Wednesday, November 30, 2011

An International Legal Perspective of the British Embassy Attack in Tehran

Iran has done it again. On 28th November 2011, Iranian protestors stormed the British Embassy compound and a diplomatic residence, tearing down the British flag, breaking windows, vandalizing walls and  holding six embassy staffers “hostage” for a short time. The protest which appeared to have the full support of the Iranian government was in response to Britain’s harsh new sanctions against Iran for its ongoing nuclear weapons’ programme. The incident brought back memories of the diplomatic crisis between Iran and the US when 52 American Embassy personnel were held hostage for 444 days from 4th November 1979 to 20th January 1981 after a group of Islamist students and militants took over the US Embassy in Tehran in support of the Iranian Revolution.

The attack on Tuesday began when about 50 protesters invaded the offices in the vast walled compound housing the British Embassy and its manicured grounds, situated in a busy neighborhood in the heart of Tehran. Outside the gates, thousands of student protesters chanted religious slogans and demanded the expulsion of the British ambassador. In the meantime, 200 to 300 others broke into a British diplomatic residence a few miles north of the embassy, called Qolhak Garden. The facility also houses a school. 

Television images showed protesters, some armed with gasoline bombs, rampaging through offices strewn with papers, and at least one vehicle was shown burning inside the compound. There was ample evidence of the state’s complicity in the attack: police was shown as silent spectators in television footage, and in any case the security forces have maintained strict control over all large protests in Iran ever since the disputed presidential election of 2009. Further evidence of Tehran’s complicity in the attack is apparent from the fact that the embassy attack came a day after Iran’s Parliament approved a measure to expel the British ambassador and downgrade diplomatic relations between the two countries, in retaliation for Britain’s new economic sanctions.

Iran’s semi-official Fars news agency reported that police officers freed six British staff members who had been surrounded by the Qolhak Garden protesters and that 12 of those protesters were later arrested.

The Iranian authorities have organized similar political demonstrations against foreign embassies in the past, intervening only after the protest was well under way and the message was clear.

This attack very clearly proves that Iran has scant regard for the provisions of international law and particularly the provisions of Vienna Convention on Diplomatic Relations, 1961.

Article 22 (1) of the Vienna Convention stipulates that the premises of the mission are inviolable and the agents of the receiving State may not enter them, except with the consent of the head of the mission.
Article 22 (2) of the 1961 Convention enjoins on the receiving State (the host country) 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.

So also Article 30 provides that the private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.

Article 29 lays down that the person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.

All the three provisions referred to above were infringed with impunity in the incident in Tehran.

Iran, by permitting this attack, is also guilty of violation of the provisions of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 1973

A diplomat is an internationally protected person within the meaning of the above-mentioned Convention and at the time when and in the place where a crime against him, his official premises, his private accommodation or his means of transport is committed, is entitled pursuant to international law to special protection from any attack on his person, freedom or dignity, as well as members of his family forming part of his household.

The 1973 Convention vide Article 2 provides
1. The intentional commission of:
(a) A murder, kidnapping or other attack upon the person or liberty of an internationally protected person;
b) A violent attack upon the official premises, the private accommodation or the means of transport of an internationally protected person likely to endanger his person or liberty;
(c) A threat to commit any such attack;
(d) An attempt to commit any such attack; and
(e) An act constituting participation as an accomplice in any such attack shall be made by each State Party a crime under its internal law.

2. Each State Party shall make these crimes punishable by appropriate penalties which take into account their grave nature.

3. Paragraphs 1 and 2 of this article in no way derogate from the obligations of States Parties under international law to take all appropriate measures to prevent other attacks on the person, freedom or dignity of an internationally protected person.

Iran needs to be reminded that apart from the provisions of Vienna Convention, in Islamic tradition too, a messenger should not be harmed, even if coming from an arch-enemy and bearing a highly provocative or offensive message. A hadith attributes this sunnah to the time when Musaylimah sent to the Prophet Muhammad messengers who proclaimed Musaylimah be a Prophet of Allah and the co-equal of Muhammad himself.

Iran has in the past been indicted and held guilty by the International Court of Justice in the case involving seizure of the US Embassy and its personnel in 1979. In the case concerning United States Diplomatic and Consular Staff in Tehran decided on 24th May 1980 by the International Court of Justice, the Court, inter alia, held that the Islamic Republic of Iran, had violated in several respects, 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. The Court also held that Iran was under an obligation to make reparation to the Government of the United States of America for the injury caused by the events of 4th November 1979 and what followed from these events.

Given Iran’s past record, it is indeed far-fetched to expect Iran to abide by the rules of international law. In such circumstances, international community must take cognizance of the inherently delinquent behaviour and adopt “strong measures” to deter and prevent Iran from violating the law of nations in general as well as international treaty obligations.

Monday, November 28, 2011

NATO Attack on Pak Check Post - Ramifications

On 26th November 2011 (around 2.00 am local time), helicopters/aircraft belonging to NATO/International Security Assistance Force (ISAF) carried out an attack, alleged to be unprovoked by Pakistan, on a military border outpost at Baizai area of Mohmand tribal region a lawless border area which abuts Afghanistan's eastern Kunar province, killing about 24 to 28 soldiers including a major and a captain. Fifteen more personnel were wounded and the death toll could rise as condition of some of the injured was reported to be serious. The attack prompted Islamabad to launch strong protest with the United States and close its frontier for supplies to allied forces in Afghanistan. Pakistani authorities responded to the attack by stopping all container trucks and tankers carrying supplies for US and NATO forces in Afghanistan. The attack threatened to further strain the already tense US-Pak relations.

