INTERNATIONAL LAW ….. STUDY NOTES ( By Asmat Jazib ... LL.B.II)
UNIVERSITY LAW COLLEGE QUETTA
Q.1:- Define International law and give its main kinds. Answer: - The term international law has been defined in a variety of ways by different jurists. Some of the definitions may be given as under: 1. By Oppenheim: - “Law of Nations or international law is the name for the body of customary law and conventional rules which are considered binding by civilized states in their intercourse with each other.” 2. By Alf Ross: - Alf Rose defines the term international law as under: “International law is the body of legal rules binding upon states in their relations with one another.” 3. By Lawrence: - According to him, “ international law is the rules which determines the conduct of the general body of civilized state in their mutual dealings.” 4. Modern Definition: - International law has always been in a continuous state of change. In modern period the term International law may rightly be defined as under; “That body of legal rules which regulates the relationship of the Nation States with each other, as well as, their relationship with other International actors.” Beside the above definitions there are at least forty well definitions of international law. Major Kinds of International Law: - There are following two major kinds of international law; 1. Private International Law, and 2. Public International Law. 1. Private International Law: - The term private International law may be defined as under: “ That branch of International law which determines that which law is to be applied to a specific case containing a foreign element is called Private International law.” Explanation: - From the above definition it is evident that private international law is to regulate those cases where a foreign element involves in the matter and the difficulty arose that which law shall be applicable to the case, in other words when it becomes difficult for a domestic court that the law of which state shall be applicable to a certain case because the case contains an element of a foreign state/states law. In such a case private international law comes to help because it determines that which law shall be applicable to a certain case.
2 2. Public International Law: - The term Public International Law may be defined as under: “ A body of legal rules which regulates the relation of states inter se as well as their relations with other non-state entities is said to be Public International law.” Explanation: - From the above definition it may be concluded that Public International law is a set of legal rules which not only regulates the relations between the Nation States but also regulates their relations with other non-state entities. In other words it is a body of rules which regulates the relationship of the international actors with each other. These international actors may be given as under: States, individuals, NGO’s, IGO’s, Multi-National Corporations and Movements. ………………………………………….. Q. 2: - Differentiate between Private International law and Public International Law. Ans: - There is a sheer difference between Private International Law and Public International law. Some points of distinction may be given as under: Distinction Between Private International law and Public International Law
Private International law
Public International law
1.It deals with the individuals of one, two or 1.It deals mainly with the relationship of more countries.
states with each other.
2.The rules of Private International law are 2.The rules of Public International law are the out come of state or state laws
the out come of International customs, treaties and other sources.
3.It differs from state to state
3.Public International law is same for all the states of the world.
4.It has been enacted by the legislature of 4.It comes into force of treaties, customs, the state or states.
international agreements or decisions of arbitral tribunals.
5.It is more civil in nature.
5.It is both civil and criminal in nature.
6.It is enforceable by the concerned state 6.It is enforceable by the adverse view of executive.
nation of the word and fear of war or breakage of diplomatic relations etc.
…………………………………………
3 Q. 3: - Is International law a law in true sense or not? Ans: - The status of International law, that whether it is a law in true sense or not, is a long debate. Jurists have different views to debate as a result of which different schools of thought have come to exist. The view of each of
such school may be given as
under: 1. International law is not a law in true sense: - According to this school of thought International law is not a law in true sense. They give following arguments in support of their view: i. There is no superior political authority ii. There is no legislature to enact the rules as in municipal law, iii. There is no judicial machinery to interpret the laws, iv. There is no executive authority to enforce international law v. International law is frequently violated by states. So, on the basis of the above arguments this school of thought has contended that international law is not a law in its true sense. 2. International law is a law in true sense: - According to this school of thought international law is a law in true sense. They give the following arguments in support of their view: i. For the definition of law a political superior authority is not so necessary, ii. In fact there is a legislative body in the shape of General Assembly and Security Council and the states enter into treaties which also act as legislature, iii. In fact there is a potent judicial machinery in the shape of International Court of Justice ( IJC ). Though its decisions are binding on the parties when they by their mutual consent refer the case to it. iv. It is wrong to say that there is no executive authority to
enforce International law,
because the adverse view of the member states and fear of cessation of diplomatic and economic ties and fear of war act as sanction for its implementation. v. It is right to say that international law has frequently been violated but on this basis the status of international law as a law shall not be denied because law is law and its obedience is totally an other factor. And municipal law has also been violated. vi. Furthermore, states themselves consider it binding upon them. 3. International law is a law but a weak law: - This school of thought accepts the status of International law as a law but according to them it is a weak law. They give following arguments in the support of their view: i. There is no coercive agency to enforce it, ii. It has frequently been violated, iii. Big powers interpret it according to their wishes, iv. Though there is an international court of justice, but it enjoys no compulsory jurisdiction. Its decisions are only binding in circumstances where both the parties by their mutual consent refer the case to it,
4 v. There are some sanctions to enforce it but the same are
to inadequate to attain
the end of international justice. Conclusion: - From the above discussion it may be concluded the international law is a law but a weak law due to many technical defects in it.
