunity. It notes that an action against a State is not barred in limine: if the defendant State waives
immunity, the action will proceed to a hearing and judgment. The grant of immunity is to be seen not as qualifying a substantive right but as a procedural bar
on the national courts’ power to determine the right.
● It follows that Article 6 § 1 was applicable to the proceedings in question.
Compliance with Article 6
● Art. 6 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court. The right of access to a court is not,
however, absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the
State.
● The Court must first examine whether the limitation pursued a legitimate aim. It notes in this connection that sovereign immunity is a concept of international
law, developed out of the principle par in parem non habet imperium, by virtue of which one State shall not be subject to the jurisdiction of another State.
● The Court considers that the grant of sovereign immunity to a State in civil proceedings pursues the legitimate aim of complying with international law to
promote comity and good relations between States through the respect of another State’s sovereignty.
● Measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be
regarded as imposing a disproportionate restriction on the right of access to a court as embodied in Article 6.
● The Court notes that the 1978 Act, applied by the English courts so as to afford immunity to Kuwait, complies with the relevant provisions of the 1972 Basle
Convention, which, while placing a number of limitations on the scope of State immunity as it was traditionally understood, preserves it in respect of civil
proceedings for damages for personal injury unless the injury was caused in the territory of the forum State. Except insofar as it affects claims for damages for
torture, the applicant does not deny that the above provision reflects a generally accepted rule of international law.
● The Court accepts that the illtreatment alleged by the applicant against Kuwait in his pleadings in the domestic courts can properly be categorised as torture
within the meaning of Article 3 of the Convention.
● The international Criminal Tribunal previously held that “because of the importance of the values it protects, this principle [proscribing torture] has evolved
into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary
rules”
HOWEVER
● While the Court accepts, on the basis of these authorities, that the prohibition of torture has achieved the status of a peremptory norm in international law,
it observes that the present case concerns not, as in Furundzija and Pinochet, the criminal liability of an individual for alleged acts of torture, but the immunity
of a State in a civil suit for damages in respect of acts of torture within the territory of that State.
● The Court observes that none of the primary international instruments referred to (Article 5 of the Universal Declaration of Human Rights, Article 7 of the
International Covenant on Civil and Political Rights and Articles 2 and 4 of the UN Convention) relates to civil proceedings or to State immunity.
● The House of Lords “emphasised the limits of immunity in respect of gross human rights violations by State officials”. The Court does not, however, find that
either of these developments provides it with a firm basis on which to conclude that the immunity of States ratione personae is no longer enjoyed in respect
of civil liability for claims of acts of torture,
● The Court, while noting the growing recognition of the overriding importance of the prohibition of torture, does not accordingly find it established that there
is yet acceptance in international law of the proposition that States are not entitled to immunity in respect of civil claims for damages for alleged torture
committed outside the forum State.
Conclusion: No redress was given to the applicant.
Dissenting Opinion
● In the words of Judge Ferrari Bravo in his dissenting opinion, “the Court has unfortunately missed a very good opportunity to deliver a courageous judgment.”
● “In the circumstances of this case, Kuwait cannot validly hide behind the rules on State immunity to avoid proceedings for a serious claim of torture made
before a foreign jurisdiction; and the courts of that jurisdiction (the United Kingdom) cannot accept a plea of immunity, or invoke it ex officio, to refuse an
applicant adjudication of a torture case.”
MODULE 7: STATE RESPONSIBILITY
BOSNIA AND HERZEGOVINA V. SERBIA AND MONTENEGRO
FACTS:
• There is a dispute between two sovereigns who were formerly part of the territory of the former state of Yugoslavia.
• Following the death of President Tito, a rotating presidency was implemented in accordance with the 1974 Constitution of the SFRY.
• After almost ten years of economic crisis and the rise of nationalism within the republics and growing tension between different ethnic and national groups,
the SFRY began to break up.
• The Republic of the Serb People of Bosnia and Herzegovina, later to be called the Republika Srpska (RS), declared its independence.
• This entity never attained international recognition as a sovereign State, but it had de facto control of substantial territory, and the loyalty of large numbers
of Bosnian Serbs.
• The Applicant has asserted the existence of close ties between the Government of the Respondent and the authorities of the Republika Srpska, of a political
and financial nature, and also as regards administration and control of the army of the Republika Srpska (VRS).
INSTANT FACTS:
• There was an existence of an overall plan of the VRS to commit genocide throughout the territory, against persons identified everywhere and in each case on
the basis of their belonging to a specified group.
• Having concluded that there was indeed an existence of massacres at Srebrenica in July 1995 and that acts of genocide were committed, the Court turns to
the question whether those acts are attributable to the Respondent.
ISSUES: Whether the international responsibility of the Respondent can have been incurred, on whatever basis, in connection with the massacres committed in the
Srebrenica area during the period in question
• BOSNIA – It contends that the Respondent has in fact recognized that genocide was committed at Srebrenica, and has accepted legal responsibility for it. For
purposes of determining whether the Respondent has recognized its responsibility when it made a declaration on national tv concerning the murder of a
paramilitry unit of 6 Bosnian Muslims
o ICJ: Not indication of admission. It is political in nature.
• To determine a resolution ICJ considered the question of attribution of the Srebrenica genocide to the Respondent on the basis of the conduct of its organs
1. It needed to be determined whether the acts of genocide could be attributed to the Respondent on the basis that those acts where committed by
its organs or persons whose acts are attributable to it under customary rules of State Responsibility.
2. The Court needs to ascertain whether acts of the kind referred to in Article III, paragraphs (b) to (e), of the Convention, other than genocide itself,
were committed by persons or organs whose conduct is attributable to the Respondent.
3. Finally, it will be for the Court to rule on the issue as to whether the Respondent complied with its twofold obligation deriving from Article I of the
Convention to prevent and punish genocide.
WON the acts of genocide committed in Srebrenica were perpetrated by “persons or entities” having the status of organs of the Federal Republic of Yugoslavia (as the
Respondent was known at the time) under its internal law, as then in force?
“Article 4 Conduct of organs of a State 1. The conduct of any State organ

