6.

3 International Law

(Assignment Submission)

Faculty in charge
Dr.Gitanjali Ghosh
(Assistant Professor of Law)

Submitted by-

Uditanshu Misra

(SM0117057)

Third Year, Sixth Semester

National Law University and Judicial Academy, Assam

25th October, 2020

ANSWER TO QUESTION 1

The issue raised in the stated problem is that whether Chuck Bass and Blaire Bass are criminally
liable under various international instruments. The Vienna Convention on Diplomatic Relations,
1961 (the VCDR) and the Vienna Convention on Consular Relations, 1963 (the VCCR) are the
related international instruments in this context.

Whether Chuck Bass and Blaire Bass are liable under the VCDR

Article 29 of the VCDR ensures that an individual belonging to a diplomatic agency is

inviolable. Furthermore, Article 31 of the VCDR specifically states that a diplomatic agent shall
enjoy immunity from the criminal jurisdiction of the receiving State. As a diplomatic agent,
Chuck Bass must not be arrested or detained in compliance with the mandate of Article 29 of the
VCDR. He shall not be liable for any sort of arrest or detention. He also enjoys protection under
Article 31 of the VCDR from India's criminal jurisdiction.

In this case, Blaire Bass is the spouse of Chuck Bass, who is a diplomatic agent. Under Article
37(1) of the VCDR, if they are not nationals of the receiving State, members of the family of a
diplomatic agent forming part of his household shall be entitled to enjoy the rights and
immunities provided for in Articles 29 to 36. Therefore, in compliance with Article 31(1) read in
consonance with Article 29 of the VCDR, Blaire Bass is entitled to enjoy immunity from arrest
and detention in India. Furthermore, under Article 37(1) read in accordance with Article 29 of
the VCDR, she is entitled to enjoy protection from the criminal jurisdiction of India.

Article 32 of the VCDR, however, sets down a provision to waive such immunity. Article 32(1)
provides that the sending state can waive immunity from the jurisdiction of diplomatic agents
and individuals enjoying immunity under Article 37. Para 2 of Article 32 provides that such
waiver must be expressed. Para 3 of Article 32 provides that if a diplomatic agent or a person
enjoying immunity from jurisdiction under article 37, initiates proceedings, in respect of a
counter claim, directly related with the principle claim, such immunity will be deemed to be
waived. It is claimed that neither the United States has waived the immunity of Chuck Bass and
Blaire Bass in this case, nor has it launched any criminal proceedings with regard to a counter
argument, so it may be concluded that the rights is not waived. However, where the US waives
its protection pursuant to Article 32, it can be placed under India's criminal jurisdiction.
As long as Chuck Bass maintains diplomatic immunity in the Indian Jurisdiction, he will not be
found criminally liable. However, as provided for in Article 9(1) of the VCDR, the receiving
State can inform the sending State at any time that the persona non grata is the head of the
mission or any member of the diplomatic staff of the mission. The sending State should, in any
such situation, either recall the individual involved or terminate his duties with the mission.
Article 9(2) provides that the receiving State may refuse to accept the person concerned as a
member of the mission if the sending State either refuses or fails to perform the duty within a
suitable period of time.

India should then tell the US that Chuck Bass is persona non grata, and ask the US to either call
him back or terminate his duties. If the United States either declines to do so or fails to do so
within a fair period of time, India will refuse to accept him as a member of the mission and will,
thus, place both Chuck Bass and Blaire Bass under India's criminal jurisdiction.

Whether Chuck Bass and Blaire Bass are liable under the VCCR

Blaire Bass is an employee of the Consulate of the United States in Kolkata , India. A consular
employee is specified by Article 1(e) of the VCCR as any person working in the administrative
or technical service of a consular post. Article 43 of the VCCR states that, within the jurisdiction
of the judicial and administrative authorities of the receiving State, consular officers and consular
employees shall be liable to actions carried out in the execution of their consular functions. It is
claimed that this Article shall not extend to Blaire Bass in the present case, because the murder
of Jack was not carried out by her in the exercise of her consular functions. Hence, under VCCR,
she does not assert immunity.