Q. 4: - What are the sources of International law? Ans: - Sources of International law means those origins from where it attains its authority and coercive agency. According to the provisions of the Statute of International Court of Justice there are following sources, on the basis of which Court can decide a case: 1. Treaties: - The term treaty may be defined as “ the agreement entered into by Nation states for their relations with each other and to undertake certain duties, obligations and rights is said to be a treaty.” The statute declares that the Court shall have to decide any dispute between Nation States in accordance with the provisions of the treaty between them if existed. 2.
Customs: - Customs are those habits and practices which the nations states
commonly observe and the violation of which is considered as against the courtesy of International behavior. There are certain practices which the world community observes without any express provisions but because of practice they honour the same. So if there is no treaty between the parties to a dispute then the statute binds the Court to decide the case in the light of such international customs. 3. General Principals of Law Recognized by Civilized Nations: - There are certain principles of law, which have been incorporated, in the domestic laws of many countries because of their universal application. So, in default of any treaty or international custom the statute reveals that the court then shall have to decide the case in the light of such general principles of law as recognized by civilized nations of the world. 4. Judicial Decisions: - Usually the Judicial decisions of the International Court of Justice are not binding and they have no value in the sense that they are related and binding only to that certain case for which they have given. And they cannot be cited as strict reference in any other case. But despite the fact the Statute reveals that in case of default of all the above sources the court shall resort to the prior judicial decisions. 4. Juristic Works: - The jurists or publicists also declares rules by legal philosophy and analogy and also by comparing different legal systems of the world and they also analyze the historical perspectives of the different legal systems of the world. So, as they have devoted their lives for the legal study, they must be deserve to consult in deciding a dispute. In other words, their opinion on a specific question of law weights because of the their valuable experiments and sound study on the topic. So, the statute further reveals that if there is no treaty, legal custom and general principles of law then the Court shall resort to writings of these jurists.
5
6. Other Sources: - Beside the above sources there are also some other sources which court can resort for the decision of a case. As for example “Equity” and the resolution by the UN organization. No where in the statute these sources have been declared for the Court to derive law but by practice the common and universal principles of equity have been observed by the courts while deciding cases. And also the UN organization when passes a resolution on specific subject the Court feels its moral duty to decide the case in the light of such resolution if there is no express provisions for deciding a case. ………………………………………….. Q. 5: - What are the subjects of international law? Discuss. Ans: - By subjects of international law it is meant that those entities which possess international personality. In other words subjects of international law are those entities that have rights duties and obligations under international law and which have capacity to possess such right, duties and obligations by bringing international claims. In past the matter was not much debatable because according to the contemporary circumstances and scope of international law only the states were qualified for international personality, but in near past along with the increasing scope of international law many other entities have been given international personality. Now, the question arises; whether they may be treated as subjects of international law or not? And also if they were given the international personality then what shall be the criteria for ascertaining the qualification of their being the subjects of international law. So, there are different theories as regard to the above debate. The most prominent theories may be discussed as under: 1. Realist Theory: - According to the followers of this theory the only subject of the international law are the Nation States. They rely that Nation States are the only entities for whose conduct the international law came into existence. The Nation States, irrespective to the individuals composing them, are distinct and separate entity capable to have rights, duties and obligations and can possess the capacity to maintain their right under international law. So, the Nation States are the ultimate subjects of International law. 2. Fictional Theory: - According to the supporters of this theory the only subjects of international law are the individuals. For the reason, that both the legal orders are for the conduct of human being and for their good well. And the Nation States are nothing except the aggregate of the individuals. Though the rules of international law relate expressly to the Nation States but actually the States are the fiction for the individuals composing them. Due to this reason individuals are the ultimate subjects of International law.