According to the spokesman for the NATO-led ISAF in Kabul the coalition was aware of "an incident" near the border and was gathering information on it. Security forces blocked all entry points to Mohmand tribal agency after the incident and began checking all vehicles, TV news channels reported. Several crossings on the Afghanistan frontier, including Landikotal and Takhtbai, were closed and over 150 NATO supply vehicles sent back to Peshawar.

Pakistan rejected the regret expressed by NATO and warned that the action would have grave consequences. The regret expressed by NATO over the killing of the Pakistani soldiers is "not enough", chief military spokesman Maj Gen Athar Abbas said. "The NATO strike can have grave consequences," he said. NATO Secretary General Anders Fogh Rasmussen on Sunday said he had written to Pakistan Prime Minister Yousuf Raza Gilani to express regret over the "tragic unintended incident".

Apart from closing all NATO supply routes, Pakistan asked the US to vacate Shamsi airbase within 15 days. The base is believed to be used by Central Investigation Agency for operating drones. 

While Pakistan has alleged that the air strike was unprovoked, there are reports suggesting that Afghan troops operating near the Pakistani border came under fire and in response called in NATO air strikes. The officials, who spoke on condition of anonymity because of the sensitivity of the issue, said it was unclear who attacked the Afghan troops before dawn Saturday, but that the soldiers were fired upon from the direction of the Pakistani border posts that were hit in the strikes.

The border area where the soldiers were operating contains a mix of Pakistani forces and Islamist militants.

But there are forces working against a total rupture in the relationship. Pakistan continues to rely on billions of dollars in American military and civilian aid, and the U.S. needs Islamabad's help to push Afghan insurgents to engage in peace talks.

Tensions are likely to exacerbate if militants unleash attacks against hundreds of trucks carrying supplies to U.S.-led forces in Afghanistan that were backed up at Pakistani border crossings after Islamabad closed the frontier.

Suspected militants had destroyed around 150 trucks a year ago after Pakistan closed one of its Afghan border crossings to NATO supplies for about 10 days in retaliation for a U.S. helicopter attack that accidentally killed two Pakistani soldiers.

The situation could become worse this time because Pakistan has closed both its crossings. Nearly 300 trucks carrying coalition supplies are now stranded at Torkham in the northwest Khyber tribal area and Chaman in southwestern Baluchistan province. A prolonged closure of Pakistan's two Afghan border crossings to NATO supplies could cause serious problems for the coalition. Recent reports suggest that the closure of the crossings is permanent. The U.S., which is the largest member of the NATO force in Afghanistan, ships more than 30 per cent of its non-lethal supplies through Pakistan. The coalition has alternative routes through Central Asia into northern Afghanistan, but they are costlier and less efficient. According to the Telegraph, although the US is transporting more of its equipment, food and fuel through Central Asia in an attempt to reduce Pakistani leverage, the route through Karachi still accounts for 49% of supplies destined for the 140,000-strong foreign force.

The incident will have far-reaching ramifications not only on US-Pak relations, but also for the ISAF operations in Afghanistan and the US-led war on terror.

Firstly, ISAF will have to explore the possibilities of opening and maintaining alternate routes for transport of food, equipment and fuel for its forces stationed and operating in Afghanistan. Secondly, Pakistan’s action of closure of the border crossings will most likely be met with cut US military and non-military aid to Pakistan, something which it can ill-afford.

Pakistan’s Afghanistan policy is highly suspect. The US Government and its lawmakers are highly skeptical of Pakistani intentions and its policy of hunting with the hounds and running with the hare. Western officials have alleged that Pakistan has played a "double-game" since 2001, by allying with the US but at the same time providing support to the Taliban and other Afghan insurgents. US officials suspected that the Pakistani ISI had conspired with the Haqqani network in the September 2011 attack on the US Embassy in Kabul. The relations between the two sides have nose-dived since then. This incident may give Pakistan a pretext to withdraw support to the US war on terror, particularly because of the unpopularity of the drone attacks inside Pakistan. And the US too may be looking for an excuse to carry out military strikes inside Pakistan because of Pakistan’s reluctance to take action against groups like the Haqqani network, which Pakistan considers to be a strategic asset.

The most important ramification of this incident is Pakistan’s call to vacate the Shamsi air base operated by the CIA.

First offered to Washington in the early days after 9/11 by the Musharraf regime when it simpered before the American threat that it will be bombed back to the Stone Age if it did not cooperate, Shamsi's US operations was a well-kept secret till February 2009 when Internet trawlers ferreted out Google earth photos showing drone aircraft at the base. News that the US was using Pakistani facilities to carry out its Predator campaign within Pakistani territory against Pakistani targets embarrassed Islamabad no end, sparking off a campaign to evict American assets. Pakistan, it must be noted managed to get US to vacate the Jacobabad airbase, the second of the air base operated by the US. Reports suggest that Pakistan has not been successful in getting the US to vacate the Shamsi base. How did the US manage to cling on to this base? The answer lay in the fact that the air base was not even under Pakistani control. Like with some other parts of the country like areas of Pakistan Occupied Kashmir ceded to China and parts of the Khyber Pakhtunwa given up to extremists, Islamabad earned itself the dubious reputation as a rentier state, it turned out that Shamsi Air Base had been leased out to some Gulf potentates.

During the Pakistan national assembly debate following the Abbottabad operation, Pakistan air chief Rao Qamar Suleman reportedly told lawmakers in camera than Shamsi has been under the control of the United Arab Emirates and Pakistan Air Force had no say in the matter. In fact, the Shamsi air strip was originally built for Arab sheikhs who flew into Pakistan to hunt for the houbara bustard, a rare bird some Arabs believe has aphrodisiac properties.

Now, the US-UAE arrangement in Shamsi rendered the Pakistani establishment impotent. 