Article 53 of the VCCR states that the members of the families of a member of the consular post
comprising part of his household shall be entitled to the privileges and immunities laid down in
the present Convention from the date on which they are entitled to the privileges and immunities
or from the date of their entrance into the territory of the receiving State from the date on which
they became a member of that family, irrespective of the date of their entrance into the territory
of the receiving State. In this case, Chuck Bass is Blaire Bass 's family, but because she is not
excluded from the jurisdiction of the receiving State herself, since the act of killing Jack was
performed by her outside the scope of her consular functions, under Article 53 of the VCCR,
Chuck would not obtain immunity.

It is then concluded that while both Chuck Bass and Blaire Bass are unable to assert VCCR
diplomatic immunity, they would experience VCDR diplomatic immunity. Therefore, both
Chuck and Blaire would not be liable under the criminal jurisdiction of India, as per the
applicable provisions of the VCDR.

ANSWER TO QUESTION 2

The issue raised in the case is with regards to the obligations of Beruna against Felimath,
Mezreel and Redhaven in accordance with the Vienna Convention on the Law of Treaties, 1969.
The relevant legal instrument applicable in the present case is Vienna Convention on the Law of
Treaties, 1969 (the VCLT)

States of Beruna, Felimath, and Redhaven have entered into a treaty in the state of Namia and the
purpose of the same is sharing of water of Rush River and governance of setting up of a hydro-
electric power project. The provisions of the treaty had been accepted by Beruna but a
reservation was made which gives modifications to the provisions such that during the draught
periods in Beruna, the water shall not be shared. The aforementioned reservation had been
accepted by both Felimath and Redhaven. Beruna is not under an obligation to share river water
during the times of draught taking into consideration these two States, and going by same lines
and applying the principle of reciprocity, both Felimath and Redhaven do not have to share water
during such periods. However, an objection to Beruna's reservation was put forth by Mezreel and
thus Beruna is obligated to share the water during drought periods and Mezreel is obligated to do
the same. The treaty entered into by the four States is a treaty within the scope of the Vienna
Convention on the Law of Treaties, 1969 (subsequently referred to as the VCLT) and is
compliant with the concept of the treaty provided for in Article 2(1)(a), which states that “an
international agreement concluded between states in written form and governed by international
law, whether embodied in single instrument or in two or more related instruments and whatever
its particular designation.” A reservation made by the state of Beruna as was stated above in the
treaty entered into by the upper riparian states of Beruna and Felimath and the lower riparian
states of Mezreel and Redhaven at Namia. In this case, it should be noted that a reservation
means, under Article 2(1)(d) of the VCLT, that: “a unilateral statement, however phrased or
named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty,
whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in
their application to that State.”

The general rule is that reservations can only be made with the permission of all the states
participating in the process and, thus, to receive the permission of all other parties to the treaty, a
state that wants to make a reservation is necessary. If this is not practicable, then, without
hesitation, the state must either become a party to the treaty or not become a party at all. This
restrictive approach was not accepted by the International Court of Justice in the Reservations to
the Genocide Convention Case, wherein there were no clause permitting reservations made and a
number of objections were made. In that case, the Court held that, if a reservation is consistent
with the intent and purpose of the Convention, a state which has made and retained a reservation
which has been refused by one or more of the parties to the Convention but not by another can be
deemed to be a party to the Convention. This opinion was endorsed by the 1969 VCLT. In order
to ensure that treaty obligations are consistent with its municipal law, a State is in a position to
make a reservation to an international agreement on ground, inter alia, to be a party to the
agreement while not yielding to certain provisions against its interest, to not bind itself to the
procedural obligations of the agreement. As provided for in Article 19 of the VCLT, 1969, a
reservation can be made by a State, unless that reservation is forbidden by the Treaty, only
certain particular reservations are made by the Treaty or the reservation is incompatible with the
intent and purpose of the Treaty.

Beruna reserved the terms of the treaty that had been entered into in relation to the distribution of
the Rush River water during times of drought. According to Article 20(1) of the VCLT, 1969, as
defined by the treaty, a reservation does not require subsequent acceptance by another entity. The
details given do not define the condition that all parties eventually adopt the arrangement in
compliance with that arrangement. It is specified, pursuant to Article 20(2), that if a small
number of parties are negotiating and the object and intent of the treaty and the implementation
of the treaty are contingent on the totality of the implementation of all parties, all parties are
necessary to approve the treaty. As the parties to the arrangement wish to share the combined
source of the Rush River water, this reservation can be claimed as against the intent and aim of
the treaty. Therefore, Felimath, Mezireel and Redhaven 's approval can be seen as a prerequisite
for the reservation to be legally successful.