shall be considered an act of that State under international law, whether
the organ exercises legislative, executive, judicial or any other functions,
whatever position it holds in the organization of the State, and whatever
its character as an organ of the central Government or of a territorial unit
of the State. 2. An organ includes any person or entity which has that
status in accordance with the internal law of the State.”
NO. They do not have the status of state organs. ICJ said that there is nothing which could justify the question. For the reason that:
1. No showing that the FRY army took part of the massacres nor that the political leaders of the FRY had a hand in preparing, planning or in any way carrying out
the massacres.
• It is true that there are evidences of direct or indirect participation by the army of FRY along with the Bosnian Serb armed forces, but those were
years prior to Srebrenica genocide. In fact, this participation was repeatedly condemned by the political organs of the UN which has demanded to
put an end to it. There is however, no showing of participation on the part of the genocide.
2. Furthermore, neither the Republika Srpska, nor the VRS were de jure organs of the FRY, since none of them had the status of organ of that State under its
internal law.
• There is no doubt that the FRY was providing substantial support, inter alia, financial support, to the Republika Srpska, and that one of the forms
that support took was payment of salaries and other benefits to some officers of the VRS, but the Court considers that this did not automatically
make them organs of the FRY.
WON the Respondent might bear responsibility for the acts of the paramilitary militia known as the “Scorpions” in the Srebrenica area.
NO. The Court is unable to find that the “Scorpions” ⎯ referred to as “a unit of Ministry of Interiors of Serbia” in those documents ⎯ were, in mid-1995, de jure organs of
the Respondent.
PRINCIPLE:
• Furthermore, the Court notes that in any event the act of an organ placed by a State at the disposal of another public authority shall not be considered an act
of that State if the organ was acting on behalf of the public authority at whose disposal it had been placed.
• Following the jurisprudence of (Nicaragua v. United States of America), persons, groups of persons or entities may, for purposes of international responsibility,
be equated with State organs even if that status does not follow from internal law, provided that in fact the persons, groups or entities act in “complete
dependence” on the State, of which they are ultimately merely the instrument.
APPLICATION:
• In the present case, the Court however cannot find that the persons or entities that committed the acts of genocide at Srebrenica had such ties with the FRY
that they can be deemed to have been completely dependent on it.