6 3. Functional Theory: - Both the Realist and Fictional theories adopted the extreme course of opinions. But Functional theory tends to meet both the extremist theories at a road of new approach. According this theory neither states nor individuals are the only subjects. They both are the subjects of modern international law. Because for states being primary and active subject of international law have recognized rights, duties and obligations under international law and are capable to maintain the same by bringing international claim. At the other hand in the modern international law individuals have also granted certain rights, duties and obligation under international law and maintain the same by bringing direct international claims. Even, not only states and individuals are the subjects of international law but several other entities have been granted international personality and became the subjects of the international law. This is because of the increasing scope of international law. Conclusion: - If all the above theories are to be analyzed philosophically then it may be concluded that Functional Theory seems to be more accurate because due to modern scope of the international law and world trend. It is obvious that there are many actors in international law, which have been granted rights, duties and obligations, and also to secure their rights and have been provided with capacity to bring international claims. So along with states and individuals neither, certain other entities which have been given international personality shall be treated as subjects of international law but also all those new entities which with due course of time are going to be given international personality. ………………………………………….. Q. 6: - What is the relationship between International and Municipal Law? Ans:- Apparently there seems no relationship between international law and municipal law. Bet if examined with philosophical eve then it would be seemed that there is a relationship between both the legal orders. The test as to observe the relationship between the two systems may be conducted in case of a conflict between the two legal orders. The situation would arise that what law shall be applicable to the case in question. Relationship between Municipal Law and International Law As to relationship between municipal law and international law there are many theories the most prominent one of which may be discussed as under: I. Dualistic Theory: - According to the followers of this theory Municipal law and International law are two separate, distinct and self-contained legal orders, independent from each other. Both the orders enjoy its own spheres and each one is the supreme in its own sphere. They accepts the separate and independent existence because, according to them, there are following points of distinctions between both the orders: 1. Sources: - The sources of both the systems are quite different. Municipal law has its source in the land legislature, while International law has its sources in treaties, entered
7 into by different sovereign states, international customs and general principals of law etc. 2. Subject: - The subjects of both the systems are different. As for as, Municipal is concerned that is an order of the sovereign of the state addressed to the individuals, while at the other hand the subjects of the international law are the states, and to the lesser extent other actors including individuals. In other words Municipal law is between the individuals and international law is between the sovereign states. 3. Principles: - Municipal law is the aggregate of the principles of state legislature, while International law is obeyed because of principle “Pacta sunt servanda.” At the other hand, municipal law has a legal sanctity while International is obeyed because states are morally bound to observe. 4. Dynamism: - It is a unique characteristic of International law that it continuously changes and expands while municipal law remains limited. So, on the basis of the following points of distinction between the two legal systems the supporters of Dualistic Theory contend that they both are separate and distinct orders having separate spheres of application. II.
Monistic Theory: - According to the followers of this theory International law is
not distinct and autonomous body of law, rather there exists only one sets of legal system i.e. the domestic legal order. They have criticized the view adopted by Dualists, and also rejected the alleged distinction between Municipal law and International law as pointed out by the dualists. According to them both the international law and municipal law are related with the same legal system. And it is not possible to treat them severely. i.
Harmonization Theory: - Dualistic and Monistic both are the extreme views. They
both are opposite to each other. But the Harmonization theory impliedly accepts the distinction between the two legal orders but they contend that the differences or conflicts between them may be harmonized. They are of the view that both the systems have been framed ultimately for the conduct of human behavior, so both of them are supreme in that sense. As for as the conflicts are concerned they may be harmonized and should be harmonized. The areas where both the systems are contradicted should be brought to test of harmonization. But such contradiction shall not mean that one of them is void. They exerts a duty on the judges of both municipal courts as well as international courts, to point out those points at which the two systems are collide with each other. According to them the two systems are not like a gear, but like two wheels revolving upon the same axis. According to this theory, neither Municipal law nor International law has supremacy over each other. Conclusion: - It may be concluded that as for as, the Dualistic and Monistic Theories are concerned they are primitive and traditional, due to which they are most popular. However, the Harmonization Theory is comparatively modern. Although no theory can be said to be appropriate, but Harmonization Theory appears to be better because it has regarded that International law, as well as, Municipal law have been so framed for the conduct of the human being, so there should be no contradiction between them, and
8 if any contradiction exist, that should be harmonized, either by courts or the legislature of the concerned state. ………………………………………