Acceptance can be granted either in writing, as provided for in Article 23, or in a tacit manner by
not objecting to the reservation for a period of more than twelve months after the reservation has
been informed, or by agreeing to be bound by the treaty, whichever is later referred to in Article
20(5). It is important to note here that the reciprocity principle is triggered when reservations are
acknowledged. From the following example, this can be interpreted. In the Vienna Convention
on Diplomatic Relations, 1961, Libya was limited to 'diplomatic bag' provisions. This allowed
Libya, with the permission of the state whose bag it was, to check for the diplomat's bag. Since
the United Kingdom approved this reservation, it could do the same with respect to diplomatic
bags from Libya.

The stated reservation made by Beruna was approved by Felimath and Redhavan. Therefore, at
the time of draught, Beruna will not share the water of the River Rush with Felimath and
Redhavan, and will do the same with Beruna. This is the legal result of recognition on the basis
of the principle of reciprocity defined in compliance with Article 21(1)(b) of the VCLT, 1969. In
addition, Mezireel objected to the reservation made by Beruna, making the treaty 's obligations to
exist equally between each other, i.e. Whatever the conditions of a draught, Beruna and Mezireel
would have to share the water of the Rush River with each other. An challenge to a reservation
makes it as though the reservation made does not exist and no treaty commitments are complied
with. This is corroborated by Article 21 (2). A reservation or opposition to or removed from a
reservation shall be conveyed in writing and shall be transmitted in compliance with Article
23(1) and Article 23(4) to the Contracting State Party to the Convention. Initially, Redhaven
objected to Beruna 's reservation, but eventually dropped the objection, meaning that Redhaven
had to convey it in writing and put it to the attention of other parties. Until there was an
objection, both Beruna and Redhaven would have to share the Rush River water during the
draught. As the reservation objection has been dropped, both Beruna and Redhaven will not have
to share the Rush River water during the draught.

ANSWER TO QUESTION 3

Legal Analysis of Humanitarian Intervention

Reflecting on the shortcomings of the international community to intervene in Rwanda and
Kosovo, former Secretary-General Kofi Annan urged the Member States of the United Nations
to find common ground in upholding the principles of the Charter and working in defence of our
common humanity. A year later, in his Millennium Report of 2000 to the General Assembly, he
reaffirmed the dilemma and reiterated the challenge:

“If humanitarian intervention is an unacceptable assault on sovereignty, how should we respond

to a Rwanda, to a Srebrenica - to gross and systematic violations of human rights that offend
every precept of our common humanity? Which should prevail - sovereignty or humanity?”

Over the past forty years, a number of countries have justified unilateral military action in one
way or another by referring to the 'customary law' of military humanitarian intervention, and the
international community has, without precedent, declined to accept these acts as legitimate. It
should be remembered that if humanitarian intervention were to be carried out, there should be a
clear and valid humanitarian rationale along with an effective procedural and practical legal
regime to support it. Humanitarian intervention is used as a way of halting or preventing a
serious breach of human rights in a state that is either unwilling or unable to defend or
deliberately exploit its own population. The decade of the 1990s was known as a decade of
humanitarian intervention, during which many humanitarian interventions were approved by the
UN. In the 1990s, even as the Security Council was prepared to authorize humanitarian
intervention, the United States and its allies conducted military action on three separate
occasions for express humanitarian purposes, in the absence of permission from the Security
Council for such particular military action. Any cases of interference that were unauthorized,
however, were considered acceptable. It is possible to note the involvement of NATO in Kosovo
in 1999, the military intervention in Libya, etc. The inviolability of the territorial sovereignty of
the states is the most relevant concept of international law. This theory has been recognized as a
standard for the prohibition of intervention with other states' internal affairs. As provided for in
Article 2(4) of the Charter of the United Nations, this, by banning the use of force or the
possibility of the use of force against one another, protects the territorial integrity and political
freedom of states. The right of self-defence pursuant of Article 51 of the Charter of the United
Nations and collective security measures pursuant to Chapter VII of the Charter of the United
Nations are an exception to this policy.
Some support was given to the doctrine of humanitarian action as being legitimate in the pre-
Charter laws. The recognition of the doctrine may be traced back to the works of Hugo Grotius,
the Father of International Law.    The intervening states invoked this doctrine mainly in the later
half of the 19th century, but after the Second World War, circumstances changed. With major
exceptions, all the uses of force began to be outlawed after the war, other than in the allowable
furtherance of self-defence. The United Nations Charter entered into effect and the legal system
was entirely separated from the pre-existing set of laws under customary international law. It is
evident from the legislative background of the UN Charter that the drafters wanted to declare all
the reasons for the military use of force invalid, with the exception of those mentioned in the
Charter. Accordingly, with Article 2(4) replacing the pre-Charter Law, there appears to be some
kind of discrepancy which occurs with regard to current events concerning humanitarian
intervention. Consequently, this report does not cover any legitimate action on humanitarian
grounds.