In the event of closure of the Shamsi Air Base, the drone operations being carried out by CIA may be adversely affected. The US may have to shift these operations to a secure location in Afghanistan or elsewhere. If such a situation were to arise, then the US may probably adopt a no holds barred approach to taking on terrorists in Pakistan

In conclusion, Pakistan must realise that playing a dangerous double game as they have done so far in Afghanistan is fraught with serious risks wherein allied forces may carry out military strikes as highlighted  by this incident "accidentally". None, but Pakistan alone, will be responsible for such actions.

Thursday, September 22, 2011

Hunt for Energy Sources - A Potential for Conflict

Two potential flash points have come into focus in two different parts of the globe – one in the South China Sea and the other in the Eastern Mediterranean with striking similarities.  The two flash points have a common issue linking them and that is the exploitation of natural resources under the sea. In both the cases, a dominant littoral power is seeking to coerce the smaller states in the region in order to prevent these states from carrying out exploration activities.

In the South China Sea, the dominant power China which claims absolute sovereignty over the waters and the islands located on the sea has been warning the lesser power viz. Vietnam to desist from entering into a venture with India’s Oil and Natural Gas Corporation (ONGC) Videsh for oil exploration in two blocks claimed by Vietnam in the South China Sea. 

Turkey is at the heart of a gas exploration row in the Mediterranean. Israel and the Greek-speaking government of Cyprus are exploring for gas in the eastern Mediterranean, and Israel has laid claim to a massive deepwater gas field discovered in 2009. Turkey, increasingly assertive in the region under Erdogan, disputes Israeli and Cypriot offshore territorial claims and says Cyprus should not exploit resources until it resolves a stand-off with its breakaway Turkish-speaking north.

The quarrel over gas escalated in recent weeks, just as relations between Israel and Turkey abruptly broke down over Israel's refusal to apologize for its raid on a Gaza-bound flotilla last year in which nine pro-Palestinian Turkish activists aboard the Mavi Marmara died. 

Turkey said it would carry out its own energy surveys with the breakaway Turkish Cypriot state - under escort by its war ships if necessary - if Cyprus pressed ahead with drilling. 

Texas-based Noble Energy which is carrying out the drilling operations for Cyprus has been conducting offshore drills in the eastern Mediterranean for Israel since 1998. 

The recent saber-rattling came as Texas-based Noble Energy Inc. began exploratory drilling farther south between Cyprus and Israel around September 18, despite Turkish warnings to halt the project, the semi-official Cyprus News Agency reported. Noble was operating under license from the Republic of Cyprus, the island's internationally recognized government in the Greek Cypriot south.

The developments raised the stakes in a dispute over drilling rights around the divided island.
Turkish leaders say the Republic of Cyprus shouldn't drill for oil and gas on the continental shelf that it delineated with Israel in an agreement last year. Any drilling or maritime agreements, Ankara says, should wait until the island—divided since 1974, when Turkey invaded Cyprus in response to a Greek-backed coup—is reunified, so both the Greek and Turkish populations can benefit.

Turkish Energy Minister Taner Yildiz described the Cypriot exploration project as "a political provocation aimed at consolidating the Greek Cypriot administration's status," and so short-circuiting reunification talks for the island, Turkey's state Anadolu news agency reported.

Mr. Yildiz also reiterated a Turkish warning that it would make its own agreement with the de facto government of Northern Cyprus to delineate the continental shelf north of the island, if Noble Energy were to proceed with its drilling plans. Ankara would then authorize the Turkish Petroleum Corp. to send research vessels to begin exploration in the Turkish and Turkish-Cypriot waters, he said.

The Republic of Cyprus is a European Union member state, but isn't recognized by Turkey. By contrast, Turkey is the only country to recognize the administration of the government of the island's ethnic-Turkish North. The two sides are divided by a United Nations-monitored green line.

Ankara's threat of military action came on the heels of similar threats Turkey made in recent weeks to send naval vessels to escort future aid convoys that attempt to break Israel's naval blockade of Gaza. Those combative policies risk confrontation with Cyprus and Israel, as well tensions with the EU and Washington, diplomats said, noting that Cyprus is an EU member and Noble Energy is a U.S. company.

A spokeswoman for the European Union's foreign-affairs service said Monday in Brussels that the EU urged "Turkey to refrain from any kind of threat or sources or friction or action" that could damage relations in the neighborhood or border settlement talks.

Noble Energy is also involved in developing Israel's Leviathan field, which contains an estimated 16 trillion cubic feet, or about 453 billion cubic meters, of natural gas. Noble's partner in that project, Israel's Delek Drilling LP, has applied to the Greek Cypriot government to activate an option to take a 30% share in the Cypriot exploration license, too, said a senior industry executive familiar with the project.

Washington has not only given Noble Energy a go-ahead to start drilling off Cyprus but backed it up with a State Department statement: "The US supports the efforts to enhance energy diversity in Europe, noting the fact a US company was involved was also positive."

Since September 13, 2011 Turkish troop reinforcements have been reported by debkafile's military sources as having landed in North Cyprus along with drilling equipment. These preparations indicated that Turkey was planning to start drilling in the Cypriot EEZ without reference to Nicosia. This meant that Prime Minister Erdogan, while spouting high-sounding pledges to "preserve "freedom of navigation in international waters," was preparing a wildcat breach of international law and treaties. Athens warned Ankara against pursuing this step.

Since September 14, Turkish warplanes and fighters kept watch on the Homer Ferrington rig belonging to Houston-based Noble Energy as it moved from Israel's offshore field Noa opposite Ashdod to Cyprus's Aphrodite (Block 12) field ready to start work.