Q. 7: - What are the main functions of International law?
Ans: - By functions of International law it is meant that to carry on the objects and aims of international law. As we know that the performance of the functions of international law mainly depends upon the will of the sovereign states. Because there is no political superior authority to administer the law. These are the states, the main subjects of international law, which undertake to perform those intended functions. So, as the will of the states are conditioned with certain political considerations, due to which the process of attaining its end is very slow. Beside this international law plays an important role in the international justice. Some important functions of international law may be given as under: Functions of International law: - Important functions which international law performs in the world justice and politics may be given as under: 1. Maintenance of peace and security, 2. Development of friendly relationship among states and other International actors, 3. Achievement of International co-corporation to solve problems. 4. To solve economic, cultural and humanitarian problems 5. To guarantee political and sovereign integrity of states Beside the above functions there are a number of other functions which international law performs. …………………………………………
Q. 8: - What are the ‘Sanctions’ in international law?
Ans: - The term sanction may be defined in accordance with legal business as under: “ Those tools which are being used to compel the disregarders of law to obey the law, are said to be sanctions.” Sanctions are the coercive agency, which intends to get obedience of law from its subjects. In case of Municipal law there are well-defined sanctions in the shape of government or executive of that particular state. While in international law there are no adequate sanctions to get obedience from its subjects i.e. specially from states. The reason is that international law exists between sovereign states and is dependent on
9 their sweet-will. Beside this fact, there are certain sanctions in international law to compel its subjects to follow it. Sanctions In International Law: - There is two kinds of sanctions in international law, which may be given as under: 1. Sanctions by States, and 2. Collective Sanctions. 1. Sanctions By States: - Under international law, a state; whose right has been so infringed or violated by an wrong-doer state, the aggrieved state has a right to depend its rights and to avoid the aggressor from violating such right. There are usually following defenses for an aggrieved state in case of its violation of rights by other state; a). To sever economic or diplomatic relations etc with aggressor state, b). To wage war against the aggressor state, etc. 2. Collective Sanctions: - In case of violation of an international right or nonperformance of an international legal duty by state, collective measures may also be taken by other member States of United Organization. International law recognizes following sanctions against a wrong-doer subject of international law: a). Economic Sanctions. b). Financial Sanctions, and c). Military Sanctions. ……………………………………… Q. 9: - Discuss composition as well as jurisdictions of International Court of Justice. Ans: - International Court of Justice (ICJ) is the successor of the Permanent Court of International Justice. The statute of Permanent Court of Justice has been adopted for the International Court of Justice (hereinafter referred as ‘Court’). The establishment of the Court became necessary because to attain the end of International law there must be a judicial organ. So, the Court is the ‘Principle Judicial Organ’ of the International Organization. Composition: - The composition of the Court may be explained as under: 1. Strength: - The Court is consisted of fifteen judges. And not more that one judge shall be elected from one state, for the Court at a given time. 2. Qualifications: - The candidate for the office of judge in the Court shall possess the following qualifications: a). He should be independent. b). He should be a person of high moral character. c). He must be qualified for the appointment of the highest judicial offices in his country.