The judicial interpretation of the same has been provided for in the Nicargua Case, in which the
ICJ has specifically ruled that the use of force cannot be treated as an effective way of gaining or
restricting protection for human rights and, as such, no right of intervention exists in
international law and, as a result, the use of force is contrary to international law. While
humanitarian intervention exists in state practice, under Article 38(1) of the Legislation of the
ICJ, state practice is considered to be a source of law and there is an agreed notion that state
practice cannot override treaty and customary law, all of which do not permit the use of force
except for self-defense. The fact that humanitarian intervention exists, amid all this, cannot be
ignored. The lack of legally binding content regulating the humanitarian action doctrine has
contributed to a situation of questions of legality. There is no law regulating the immunity from
the use of force from humanitarian action, as one does for the use of collective defense and self-
defense measures.

The scholars in favour of the doctrine claim that if humanitarian intervention were legitimate,
any benefit from altruistic interventions would outweigh the very expense of the possible misuse
of pretextual interventions. A pretextual interference is a situation where the use of military force
by the state in another state is in search of its own benefit and not for the protection of human
rights, and altruistic actions are, on the other hand, meant to protect human rights. Consequently,
the legality of humanitarian intervention would not imply that humanitarian intervention is
blindly recognised as a permissible law, yet rather appropriate if it complies with some standard
criteria.

Intervention on humanitarian grounds is focused on the fact that no State has the privilege to
authorise human rights violations, and therefore, if such violations take place, another State or
States can intervene to put an end to them. The law must also establish a system to accommodate
and control the phenomena, taking into account that humanitarian intervention exists. In the view
of some scholars, in order to stand the test of legitimacy, humanitarian action should be
authorised by the Security Council. A variety of instances have arisen where the Security
Council has refused to take on the responsibility for collective security. It is in acute situations in
which the most basic human rights are massively challenged, where the United Nations and
regional organisations – crippled by great power disputes about the sacrosanct principles of
sovereignty and non-intervention, outside of the colonial and para-colonial frameworks – have
been unable or unwilling to take any meaningful action. In addition, Chapter VII deals with what
the Security Council is capable of doing, but does not per se control intervention on humanitarian
grounds, nor does it clarify what, how, when or when a potential intervention on humanitarian
grounds could take place.

While it is a step to consider and accept that the approving authority must be the Security
Council, it is equally necessary to analyze the situation and to decide whether action is
warranted. Therefore, prior approval from the Security Council should be required by the legal
system, highlighting the 'humanitarian' element as a prerequisite motive. It should also mandate
the recourse to military force as the last resort and provide for the supervision and accountability
of the United Nations to the Security Council in carrying out such a mission, as well as advocate
the need to comply with the accepted principle of respect for the human rights of the people of
the intervened state. In itself, a legal instrument or provision is not a safeguard. A law could
never guarantee the absolute effectiveness on humanitarian grounds, of any intervention
initiative. But a basic norm of agreed action and protocol is set with a law in force that may well
prove to be helpful in putting the dysfunctional state of affairs correct as they actually exist.
Therefore, scholarly debates should stop focusing on whether or not the practise should be
permitted and move to evaluate the expected standard and standard of conduct that must be
adhered to for humanitarian purposes during an intervention. The truth is that humanitarian
intervention is here to remain, and instead of attempting to get rid of it there is more prudence in
allowing the lesser evil of a simplified and legally-regulated method of humanitarian intervention
to proceed. If such an interference mode is accommodated under the statute with a specifically
defined 'expected standard' to stick to, its realistic operation can be regulated and streamlined to
bring successful outcomes.