It was the first time since the Mavi Marmara episode of May 2010 that Turkish warships came less than 80 kilometers from Israel's territorial waters. debkafile's military sources report that Israeli missile ships and drones kept watch from afar on the Noble rig's movement and tracked Turkish surveillance. As the rig moved into position opposite Cyprus, so too did two Turkish frigates. A Cypriot spokesman said Turkish warships and fighters had not entered the island's territorial waters.

Ankara has questioned Israel and Cyprus' rights to drill for hydrocarbon reserves in the respective Exclusive Economic Zones marked out in an accord they concluded last year.

Interestingly, Greece and Israel concluded a mutual defense pact on September 4, 2011. Ten days later, Prime Ministers George Papandreou and Binyamin Netanyahu agreed to activate the pact in the light of Turkish threats against Israel and to exploration activity in the Mediterranean basin. Israel and Greece have therefore begun to coordinate their fleet movements in the eastern Mediterranean and around Cyprus.

The Eastern Mediterranean could become a potential conflict zone involving Turkey, Israel, Greece and Cyprus and possibly even the US if the Turkish Prime Minister in defiance of international law and norms prevents exploration work by resort to use of force. As of now it remains to be seen whether Erdogan in his quest for becoming another Nasser of the Islamic world opts for a military confrontation particularly with Israel or take recourse like other Muslim rulers and vent his ire on Israel.

Thursday, September 8, 2011

INS Airavat Incident – A Legal Analysis

The INS Airavat, a Shardul-class amphibious warfare ship belonging to the Indian Navy paid a friendly visit to Vietnam between July 19 and July 28, 2011. On July 22, INS Airavat sailed from Nha Trang port in south central Vietnam towards Haiphong, where it was to make a friendly visit. About 45 nautical miles off the Vietnamese coast on the South China Sea, the Airavat was "buzzed" on an open radio channel. (Nha Trang was a key U. S. military base during the Vietnam War, and is an important military port).

The caller identified himself as belonging to the Chinese navy and after asking the Indian ship to identify itself, warned, "You are entering Chinese waters. Move out of here". However, officers on the ship confirmed that no Chinese ship or vessel was seen on the horizon or picked up on the radar. The INS Airavat did not respond to the message or identify itself as demanded and continued on its way. This incident did not get much media attention considering the fact that Indian authorities decided not to make an issue out of it. However, the fact remains that China in conformity with its aggressive behaviour has been trying to act contrary to the tenets of the recognized principles of international law. This insignificant incident brings back memories of the incident involving the USNS Impeccable in March 2009 when the US ship was shadowed and harassed by Chinese ships while operating 75 miles south of Hainan Island. (

Basis of China’s action
The underlying basis of China’s action in July 2011 which has not received much attention in the context of the present incident is the fact that China claims much or all of the South China Sea as its territorial waters. It is relevant to note that South China Sea is replete with disputes. The South China Sea contains several islands, atolls, shoals, reefs and sandbars, many of which are naturally under water at high tide, and some of which are permanently submerged. Given below are the rival claims of the countries of the region in respect of the various islands in the South China Sea:
  • The Spratly Islands, disputed between the People's Republic of China, the Republic of China, and Vietnam, with Malaysia, Brunei, and the Philippines claiming part of the archipelago
  • The Paracel Islands, disputed between the People's Republic of China, the Republic of China, and Vietnam
  • The Pratas Islands, disputed between the People's Republic of China and the Republic of China
  • The Macclesfield Bank, disputed between the People's Republic of China, the Philippines, and the Republic of China
  • The Scarborough Shoal, disputed between the People's Republic of China, the Philippines, and the Republic of China
There is a huge amount at stake. Besides fisheries, the sea, particularly around the Spratlys, is believed to be enormously rich in hydrocarbons. The sea is also a vital shipping route, accounting for a big chunk of world trade.
In response to rival territorial claims of the various countries above mentioned, China tabled its own map, with nine-dotted lines outlining its claim. Joined up, the dotted lines give China not just two island chains, but almost the whole sea. There seems to be no basis for this in UNCLOS. But China points to history. It says the map has been in use since the Republic of China published it in 1946, and, until quite recently, nobody raised objection. According to Robert Beckman, director of the Centre for International Law at the National University of Singapore, “The dotted-line map was first produced by the Chinese government in 1947 and has nine dashes drawn in a u-shape around the islands in the South China Sea. Although China has used this map on several occasions, it has never clarified its position on exactly what it is claiming inside the dotted-line. This has led some to conclude that China is claiming all the waters within the dotted-line as its territorial waters or historic waters. Such a position would be contrary to UNCLOS.
While much attention has been given to the dotted-line map attached to China’s Note Verbale, it should be remembered that the Note does not assert sovereignty over the waters in the dotted-line except for the waters “adjacent” to the islands which arguably only refers to a 12 nm territorial sea. The Note contains no language suggesting that China claims that all the waters inside the dotted-line are its territorial waters or historic waters, or that it has any historic rights in the waters inside the dotted-line. This suggests that China’s claim is only to the islands inside the dotted-line, and to the maritime zones that can be generated from such islands, a position consistent with UNCLOS.”  

                                          Maritime claims in South China Sea (Ref: Wikipedia)

The Law
It is necessary here to refer to some of the relevant provisions of the Law of the Sea Convention 1982 –

Article 89 Invalidity of claims of sovereignty over the high seas
No State may validly purport to subject any part of the high seas to its sovereignty.