10 3. Nature of the office: - The nature of the office of judge for the Court is elective. In other words the judges for the Court shall be elected in General Assembly and Security Council. 4. Election: - General Assembly and Security Council shall conduct the election of the judges of the Court independently, but simultaneously. These two organs shall elect the judges from the list of nominees prepared by the national groups in the Permanent Court of Arbitration. 5. Term of office: - The term of the office for the judge of the Court is nine years, however, five of them shall be retired after each three years and so, for such vacancies election shall also be conducted after each five years as to maintain the strength to fifteen. 6. Obligations of Judges: - Any person who has so been elected as a judge of the Court is bound to; a). refrain from all political and administrative functions, b). refrain from being council, agent or advocate in any case, and c). not participate in any case in which he has previously has taken part as agent, counsel or advocate for one of the parties. 7. Quorum of the Court: - The quorum of the Court is fixed at nine judges. 8. President of the Court: - After each period of three years the Court shall elect its president. The president shall preside the cases of the Court. But if in a case any party is his national he shall not be entitled to as act as president. 9. Voice-President of the Court: - Along with the election of the president the shall also elect its voice-president. Voice president shall act as president in a case where president is not present or where president is not entitle for presidency due to one of the parties to the case is being his national. 10. Chamber: - The Court is entitled to form a chamber, composed of not less than three members or which the Court may thinks fit. Different chamber may be declared by the Court to deal with different cases. The Court may constitute a chamber to deal with a particular case. The Court shall itself along with the approval of the parties to the case determine the chamber. 11. Ad hoc Judges: - The statute of the Court reveals that ad hoc judges may be appointed in those cases where there is no national judge of the party to a case. That party can appoint a national judge in that particular case. Jurisdiction: - Broadly speaking there are two kinds of jurisdiction of the Court as follows; I. Contentious Jurisdiction, and II. Advisory Jurisdiction. I. Contentious Jurisdiction: - That jurisdiction of the Court on the basis of which the Court decides any case with the consent of the parties to the case, is called ‘Contentious Jurisdiction.’ It is fundamental principle of international law that without the consent of any party to a case, the same shall not be referred to mediation or
11 arbitration. The same rule is, with some restriction, is applicable to the jurisdiction of the Court. In other words, the Court is not entitled to initiate any proceeding merely because one party files a case, rather the consent of both the parties are necessary that dependent is also required to give consent to the case. Contentious Jurisdiction is of three kinds which may be given as under: i. Voluntary Jurisdiction. ii. Ad hoc Jurisdiction. iii. Compulsory Jurisdiction. i).
Voluntary Jurisdiction: - That jurisdiction which the parties by virtue of an
agreement or treaty confer on Court is called Voluntary Jurisdiction. In other words, when the parties to a treaty or a contract stipulate that if any dispute arise in respect of such treaty or contract the dispute shall be referred to the Court for settlement, this type of jurisdiction of the Court is said to voluntary jurisdiction. So, in voluntary jurisdiction the parties to a dispute give their assent for the jurisdiction of the Court in advance. ii).
Ad hoc Jurisdiction: - That jurisdiction of the Court when the parties, after the
occurrence of the dispute, confers on Court and in which the Court has no right to take up the case, is said to be Ad hoc Jurisdiction. iii). Compulsory Jurisdiction: -Compulsory Jurisdiction means that type of jurisdiction which the Court enjoys without the consent of the parties. In classic international law there is no concept of the Compulsory Jurisdiction of the Court, but recently it has been contended that no the time has reached to confide the Court with compulsory jurisdiction. In case of Compulsory Jurisdiction, the Court is to be empowered to take up a case with out the consent of the parties like municipal Courts. But once again, the application of the Compulsory Jurisdiction at universal level, depends on the approval of the Nation States. The procedure for the Compulsory Jurisdiction of the Court has also been laid down. II. Advisory Jurisdiction: - Advisory Jurisdiction means that the jurisdiction of the Court by which it may only gives an advisory opinion on a question of law. This does not require the consent of the parties to a case but when any International Institute ( General Assembly or Security Council) ask the Court to give an advisory opinion on the question. This opinion is not binding on the parties. So, the case may be referred by an international organization or by any organs within the scope of their activities …………………………………………
12 Q. 10:- What are the amicable means for the settlement of the International Disputes? Ans: - For the settlement of an international dispute there are following amicable means: 1.
Negotiation: - The settlement of the international disputes by the disputant
states themselves by negotiation is said to be settlement of the disputes by negotiation. In other words when there a dispute arises between two or more states then to avoid the chances of war or violence they tends to conduct negotiation for the matters to be settled. The negotiation is to be taken by the political representatives of the disputant countries, without involving any third or non-concerned country. 2.
Good-offices: - The act or arrangements taken by a third party to bring disputant
parties for negotiation or to settle dispute between them by any peaceful means is said to be Good-offices. In case of Good-offices the third merely renders services to bring the disputant parties to peace full means of settlement of disputes. Here the third party does not give any suggestions or take part in the meetings as to be held between the disputant parties. Shortly speaking, in case of good offices when ever the parties to dispute come to peace full of settlement of dispute the duty of the third party finishes. 3.
Mediation: - The act of participating and in the discussions and giving suggestions
to settle a dispute between two parties by a third party is said to Mediation. In other words, mediation is the method to settle a dispute where any third party actively takes part in the sessions of dialogues or negotiations held between disputant party as to resolve the dispute. In case of mediation the mediator should consider the matter of compromise between the parties rather to encourage the strict letter of law. 4.