Responsibility to Protect: Important Aspects and Evolution

The Report of the International Commission on Intervention and State Sovereignty

(ICISS) (2001)

Kofi Annan, the then Secretary General of the United Nations, discussed the issue of
humanitarian intervention in the Millennium Report to the General Assembly in 2000. In the
General Assembly, this address received a mixed response. Canada, however, reacted to this
challenge and created an international advisory group called the International Commission
on Intervention ad State Sovereignty (ICISS). This same Commission here for the first moment
used the term “Responsibility to Protect”as the title of the report and the concept thereafter
prominently entered the international stage.

First, the ICISS report recommended moving the discussion from the "right to intervene" to the
"responsibility to protect" in order to take a more holistic stance in such a manner that both
mitigation and post-conflict assistance are undermined. Secondly, the principle further aimed to
dissolve the conflict between state supremacy and interference by stressing that supremacy
means a state's duty to defend people from violations of human rights. Therefore, when the state
does not discharge its sovereign responsibility, it becomes the responsibility of the international
community to act. The report split the responsibility to protect into three sub-responsibilities,
including the duty of stopping, responding and restoring. The obligation to deter consists of steps
aimed at preventing major human rights abuse in the first place. The responsibility to rebuild is
the responsibility that arises after a conflict to promote the sustainable development of a stable
and secure society, and the duty to respond is the normative core of responsibility for protection.

The study that should be pursued before a military intervention under 'The Responsibility to
React' also laid down some precautionary principles. Firstly, the military action must be
motivated by the right intention i.e to stop humanitarian crisis. Secondly, after all other steps
have been exhausted, it can be seen as a last resort. Thirdly, in order to protect civilians, the
military force used must be proportional to the objective. Lastly, there must be a fair risk that the
result of action should not be greater than that of inaction.

The Report of High Level Panel on Threats, Challenges and Change (2004)

The High Level Panel highlights the state's responsibility for the welfare of its people and the
international collective responsibility to protect them. In 2004, the recommendations made by the
ICISS received enormous recognition and endorsement by the High Level Panel on Threats,
Challenges and Change of the Secretary General. With some changes and modifications in the
original report, this panel adopted the idea of 'Responsibility to Protect'. It was further concluded
that it was only with the endorsement of the Security Council that any such responsibility could
be exercised. The panel also asserted that it was not possible for the State to use the principle of
non-intervention to commit gross human rights violations. It further added that, pursuant to
Article 24 of the UN Charter, such acts must be regarded as a threat to international peace and
security and must therefore provoke action from the Security Council.

The Report of the Secretary –General in Larger Freedom (2005)

In 2005, the Secretary General gave a report entitled "In Larger Freedom: For Development,
Security and Human Rights for All," which emphasizes on Responsibility to protect by offering a
wider view of the ICISS Report by reviewing it in the light of human dignity and the rule of law.
It claimed that Responsibility to protect should be followed and acted upon in times of need.
This report highlighted the need to identify better ways and steps for the Security Council to take
action in the context of the humanitarian crisis.