Article 87 Freedom of the high seas
1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States:
(a) freedom of navigation;
(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject to Part VI;
(d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI;
(e) freedom of fishing, subject to the conditions laid down in section 2;
(f) freedom of scientific research, subject to Parts VI and XIII.
2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.
Article 95 Immunity of warships on the high seas
Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State.
For the purposes of this Convention, Article 29 defines "warship" to mean a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.
A warship enjoys sovereign immunity from the interference of authorities of states other than its own flag state. A warship cannot be required to consent to an on board search or inspection, nor may it be required to fly the flag of the host nation. (Arts. 32, 58(2), 95, 236).
A reference may also be made to the relevant provisions of the Convention on the High Seas 1958 –

Article 1The term “high seas” means all parts of the sea that are not included in the territorial sea or in the internal waters of a State.

Article 2The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty. Freedom of the high seas is exercised under the conditions laid down by these articles and by the other rules of international law. It comprises, inter alia, both for coastal and non-coastal States:
(1) Freedom of navigation;
(2) Freedom of fishing;
(3) Freedom to lay submarine cables and pipelines;
(4) Freedom to fly over the high seas.
These freedoms, and others which are recognized by the general principles of international law, shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas.

The provisions of the this article seem to have been derived from Dutch jurist Hugo Grotius’ famous treatise Mare Liberum (The Free Sea or the Freedom of the Sea) Grotius had argued that the sea was free to all, and that nobody had the right to deny others access to it. Grotius formulated the new principle that the sea was international territory and all nations were free to use it for seafaring trade. The argument was directed towards the Portuguese Mare clausum policy (meaning closed sea) and their claim of monopoly on the East Indian Trade. The “freedom of the seas” has thus legal as well as political connotations, and it has been one of the cornerstones of maritime law.

 Article 8
1. Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State.
2. For the purposes of these articles, the term “warship” means a ship belonging to the naval forces of a State and bearing the external marks distinguishing warships of its nationality, under the command of an officer duly commissioned by the government and whose name appears in the Navy List, and manned by a crew who are under regular naval discipline.

Article 95 of the 1982 Convention and Article 8 of the 1958 Convention expressly provides for complete immunity to warships from jurisdiction of any State except the flag State.
Assuming for the sake of argument, the Indian ship entered Chinese territorial waters, the international maritime law provides that ships are entitled to right of innocent passage through the territorial sea of the coastal state. Hence, PLA-N personnel questioning the right of the Indian ship to be in the South China Sea and asking it to leave the area is contrary to international law.


China is a known bully and in the recent past it has been coercing foreign vessels in the South China Sea. The harassment of INS Airavat was one of various such incidents. China needs to understand that international waters and waterways are terra nullius and not capable of appropriation. International community and the littoral states of the Asia-Pacific region must co-operate in order to counter aggressive Chinese behaviour.

Monday, June 27, 2011

Steps in the Formation of Treaties

[Note: This article is primarily meant for students of International Law studying the subject at the graduate or post-graduate level]

Introductory Note

According to Martin Dixon and Robert McCorquodale , treaties are evidence of the express consent of states to regulate their interests according to international law. It is important to remember that treaties are the most important source of international law and are increasingly used to codify and develop international law. Since international legal relationship between States and international organizations came to be increasingly governed by written agreements, a need was felt for developing a set of general rules to govern the obligations of the parties to treaties. In 1966, the International law Commission adopted its final report on the law of treaties and in a Conference attended by representatives of more than 100 states, held in Vienna, Austria in two sessions, in 1968 and 1969, the Vienna Convention on the Law of Treaties came to be adopted. The Convention entered into force on January 27, 1980. Another Convention was held in 1986 at Vienna on the Law of Treaties between States and International Organizations or between International Organizations. The 1969 Convention deals with the formation of treaties, entry into force, reservations, and procedure relating to invalidity, termination, withdrawal, and suspension of operation of treaties as well as their interpretation.

Definition and Meaning of the term ‘Treaty’

(1) Oppenheim : International treaties are agreements, of a contractual character, between States, or organizations of States, creating legal rights and obligations between the parties.

(2) McNair : The term treaty means a written agreement by which two or more states or international organizations create or intend to create a relation between themselves operating within the sphere of international law.

Article 2(1)(a) of the Vienna Convention on the Law of Treaties, 1969 defines the term treaty: Treaty means an international agreement concluded between States in a written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.

The term ‘treaty’ is used in a generic sense rather than a reference to a particular form of international agreement. The term treaty covers convention, agreement, arrangement, protocol, exchange of notes, exchange of letters, etc. International law makes no distinction between agreements referred to as treaties and other types of agreements. The name or designation given to an agreement is in itself unimportant and of no legal consequence.

There is no formal requirement in international law for a treaty to come into existence Treaties usually are in written form and the Vienna Convention on the Law of Treaties applies only to those treaties which are in written form. However, it cannot be categorically stated that oral agreements have no legal validity.

Unilateral statements-whether binding: A question that has not infrequently arisen is whether the unilateral statements or pronouncements of a State create any legally binding international obligations. The Legal Status of Eastern Greenland is a case in point. In 1919, the Danish government through its representative in Norway informed the Norwegian government that they would not raise any objection to Norway’s claim over Spitzbergen at the Paris Peace Conference if Norway refrained from challenging Danish claims of sovereignty over all Greenland. M. Ihlen, the Norwegian foreign minister, informed his Danish counterpart that Norway would not create any difficulties in respect of the Danish claim of sovereignty over Eastern Greenland. When the matter came up before the PCIJ, Denmark argued that Norway by the “Ihlen Declaration” had recognized Danish sovereignty over Eastern Greenland. The Court denied that the “Ihlen Declaration” constituted recognition of Danish sovereignty. However, it held that Norway had incurred a legally binding obligation to refrain from contesting Danish sovereignty over Eastern Greenland. The Court did not characterize the “Ihlen Declaration” as an oral agreement, nor did not delineate the circumstances, if any, when a unilateral statement could be binding. The Court in this case appeared to regard the Norwegian statement as being given in return for a Danish commitment not to oppose a Norwegian claim to Spitzbergen.