• Neither the Republika Srpska nor the VRS could be regarded as mere instruments through which the FRY was acting, and as lacking any real autonomy.
• The Court further states that it has not been presented with materials indicating that the “Scorpions” were in fact acting in complete dependence on the
Respondent.
CONCLUSION: The Court therefore finds that the acts of genocide at Srebrenica cannot be attributed to the Respondent as having been committed by its organs or by
persons or entities wholly dependent upon it, and thus do not on this basis entail the Respondent’s international responsibility.
WON the massacres at Srebrenica were committed by persons who, though not having the status of organs of the Respondent, nevertheless acted on its instructions or
under its direction or control?
“Article 8 Conduct directed or controlled by a State The conduct of a

person or group of persons shall be considered an act of a State under
international law if the person or group of persons is in fact acting on the
instructions of, or under the direction or control of, that State in carrying
out the conduct.”
PRINCIPLE:
As a rule, in CIL, the conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting
on the instructions of, or under the direction or control of, that State in carrying out the conduct (Art. 8). This provision must be understood in the light of the Court’s
jurisprudence on the subject, particularly that of the 1986 Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America).
In here it stated the effective control test. Under the test, it must be shown that this “effective control” was exercised, or that the State’s instructions were given, in
respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken by the persons or groups of persons having
committed the violations.
Bosnia contention: that the crime of genocide has a particular nature, in that it may be composed of a considerable number of specific acts separate, to a greater or lesser
extent, in time and space.
HELD:
• In the case at bar, the Court finds that in the light of the information available to it, it has not been established that the massacres at Srebrenica were committed
by persons or entities ranking as organs of the Respondent.
• It finds also that it has not been established that those massacres were committed on the instructions, or under the direction of organs of the Respondent
State, nor that the Respondent exercised effective control over the operations in the course of which those massacres, which constituted the crime of
genocide, were perpetrated.
• BECAUSE, the Applicant has not proved that instructions were issued by the federal authorities in Belgrade, or by any other organ of the FRY, to commit the
massacres, still less that any such instructions were given with the specific intent (dolus specialis) characterizing the crime of genocide.
CONCLUSION:
All indications are to the contrary: that the decision to kill the adult male population of the Muslim community in Srebrenica was taken by some members of the VRS
Main Staff, but without instructions from or effective control by the FRY. THEREFORE, The Court concluded from the foregoing that the acts of those who committed
genocide at Srebrenica cannot be attributed to the Respondent under the rules of international law of State responsibility: thus, the international responsibility of the
Respondent is not engaged on this basis.
SIDE STORY:
In this case, the applicant questioned the validity of applying the Nicaragua case over the Tadic case.
In the Tadic case, the Chamber did not follow the jurisprudence of the Court in the Military and Paramilitary Activities case: it held that the appropriate criterion, applicable
in its view both to the characterization of the armed conflict in Bosnia and Herzegovina as international, and to imputing the acts committed by Bosnian Serbs to the FRY
under the law of State responsibility, was that of the “overall control” exercised over the Bosnian Serbs by the FRY; and further that that criterion was satisfied in the
case. In other words, the Appeals Chamber took the view that acts committed by Bosnian Serbs could give rise to international responsibility of the FRY on the basis of
the overall control exercised by the FRY over the Republika Srpska and the VRS, without there being any need to prove that each operation during which acts were
committed in breach of international law was carried out on the FRY’s instructions, or under its effective control.
BRIEF FACTS:
• Serb forces attacked Bosnian Muslim and Croat population
centers in the opstina of Prijedor, Bosnia-Herzegovina, forcing
most Muslims and Croats from their homes and confining many
thousands, including more than 3,000 who were held in the
Omarska camp, a former mining complex.
• "Dusko" Tadic, was one of the leaders who participated in the
collection and mistreatment, including killings, of Bosnian
Muslims and Croats in opstina Prijedor within Omarska camp