The 2005 World Summit Outcome and Further Endorsement of the Doctrine

In 2005, for the first time, only the Secretary General and the specialist commissions were
deemed to have responsibility for protection. At the 2005 World Summit, the heads of state and
government accepted the responsibility of collective protection. The Result Document of the
World Summit mentions the potential possibilities of 'Responsibility to Protect' in paragraphs
138, 139 and 140. These representatives of different states jointly acknowledged and promised to
act in compliance with the responsibility of every state to protect its populations from mass
atrocities such as genocide, war crimes, ethnic cleansing, and crimes against humanity. In
addition, focus has been put on the international community’s duty to protect these communities
in the context of humanitarian crisis. In this situation, it is the responsibility of the international
community to use diplomatic and peaceful means to protect civilians. If these means are not
sufficient to deal with the crisis, the Security Council should be prepared, in compliance with
Chapter VII of the UN Charter, to take "timely and decisive" steps. The World
Summit, Outcome Document has shown that the responsibility for protecting the international
community has been greatly limited. Genocide, war crimes, ethnic cleansing and crimes against
humanity are restricted to the crimes in relation to which a responsibility to protect would occur.
In this document, the definition of Responsibility to Prevent was hardly noticed. In addition, the
document very vaguely demonstrates the collective action provided for in Chapter VII of the
Charter of the United Nations, which reflects on the readiness to intervene on a timely basis and
on a case-by - case basis. This document neither addresses the particular obligations of the
Security Council nor acknowledges any prospect of military action approved by the General
Assembly or outside the structure of the United Nations. The suggestion alluded to by the High
Level Panel that, without the permission of the Security Council, there might be certain situation
in which action may be countenanced has not found its way into the final report. The
recommendation on the restriction of the permanent members of the Security Council on the use
of veto in these gross humanitarian situations was refused.

The Report of the Secretary-General on Implementing the Responsibility to Protect (2009)

In 2009, the Secretary-General released a report entitled 'Implementing the Responsibility to

Protect,' based on the 2005 World Summit Outcome Document. This report was an attempt to
move the idea of responsibility to protect into a global agenda and to incorporate Responsibility
to Protect within the United Nations framework. This report listed the three 'Pillars' of the
Doctrine of Responsibility to Protect. Non-sequential and of similar value are the foundations.
Like the outcome of the World Summit and the ICISS report, the reports of Secretary-General
Ban assigned exclusive rights to authorize intervention under the responsibility of the UN
Security Council for protection.

Pillar One
Each state has the responsibility to protect its populations from four mass atrocities: genocide,
war crimes, crimes against humanity and ethnic cleansing. The steps for this can include
intensive diplomatic steps to mediate imminent confrontation, the implementation of anti-
corruption policies, the early prosecution of those involved in violent acts, the promotion of
human rights and efforts.

Pillar Two

It is the responsibility of the broader international community to promote and support individual
states in fulfilling that responsibility. Concrete and tailored funding in the form of development
aid, foreign investment, technical assistance, economic benefits, swift police response and more
general capacity building would be critical in this context.

Pillar Three

If a state manifestly fails to secure its citizens, the international community must be prepared, in
a prompt and definitive manner and in compliance with the UN Charter, to take effective
concerted measures. Initially, these steps can be complemented by 'soft' coercion, which can
entail the discovery of international fact, the deployment of peacekeepers, the imposition of
weapons embargoes, the implementation of political and economic sanctions and the
establishment of safe-heavens and no fly-zones. Then, as a last resort, the Security Council could
allow military intervention.

In addition to these pillars, the study has made clear recommendations to state and non-state
actors about their third-pillar obligations. It also encouraged the General Assembly to consider
its further policy on the application of responsibility to protect. Thereafter, at the July 2009
General Assembly meeting, Ban Ki-Moon received approval for his emphasis on prevention and
capacity building as the basis for introducing the Responsibility to protect doctrine. The 2009
report can be seen as a crucial move forward, as it highlighted the need 'not to reinterpret or
renegotiate the results of the World Summit, but to recognize ways of fully faithful and effective
execution of its decisions' and proposed a number of steps to do so. It is to differentiate the
doctrine from 'humanitarian intervention'. As the study said, Humanitarian Intervention posed a
false option of either standing by in the face of disaster or deploying coercive military action to
defend threatened civilians. The Responsibility to Protect attempts to resolve this simplistic
division by recasting sovereignty as Responsibility and then explaining in some depth what
should be the respective rights and responsibilities of nations and the international community to
deter humanitarian disasters.