The agreement entered into between the parties must be governed by international law. Agreements which are subject to some national system of law will not constitute treaties. Where the parties do not possess international legal personality, the agreements entered into by and between such parties will not be governed by international law.

Formation of treaties

No specific form or procedure has been prescribed in international law for the conclusion of a treaty. The parties negotiating a treaty are free to agree upon a language or languages in which the treaty is to be expressed. Though a precise procedure or standard does not exist, following steps are generally adopted in concluding a treaty.

1) Accrediting of Persons by the Contracting States

2) Negotiation

3) Adoption of the text

4) Consent of the States

5) Entry into force

Accrediting of Persons by Contracting States

Normally, the treaty-making capacity of States is exercised by Heads of State or by their governments. However, today, this treaty-making power is rarely exercised by them in person, and is done through representatives. If they appoint a representative for the purpose of negotiating, adopting or authenticating the text of a treaty, or for expressing the consent of a State to be bound by a treaty, he is provided with a formal instrument called Full Powers. Art. 2(1)(c) of the Vienna Convention defines Full Powers: ‘full powers’ means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of a State to be bound by a treaty, or for accomplishing any other act with respect to a treaty.

Full Powers is not necessary if the treaty is concluded by the Heads of States or Governments, Minister of Foreign Affairs and heads of diplomatic mission.


The stage of negotiation is the most crucial stage in the formation of a treaty where the participating States put forth proposals for discussions. After detailed deliberations, the proposals are harmonized and the parties arrive at a tentative agreement.

Adoption of the Text

After negotiations, the form and content is settled by drawing up a text setting out its provisions. The normal rule is that consent of all the participating states is required for adopting the text of the treaty. The principle of unanimity in preparing the text of the treaty in the case of international conferences is unrealistic and is not normally the rule. Article 9 (2) of the Vienna Convention provides that adoption of the text of a treaty at an international conference takes place by two-thirds of the states present and voting, unless by the same majority they decide to apply a different rule.

Consent of the States

The treaties may bind states only when they have given their consent. Some of the ways in which a State may express its consent to be bound by a treaty are by means of signature, exchange of instruments, ratification or accession.

In many cases authentication is not seen as a distinct step as the act of signature serves as authenticating and an expression of willingness to be bound by the treaty. However, in cases where the unsigned text of a treaty is incorporated in the final act of a conference, or where the treaty adopted in an international organization is authenticated by the president of the organization, authentication may be a separate step.


The act of affixing the signature by a State’s representative may express the consent of the State to be bound by the treaty. This can happen only where the negotiating or participating States have agreed that signature should have that effect, by providing in the treaty itself or where it appears from the full powers that a State had intended to give that effect to the signature of its representative or it was so expressed during negotiations. Sometimes, a representative’s signature may be qualified, that is to say it may be affixed ad referendum, i.e. subject to the State’s confirmation. In such a case, the State’s subsequent confirmation constitutes signature of the treaty. In certain cases, where the signature may be subject to ratification, a State will not be bound by the treaty till ratification is complete.

Exchange of Instruments

Article 13 of the Vienna Convention provides the consent of States to be bound by a treaty constituted by instruments exchanged between them is expressed by that exchange when:

(a) the instruments provide that their exchange shall have that effect; or
(b) it is otherwise established that those States were agreed that the exchange of instruments should have that effect.


Article 2(1) (b) of the Vienna Convention on the Law of Treaties 1969 defines ratification as ‘the international act so named whereby a States establishes on the international plane its consent to be bound by a treaty’.

Ratification is mainly required for the States to re-examine the over-all effect of the treaties on their national interests. The other reason for having the step of ratification is to give the States sufficient time to enact legislation to give effect to the obligations which they would assume under the treaty.

Article 14 of the Vienna Convention provides that the consent of a State to be bound by a treaty is expressed by ratification when:

(a) the treaty provides for such consent to be expressed by means of ratification;

(b) it is otherwise established that the negotiating States were required that ratification should be required;

(c) the State’s representative has signed the treaty subject to ratification; or

(d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation.

Form and Mode of Ratification

International law does not prescribe any form of ratification. According to Oppenheim, ratification normally takes the form of a document signed by the Heads of the States or their foreign ministers. It is usual to draft as many documents as there as parties to the treaty, and to exchange these copies between the parties.

Entry into Force

A treaty enters into force in accordance with its provisions. Article 24 of the Vienna Convention provides that a treaty enters into force in such manner and upon such date as it may provide or as the states negotiating the treaty may agree. If the treaty is silent, it enters into force as soon as consent to be bound by the treaty has been established for all the negotiating states. Bilateral treaty enters into force when States exchange documents of ratification. Where ratification is not required, the treaty comes into force after signature and exchange or deposit of signed copies. Multilateral treaties enter into force from date when prescribed number of ratifications or accessions has been made.

1. Martin Dixon and Robert McCorquodale, Cases and Materials on International Law (1995) p 48
2. Oppenheim, International Law Vol. 1 (8th Edition) p 877
3. McNair, Law of Treaties p 4

Tuesday, June 14, 2011

Krittika Biswas Case – Scope of Diplomatic Immunity

Krittika Biswas, the eighteen year old daughter of Debashis Biswas, a Vice-Consul serving at the Indian Consulate General in Manhattan was falsely accused of sending obscene emails to her school teacher and subsequently wrongfully arrested and kept in custody for more than 24 hours in February 2011. She was also sent for more than a month to a special suspension program by her school despite being cleared by investigators. On 6th May 2011 Ms Biswas filed a notice of claim stating that she was suing New York City for $ 1.5 million. The girl is reported to have claimed diplomatic immunity. However, a State Department spokesman, Mark Toner said that immunity did not extend to family members of diplomats. "As a family member of consular officer, rather, she does not enjoy immunity from jurisdiction or inviolability," he told reporters.