and outside Omarska camp. He was indicted on 34 counts of
crimes within the jurisdiction of the International Tribunal.
The ICJ after careful consideration is unable to subscribe to the reasoning of Tadic. For the reason that:
1. ICTY is an international criminal tribunal. It only has jurisdiction which is criminal and extends over persons only. Thus, the judgement in the Tadic case
addressed an issue which was is not for purposes of the present case is not indispensable. ICTY had taken a position which do not lie within the specific purview
of its jurisdiction and a resolution which is not always necessary in deciding criminal cases.
• OVERALL CONTROL TEST – employed to determine WON armed conflict is international.
FACTS:
In the Tandic Case, the armed conflict was between Bosnian Serbs and the
central authorities of Bosnia and Herzegovina, they basically belong to one
state. The issue only having one state involve, this is not an international
case. It belonging to a domestic case. Since this is a case which is brought
to the ICTY which is an international tribunal, there must be a case that is
international in order for the court to acquire jurisdiction. International in
a sense, that it involves 2 states. That is why, the court here applied the
overall control test, to determine WON the armed conflict is international,
it held that the armed conflict of the armed forces of the Republika Srpska
were to be regarded as acting under the overall control of and on behalf of
the FRY. With inclusion of FRY, although Bosnia formerly was a state of FRY
which had already declared its independence by adopting a sovereignty
resolution. The court here classified such conflict as international, thus
acquiring jurisdiction over the case.
2. Although the over-all control test is suitable and applicable on the Tandic case, the court does not think it should apply because first of all, the overall control
test determines WON the armed conflict is international, and in this case, there is no need to determine such because obviously this is already an international
case there is no need to determine such for purposes of the present judgement.
US V. IRAN CASE CONCERNING US DIPLOMATIC AND CONSULAR STAFF IN TEHRAN
FACTS:
• US had instituted proceedings against Iran in a case arising out of the situation at its Embassy in Tehran and Consulates at Tabriz and Shiraz.
• There was an armed attack on the US Embassy which was carried out by the Militants. The militants are the Muslim Student Followers of the Imam’s Policy.
• There was seizure and detention of its diplomatic and consular staff as hostages, an appropriation of its property and archives, and the conduct of the Iranian
authorities
• The US filed the instant application requesting to adjudge and declare that the Iranian Government had violated international legal obligations to the US and
must ensure the immediate release of the hostages, afford the hostages immunity in which they are entitled and provide them facilities to leave Iran.
• Iran, on the other hand, did not take part in the proceedings. It did not appear and put forward its arguments.
• However, the court observed that the Court already have the available documents presented by the US that would satisfy the allegations of fact based on the
claim.
ISSUE: WON the conduct of the militants could be directly attributed to the Iran, because there was inaction n the part of Iran.
ICJ: It could only be directly attributed to Iran ONLY IF it were established that they were in fact acting on its behalf.
RULING:
• The court found that the information was not sufficient enough to establish that they were acting on behalf of the state.
• HOWEVER, it found that Iran was under the obligation to take appropriate steps to protect the US Embassy.
• IN THE CASE AT BAR, Iran did nothing to prevent the attack nor stop it before it reached to completion. This inaction was in contrast with the conduct of
Iranian authorities on several similar occasions.
• THUS, the court held that there was a clear and serious violation of Iran’s obligations to the US under the Vienna Convention on Diplomatic Relations and on
Consular Relations.
On the events that occurred following the event

This events for the court compromise the whole series of facts claimed by the US.
• Expressions of approval were immediately heard from numerous Iranian authorities.
• Ayatollah Khomeini himself proclaimed the Iranian State's endorsement of both the seizure of the premises and the detention of the hostages.
o He described the Embassy as a "centre of espionage", declared that the hostages would (with some exceptions) remain under arrest until the US
returns the former Shah his property to Iran and forbade all negotiations with the US on the subject.
ICJ: Once the organs of the Iranian state had given approval to the acts complained of and decided to perpetuate them as a means of pressure on the US, the militants
became agents of the state, which itself became internationally responsible for the acts.
In the case at bar, the Iranian authorities decision to continue the subjection of the Embassy to occupation and its staff to detention as hostages, gave rise to repeated
and multiple breaches of Iran’s treaty obligations, addition to those already committed at the time of the seizure: Arts. 22, 24, 25, 26, 27, and 29 of the 1961 Convention;
Art. 33 of 1955 Treaty
On the Charge d affaires and the two other members of the US mission who have been in Iranian MOFA
The court finds that the Iranian authorities had withheld from them the protection and facilities necessary to allow them to leave the Ministry in safety. Accordingly, it
appears that the court in their respect there have been breaches of Arts. 26 and 29 of the Vienna
GABSCIKOVO CASE
WON Hungary was entitled to suspend and subsequently abandon, in 1989, the works on the Nagymaros Project and on the part of the Gabcikovo Project for which the
1977 Treaty and related instruments attributed responsibility to it?
NO. The Court finds that Hungary was not entitled to suspend and subsequently abandon. In arriving to such conclusion, the court here did not dwell upon the question
of the relationship between the law of treaties and the law of State responsibility because those two branches of international law obviously have a scope that is distinct.