Legality of Responsibility on Protect on International level

There has been a very progressive convergence of opinion on the political side among the
Member States of the United Nations and that they share the responsibility, both personally and
jointly, to safeguard their citizens from commission of crimes. Today, Responsibility to
Protect is a well-known doctrine of international law, the perimeters of which were established
and created by the 2005 World Summit and the 2009 General Assembly debates. The primary
responsibility falls on the sovereign nation to defend its citizens. The offences to which the
responsibility to protect is confined are mass atrocities such as genocide, war crimes, ethnic
cleansing and crimes against humanity. In comparison, there is minimal gross infringement of
the human rights against which Responsibility to Protect is to be enforced. The responsibility of
the international community with regard to the prevention and security of such crimes occurs
only when the humanitarian crisis could not be avoided by the sovereign state. Furthermore, in
order to cope with the imminent crisis, the international community should mainly provide
assistance for the capacity building of the nation in crisis. However, if it becomes clear that the
State has applied for the discharge of its sovereign obligations and if the assistance of the
international community is proven to be inadequate, then the international community is solely
responsible for defending or avoiding the crisis. On a case-to - case basis, the international
community can take punitive action and may resort as a last resort to an internationally approved
military intervention. Impermissible is unilateral intervention. Since the operation has been
concluded, the international community still has a obligation to maintain peace and security in
the country.

It should be remembered that such arrangements are in the form of diplomatic obligations and
are not per se embodied in international law. In addition, no treaty has embodied the
responsibility to protect. Two requirements have been laid down for it to be considered as a norm
of international law by incorporation into customary international law. Firstly, it must be a matter
of state procedure and must be generally practiced and, secondly, international law must govern
the procedure (opinion juris). By adding these requirements, the responsibility to protect, it is
apparent that actions of the State that are in line with the doctrine are almost non-existent. After
the doctrine 's introduction in 2002, no country or international body has claimed to be acting in
compliance with the terms. It is to be remembered that the presence of well-settled tradition in
the formulation of customary rules might not be entirely important. In the development of
international law, the laws of humanity and the dictates of public opinion are placed on the same
pedestal as state practise, and as such the principle that states have a citizen as well as a
collective responsibility to protect their people from massacres of crimes is a related law of
humanity. Although, despite this, it is not safe to assume that the doctrine has the same power
and effect.

With regard to the second condition, there should be a common belief among nations that the
doctrine should be a binding rule of law in character. As far as this is concerned, it is hard to
explain the presence of opiniojuris. Although the doctrine has been a subject of international
commissions' consideration and recommendation, it does not constitute a legal rule which, by
general consent, binds nations to it. The diverse conception of the doctrine is one reason due to
which this doctrine cannot be accepted as a customary rule that is binding. The responsibility to
protect doctrine in some views was considered having a political rather than a legal character as
in the case of Brazilian view about the doctrine. Therefore, in order to get more clarification as to
the essence of the doctrine, it is appropriate to explore the importance and areas of concern
relevant to its operational reach and important issues as to its purpose and effect. Moreover, the
recent proceedings of the General Assembly took the form of an open dialogue in which the
States shared their views on this doctrine. It ended with a weak procedural resolution and
therefore the confirmation of the existence of a new binding rule of international law was far
from discussion. Another final legal issue that needs to be considered is that the terms of Article
2(4) and 2(7) of the UN Charter have proved to be extremely difficult to align with the doctrine
of external intervention in a nation's domestic affairs. The Security Council remains the sole
arbiter on whether international peace and security is threatened. In recent years, it has become
obvious that there has been a far greater desire to assess the presence of such a threat and it  have
also prepared to go a step further in situations where there is a possibility of a humanitarian crisis
and announce a threat even where transboundary effects have not been apparent. This broad
exercise of the discretion of the Security Council in situations of humanitarian intervention
indicates that there might be one legally recognised way in which the demands for sovereignty
and the prevention of atrocities can be reconciled within the scope of the UN Charter. A new
customary rule as expressed in Council procedure may crystallise as part of international law in
the event that procedure is accepted as recurring and globally relevant.

This rule will enable an exception under Article 2(4) to be made by sanctioning the involvement
of the international community to avoid a humanitarian catastrophe occurring within national
borders pursuant to a preliminary decision by the Security Council pursuant to Article 39 of the
danger posed to international peace and security; and by approving international intervention
pursuant to the provisions of Article 41 and 42. It should also be remembered from the General
Assembly debate that, in cases of humanitarian intervention, far more nations than previously
were able to recognise greater discretion from the Security Council. As a result, there is a
promise of future legal acceptance, and with the basis so important to recognise the international
validity of the responsibility to protect, it will become more deeply founded with time.