Indian Consul General in New York stated that the US State Department was wrong in its reading of the Vienna Convention on Consular Relations and asserted that diplomatic immunity is extended to family members of consular officers.

Insisting that Toner had got it wrong, Dayal pointed to article 53 (2) of the Vienna Convention on Consular Relations, 1963, which says "Members of the family of a member of the consular post forming part of his household and members of his private staff shall receive the privileges and immunities provided in the present Convention..."

The State Department, however, said that it was sticking by Toner's earlier remarks.

This incident involving the Consul’s daughter has resulted in a spat between both the countries. This paper seeks to examine the role of consuls and the nature and extent of immunity available to Foreign Service officers posted in Indian missions abroad.

Consuls – Roles and Functions

There is an assumption that diplomats and consuls hold the same office. Although diplomats and consuls work hand in hand to create and develop foreign relations between States, they are different; not only in the function that they perform, but also in the immunities and privileges that are afforded to them.

Their primary duty is to protect economic interests and any trade relations between the sending and receiving State. Other consular duties include issuing passports, the registration of birth and the solemnising of marriages, executing notarial acts and exercising disciplinary jurisdiction over the crews of vessels belonging to the sending State. The protection of the sending State’s nationals who find themselves in difficulty in the receiving State is an important function and failure of the receiving State to allow right of access to and communication with such nationals may result in action being initiated before the International Court of Justice (ICJ), as did Germany and Paraguay against the US. McClanahan states three provisions with reference to communication and contact with nationals of the sending State. Firstly, that consuls shall be free to communicate and have access to nationals of the sending State and vice versa; secondly, that consuls are to be informed swiftly by the authorities of the receiving State regarding the arrest and detention of any of their nationals, and the nationals shall be informed of such rights; and thirdly, that consuls have the right to visit the nationals and arrange for their legal representation.


The rights, privileges and immunities of consular officers

Article 53 of the Convention provides –

(1) Every member of the consular post shall enjoy the privileges and immunities provided in the present Convention from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when he enters on his duties with the consular post.

(2) Members of the family of a member of the consular post forming part of his household and members of his private staff shall receive the privileges and immunities provided in the present Convention from the date from which he enjoys privileges and immunities in accordance with paragraph 1 of this article or from the date of their entry into the territory of the receiving State or from the date of their becoming a member of such family or private staff, whichever is the latest.

Article 41 of the Convention provides –

(1) Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.

(2) Except in the case specified in paragraph 1 of this article, consular officers shall not be committed to prison or be liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect.

(3) If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except in the case specified in paragraph 1 of this article, in a manner which will hamper the exercise of consular functions as little as possible. When, in the circumstances mentioned in paragraph 1 of this article, it has become necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum of delay.

The definition of “grave crime” depends on the statute obtaining in the receiving State and its interpretation by its judiciary. By no stretch of imagination can sending obscene or threatening emails by a student to his or her teacher be construed as a grave crime.

Consular immunity offers protections similar to diplomatic immunity, but the protection is not absolute and as extensive, given the functional differences between consular and diplomatic officers. For example, consular officers are not accorded absolute immunity from a host country’s criminal jurisdiction (they may be tried for certain local crimes upon action by a local court) and are immune from local jurisdiction only in cases directly relating to consular functions.

In general, consular privileges and immunities are dramatically more limited in scope than those afford¬ed to diplomats, particularly with respect to immunity from the jurisdiction of the receiving state. Consular officers and other employees at consulates have criminal, civil, and administrative immunity only with respect to acts performed in the exercise of consular functions. With limited exception for serious crimes, consular officers cannot be arrested or detained pending trial. Members of the consular staff, however, have no such protection.

The family members of consular employees have es¬sentially no immunity from the jurisdiction of the host state as they do not perform official acts. The determination of whether something qualifies as an “official act” or “consular function” is generally determined by the courts of the receiving state.

In order to appreciate the scope of immunity available to family members of a consular officer, it is relevant to make reference to Article 37 of Vienna Convention on Diplomatic Relations, 1961 which reads as follows:

The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in articles 29 to 36.

This article provides for a near total immunity to both the diplomat and his family from arrest and detention in any form, inviolability of his person, residence and premises, immunity from criminal jurisdiction, exemption from taxation and social security. This level of immunity is not available to a consular officer and his family.

Article 42 of the 1963 Convention provides for notification of arrest, detention or prosecution. The article stipulates that in the event of the arrest or detention, pending trial, of a member of the consular staff, or of criminal proceedings being instituted against him, the receiving State shall promptly notify the head of the consular post. Should the latter be himself the object of any such measure, the receiving State shall notify the sending State through the diplomatic channel.

In his essay, “Rethinking Diplomatic Immunity: A Review of Remedial Approaches to Address the Abuses of Diplomatic Privileges and Immunities”, Mitchell S. Ross says “The executive branch possesses exclusive jurisdiction to determine whether an alien in the United States has diplomatic immunity. President Jimmy Carter delegated this function to the Secretary of State in 1978. The Secretary of State's power to confer or deny immunity is strictly a political determination and is not subject to judicial review.”