LAW OF TREATIES V. STATE RESPONSIBILITY

A determination of whether a convention is or is not in force, and whether it has or has not been properly suspended or denounced, is to be made pursuant to the law
of treaties. On the other hand, an evaluation of the extent to which the suspension or denunciation of a convention, seen as incompatible with the law of treaties, involves
the responsibility of the State which proceeded to it, is to be made under the law of State responsibility.
In the case at bar, the Court cannot accept Hungary's argument to the effect that, in 1989, in suspending and subsequently abandoning the works for which it was still
responsible at Nagymaros and at Dunakiliti, it did not suspend the application of the 1977 Treaty itself or then reject that Treaty.
BECAUSE the court is of the opinion that the conduct of Hungary at that time can only be interpreted as an expression of its unwillingness to comply with at least some
of the provisions of the Treaty and the Protocol of 6 February 1989, as specified in the Joint Contractual Plan. The effect of Hungary's conduct was to render impossible
the accomplishment of the system of works that the Treaty expressly described as "single and indivisible".
What the court considered was WON there was, in 1989. a state of necessity which would have permitted Hungary, without incurring international responsibility, to
suspend and abandon works that it was committed to perform in accordance with the 1977 Treaty and related instruments.
HELD:
State necessity is a ground recognized by international law for precluding the wrongfulness of an act in conformity with an international obligation. Moreover, such
ground for precluding wrongfulness can only be accepted on an exceptional basis.
• PRECLUDING WRONGFULNESS – contemplates a situation wherein there is already an admission that there’s a violation of international law but what it does
in effect is show that the violation is justified.
The following basic conditions set forth in Article 33 of the Draft Article on the International Responsibility of States by the International Law Commission are relevant in
the present case:
1. it must have been occasioned by an "essential interest" of the State which is the author of the act conflicting with one of its international obligations;
2. that interest must have been threatened by n "grave and imminent peril";
3. the act being challenged must have been the "only means" of safeguarding that interest;
4. that act must not have "seriously impair[ed] an essential interest" of the State towards which the obligation existed; and
5. the State which is the author of that act must not have "contributed to the occurrence of the state of necessity".
CASE AT BAR:
Those conditions reflect customary international law.
1. The Court has no difficulty in acknowledging that the concerns expressed by Hungary for its natural environment in the region affected by the Gabcikovo-
Nagymaros Project related to an "essential interest" of that State.
2. It is of the view, however, that, with respect to both Nagymaros and Gabcikovo, the perils invoked by Hungary, without prejudging their possible gravity, were
not sufficiently established in 1989, nor were they "imminent"; and
3. It also noted that Hungary at that time, had available other means of responding to such perils other than suspension and abandonment of works with which
it had been entrusted. More so, that negotiations were under way which might have led to a review of the Project and the extension of some of its time limits,
without there being need to abandon it.
4. Furthermore, Hungary when it decided to conclude the 1977 Treaty, was presumably aware of the situation as then known; and that the need to ensure the
protection of the environment had not escaped the parties.
The having said, the Court concludes that, in the present case, even if it had been established that there was, in 1989, a state of necessity linked to the performance of
the 1977 Treaty, Hungary would not have been permitted to rely upon that state of necessity in order to justify its failure to comply with its treaty obligations, as it had
helped, by act or omission to bring it about.
RAINBOW WARRIOR CASE
FACTS:
• A team of French agents sabotaged and sank the Rainbow Warrior, a vessel belonging to Greenpeace International, while it lay in harbour in New Zealand.
One member of the crew was killed. Two of the agents, Major Mafart and Captain Prieur, were subsequently arrested in New Zealand and, having pleaded
guilty to charges of manslaughter and criminal damage, were sentenced by a New Zealand court to ten years' imprisonment.
• A dispute arose between France, which demanded the release of the two agents, and New Zealand, which claimed compensation for the incident.
• New Zealand also complained that France was threatening to disrupt New Zealand trade with the European Communities unless the two agents were released.
• The two countries requested the Secretary-General of the United Nations to mediate and to propose a solution in the form of a ruling, which both Parties
agreed in advance to accept.
• The Secretary-General's ruling, which was given in 1986, required France to pay US $7 million to New Zealand and to undertake not to take certain defined
measures injurious to New Zealand trade with the European Communities.
• The ruling also provided that Major Mafart and Captain Prieur were to be released into French custody but were to spend the next three years on an isolated
French military base in the Pacific.
• The two States concluded an agreement in the form of an exchange of letters on 9 July 1986 ("the First Agreement"), which provided for the implementation
of the ruling.
o Under the terms -it provided that:
▪ 2 agents were to be transferred to a French military facility on the island of Hao for a period of not less than three years. They will be
prohibited from leaving the island for any reason, except with the mutual consent of the two governments.
▪ contained provision for arbitration of any dispute arising out of the agreement. After New Zealand invoked this provision
• The transfer took placed. However, due to Major Mafarts health, a French medical team advised that he be evacuated to France for treatment.
• France sought New Zealand's consent to this "urgent, health-related transfer" but New Zealand's request that its own medical team should also examine
Mafart before he was repatriated was denied when France refused to allow a New Zealand military aircraft carrying a doctor to land at Hao.
• In the end, Mafart left Hao, without the consent of New Zealand. Following medical treatment in Paris, Mafart was permitted to remain in France.
• New Zealand doctors who examined Mafart after his return to Paris agreed that he could not have been satisfactorily examined in Hao but denied that the
evacuation was an emergency measure and concluded that Mafart's health was not such as to preclude his being returned to Hao after the treatment had
been concluded.
• Captain Prieur was repatriated in May 1988.
• The French authorities notified New Zealand that she was expecting her first child and asked consent to her repatriation. New Zealand again requested that
an independent medical examination be made.
• France acceded to this request and a New Zealand doctor was due to arrive in Hao on 6 May.
• The French authorities notified New Zealand that Captain Prieur's father was dying of cancer and that her immediate evacuation had thus become necessary.
• She was repatriated without the consent of New Zealand and never returned to Hao.
• The 1986 Agreement contained provision for arbitration of any dispute arising out of the agreement. Hence instant case.
WON there was a violation of international law and if France was in breach of its international obligations in their agreement with New Zealand?
RULING:
The court held that under the title "Circumstances Precluding Wrongfulness" the International Law Commission proposed in Articles 29 to 35 a set of rules which include
three provisions, on force majeure and fortuitous event (Article 31), distress (Article 32), and state of necessity (Article 33), which may be relevant to the decision on this
case.
INVOCATION OF FORCE MAJEURE
On force majeure – it held that NZ is right in asserting that the excuse of force majeure is not of relevance in this case because the test of its applicability is of absolute
and material impossibility, and because a circumstance rendering performance more difficult or burdensome does not constitute a case of force majeure. Consequently,
this excuse is of no relevance in the present case.
INVOCATION OF DISTRESS
Distress had to be distinguished from the more controversial notion of necessity. What was involved in distress was a choice between departure from an international
obligation and a serious threat to the life or physical integrity of a State organ or of persons entrusted to its care. Necessity, on the other hand, was concerned with
departure from international obligations on the ground of vital interests of State.
AS TO THE CASE OF MAJOR MAFART

For distress to be applicable in the cases of Major Mafart and Captain Prieur, three conditions were required:
(i) the existence of exceptional medical or other circumstances of an elementary nature of extreme urgency, provided that a prompt recognition of the
existence of those circumstances was subsequently obtained from, or demonstrated by, the other Party;
(ii) the re-establishment of the original situation of compliance in Hao as soon as the circumstances of emergency had disappeared; and
(iii) a good faith attempt to obtain the consent of New Zealand under the terms of the First Agreement (pp. 553-5).
In the case at bar, it appeared that his initial evacuation, it was carried out without the consent of New Zealand, was not wrongful, since subsequent examinations showed
that he required medical treatment not available in Hao. This was justified in circumstances of extreme distress, where his life was in danger.
HOWEVER, the court considers that France was in violation because after such treatment, France did not return Major Mafart when he was found to have recovered. The
fact that he was not fit for military service overseas, in terms of French military law, was no justification for the decision since his assignment on Hao was not a normal
military assignment and it was not necessary for compliance with the First Agreement that he perform any military duties at all while on Hao
AS TO THE CASE OF CAPTAIN PRIEUR

France committed a material breach.
1. by not endeavoring in good faith to secure the consent of New Zealand to Captain Prieur's immediate repatriation
2. by France in removing Captain Prieur from Hao
3. failing to return Captain Prieur to Hao
The fact that Captain Prieur might have been entitled to leave under French military law was no justification, since a State was not entitled to rely upon its own domestic
law as grounds for failure to comply with its international obligations.