In the case of Krittika Biswas, assuming without admitting that the family member of a Consular officer was not entitled to immunity from jurisdiction and from arrest or detention, the local authorities in the US, particularly the New York Police Department ought to have notified the Indian Consulate about the arrest of the girl and permitted consular access as provided in the said Convention. It must be noted that this case is not the first instance of the US being in violation of the letter and spirit of the Vienna Convention on Consular Relations, 1963. The US has been guilty of serious breaches in the past. In 1996, Paraguay came to know that its national Angel Francisco Breard was imprisoned in the United States and had been sentenced to death after being convicted of culpable homicide. However, the national was not given consular access. Paraguay initiated proceedings against the US before the International Court of Justice for violations of the Vienna Convention on Consular Relations, 1963. “The Court unanimously indicates the following provisional measures:

The United States should take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings, and should inform the Court of all the measures which it has taken in implementation of this Order;

II. Decides, that, until the Court has given its final decision, it shall remain seised of the matters which form the subject-matter of this Order.”

In the case of LaGrand Brothers, too, the accused were denied consular assistance under the Vienna Convention. The facts of the case are as under:

On January 7, 1982, brothers Karl and Walter Bernhard LaGrand bungled an armed bank robbery in Marana, Arizona, United States, killing a man and severely injuring a woman in the process. They were subsequently charged and convicted of murder and sentenced to death. The LaGrands were German nationals, having been born in Germany. While they had both lived in the United States since they were four and five, respectively, neither had acquired U.S. citizenship. As foreigners the LaGrands should have been informed of their right to consular assistance, under the Vienna Convention, from their state of nationality, Germany. However the United States authorities (the State of Arizona) failed to do this even after they became aware that the LaGrands were German nationals. The LaGrand brothers later contacted the German consulate of their own accord, having learned of their right to consular assistance. They appealed their sentences and convictions on the grounds that they were not informed of their right to consular assistance, and that with consular assistance they might have been able to mount a better defense. The federal courts rejected their argument on grounds of procedural default, which provides that issues cannot be raised in federal court appeals unless they have first been raised in state courts.

Diplomatic efforts, including pleas by German ambassador Jürgen Chrobog and German Member of Parliament Claudia Roth, and the recommendation of Arizona's clemency board, failed to sway Arizona Governor Jane Dee Hull, who insisted that the executions be carried out. Karl LaGrand was subsequently executed by the state of Arizona on February 24, 1999, by lethal injection. Walter LaGrand was then executed March 3, 1999, by lethal gas.

Germany then initiated legal action in the International Court of Justice against the United States regarding Walter LaGrand. Hours before Walter LaGrand was due to be executed, Germany applied for the Court to grant a provisional court order, requiring the United States to delay the execution of Walter LaGrand, which the court granted.

Germany then initiated action in the U.S. Supreme Court for enforcement of the provisional order. In its judgment, the U.S. Supreme Court held that it lacked jurisdiction with respect to Germany's complaint against Arizona due to the eleventh amendment of the U.S. constitution, which prohibits federal courts from hearing lawsuits of foreign states against a U.S. state. With respect to Germany's case against the United States, it held that the doctrine of procedural default was not incompatible with the Vienna Convention, and that even if procedural default did conflict with the Vienna Convention it had been overruled by later federal law—the Antiterrorism and Effective Death Penalty Act of 1996, which explicitly legislated the doctrine of procedural default.

The U.S. Solicitor General sent a letter to the Supreme Court, as part of these proceedings, arguing that provisional measures of the International Court of Justice are not legally binding. The United States Department of State also conveyed the ICJ's provisional measure to the Governor of Arizona without comment. The Arizona clemency board recommended a stay to the governor, on the basis of the pending ICJ case; but the governor of Arizona ignored the recommendation and Walter LaGrand was executed on March 3, 1999.

Germany then modified its complaint in the case before the ICJ, alleging furthermore that the U.S. violated international law by failing to implement the provisional measures. In opposition to the German submissions, the United States argued that the Vienna Convention did not grant rights to individuals, only to states; that the convention was meant to be exercised subject to the laws of each state party, which in the case of the United States meant subject to the doctrine of procedural default; and that Germany was seeking to turn the ICJ into an international court of criminal appeal.

On June 27, 2001, the ICJ, rejecting all of the United States' arguments, ruled in favor of Germany. The ICJ held that the Vienna Convention on Consular Relations of 24 April 1963 (Vienna Convention) granted rights to individuals on the basis of its plain meaning, and that domestic laws could not limit the rights of the accused under the convention, but only specify the means by which those rights were to be exercised. The ICJ also found that its own provisional measures were legally binding. The court also found that the United States violated the Vienna Convention through its application of procedural default. The court was at pains to point out that it was not passing judgment on the doctrine itself, but only its application to cases involving the Vienna Convention.

Given its past track record, it is not surprising that Krittika’s rights as foreigner and that of a family member of an Indian envoy were denied by the US. However, the critical aspect is whether the teenager was entitled to immunity. It must be said that though the US authorities, particularly the NYPD were responsible for mishandling the case by their acts of wrongful arrest and detention, in view of the foregoing analysis on diplomatic and consular immunity, immunity may not have been available to Krittika Biswas from arrest and detention.

Lastly, what does India need to do? Indo-US relations are quite strong and bilateral ties cannot become hostage to unfortunate incidents like that of Ms Biswas and frisking of Indian dignitaries at US airports. The official Indian reaction to Ms Biswas’ case has by and large been circumspect, while the Indian media has been less than mature in its coverage of the incident. Having said that it is necessary for India to convey to the US, its displeasure and the fact that there is a sense of outrage in India in the way this case was handled by the US authorities. If the US Administration is not sensitive to Indian concerns, then India may be forced to adopt a similarly narrowed interpretation of the Vienna Convention while dealing with its consular officers stationed in India.

[1] The Supreme Court of Hong Kong in the case of Juan Ysmael v S.S. Tasikmalaja ILR 1952 Case No. 94 stated that some of the functions of a consul are similar to those of diplomats, but these functions do not transform a consul into a diplomat.