Public International Law-Recits Notes Case Digests-Pandi-Module 5-7

Uploaded by

Copyright:

Available Formats

Public International Law-Recits Notes Case Digests-Pandi-Module 5-7

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Public International Law-Recits Notes Case Digests-Pandi-Module 5-7

Uploaded by

Copyright:

Available Formats

PUBLIC INTERNATIONAL LAW | PANDI | RECITS NOTES

NOTTEBOHM (SECOND PHASE) (LIECHTENSTEIN V GUATEMALA)

ISSUE: WON IT IS ADMISSIBLE

1 | ANDRIN – CABASAG - ODCHIGUE

HONG KONG GOVT. V. MUNOZ

WON IS A DOUBLE CRIMINALITY RULE?

3 | ANDRIN – CABASAG - ODCHIGUE

ISSUES AND RULINGS:

ISSUE: Won there was a violation of article 6

5 | ANDRIN – CABASAG - ODCHIGUE

6 | ANDRIN – CABASAG - ODCHIGUE

Thus, after solemnly proclaiming the inviolability of the premises of

The Court Decides that

Diplomatic immunity is an exception to the general rule of territorial jurisdiction.

INVIOLABILITY OF THE PREMISES OF AN EMBASSY - absolute

*Read criminal immunities and personal immunities below*.

From Vega Notes:

What are the diplomatic privileges and immunities?

What privileges do Ambassadors have?

9 | ANDRIN – CABASAG - ODCHIGUE

INVIOLABILITY (absolute) OF THE PREMISES OF AN EMBASSY

Two difficult related issues to the notion of inviolability:

SEARCHING OF DIPLOMATIC BAGS

Suggestions not to treat this provision mandatorily:

10 | ANDRIN – CABASAG - ODCHIGUE

CRIMINAL OFFENSES AND PERSONAL IMMUNITIES

Vienna Convention on Diplomatic Relations:

CASE : Underhill v. Hernandez, 168 US 250 (1897).

11 | ANDRIN – CABASAG - ODCHIGUE

ISSUE: W/N Hernandez can be made liable?

● We agree with the circuit court of appeals that

Re: Jurisdiction of the Court

Prayer of the Republic of Djibouti:

13 | ANDRIN – CABASAG - ODCHIGUE

● The French Republic requests the Court to declare”

Re: The French Media Issue

15 | ANDRIN – CABASAG - ODCHIGUE

The Basle Convention

State Immunity in respect of civil proceedings for torture

The prohibition of torture in Kuwait and under international law

16 | ANDRIN – CABASAG - ODCHIGUE

Criminal Jurisdiction of the UK over acts of torture

RULING of the COURT

Applicability of Art. 6 of the Convention

Compliance with Article 6

Conclusion: No redress was given to the applicant.

MODULE 7: STATE RESPONSIBILITY

BOSNIA AND HERZEGOVINA V. SERBIA AND MONTENEGRO

“Article 4 Conduct of organs of a State 1. The conduct of any State organ

18 | ANDRIN – CABASAG - ODCHIGUE

“Article 8 Conduct directed or controlled by a State The conduct of a

19 | ANDRIN – CABASAG - ODCHIGUE

US V. IRAN CASE CONCERNING US DIPLOMATIC AND CONSULAR STAFF IN TEHRAN

On the events that occurred following the event

20 | ANDRIN – CABASAG - ODCHIGUE

LAW OF TREATIES V. STATE RESPONSIBILITY

RAINBOW WARRIOR CASE

INVOCATION OF FORCE MAJEURE

AS TO THE CASE OF MAJOR MAFART

AS TO THE CASE OF CAPTAIN PRIEUR

Read criminal immunities and personal immunities below.