Inquiry: - The process to ascertain the facts of disputes by a commission of imperial
investigators is said to inquiry. This mean is intended to find out the questions of law and mixed questions of law and fact involved in a dispute. The only function of the commission is to bring in light those facts, which are the root cause for the alleged dispute, and to investigate the question of law and mixed questions of law and fact. 5. Conciliation: - The process of referring a dispute to a commission; for the purpose of finding out facts and to prepare a report containing proposals for the settlement of that dispute, is called conciliation. In case of conciliation the commission is to take two tasks, at first, it shall ascertain the facts of the dispute and secondly, it shall prepare a report which shall reveal that the possible measures to settle the dispute. But the proposals prepared by the commission have no binding force upon the parties. The parties can disagree with the proposals. 6. Arbitration: - The process of referring the dispute; by the mutual consent of the parties to a body of persons or to a tribunal for a legal decision is called as arbitration. The essential ingredient of arbitration is the consent of disputant parties to the dispute. In other words, the referring of the dispute to a Court of Arbitration is dependent on the sweet-well of the parties. International law recognizes a court for arbitration known as Permanent Court of Arbitration. But in fact it is neither permanent nor a court.
13 7.
Judicial Settlement: - The process of settling a dispute; by the International
Tribunal in the light of the provisions of International Law, is said to be Judicial Settlement. For Judicial Settlement there is a judicial organ in international law, known as International Court of Justice. Both the award given by the arbitration tribunal and decision given by the International Court of Justice are comes in the ambit of Judicial Settlement. Like in arbitration, in case of referring the dispute to the International Court of Justice the consent of both the parties are necessary to be given. International Court of Justice shall take its proceeding in the light of the rules of International law, and its procedure is governed by the a statute known as the Statute of International Court of Justice. International Court of Justice plays a very important rule in the settlement of international disputes. 7. Security Council: - A dispute may be settled by a principal organ of the United Nations, known as Security Council. The Council is consisted of fifteen members. Five members are permanent while the remaining ten members are non-permanent members. Wide powers have been entrusted to the Council for the settlement of the disputes, which tend to endanger world peace and security. There is a number of measures to be taken by the Council for the settlement of the disputes. 8. General Assembly: - General Assembly is another principal organ of the United Nations. The Assembly has no specific means to settle the dispute, rather it has general powers to settle the international dispute. It has the power to discuss and to suggest better means for the peaceful settlement of the disputes. Conclusion: - Briefly speaking, International Law intends to overcome the chances of war and violence, and believe to solve the disputes on the merits of political, diplomatic and judicial bases. To avoid the chances of breaking out of wars it provides certain measures and means. Among which above are the amicable means to settle the disputes. But international law also recognizes certain coercive or compulsive means to settle the disputes in extra-ordinary cases where the International peace and security has been endangered. …………………………………………
14 Q. 11: - What is the difference between International Court of Justice and Permanent Court of Arbitration? Ans: - International Court of Justice and Permanent Court of Arbitration have been recognized by the International law to settle the disputes among the Nation States. The difference between the Courts may be given as under: Distinction Between ICJ and Permanent Court of Arbitration.
International Court of Justice. 1. It is a permanent Court
Permanent Court of Arbitration. 1. It is nether a court nor permanent. The title given is totally opposite to its nature and function.
2. It is governed by a statute, enacted for 2. It has no procedural law, rather the its
predecessor
namely,
the
Court procedure of the proceedings is to be
International Justice.
determined by the parties to the case.
3. Its judgment is called the legal 3. Its judgment is called the Award by Decisions
the Court.
4. Its judges are elected by the General 4. Its judges are to be appointed by the Assembly and Security Council
parties to the dispute.
5. Its judges are to be elected by 5. Its judges are to be appointed by the General Assembly and Security Council.
disputant parties themselves.
6.Judges represents the main forms of 6. Its members shall never be the civilization and the world legal system.
representatives of the world community.
7. It shall decide the case in accordance 7. The rules making the award are to be with
treaties,
customs
and
general decided by the parties to the disputes. It
principles of law and other sources.
may apply the general principles of law and equity.
8. It being of a permanent, performs a 7. It being a temporary tribunal does not number of functions as annexed with its perform other functions. nature. 9. It is open to all the states.
9. It is not open to all the states.
10. Its proceedings are open to the 10. Its proceeding are not open to public. public, and its proceeding are published Its awards shall not be published if the and recorded.
parties are not agree thereto.
11. It is a principal organ of United 11. It is not a principal organ of the Nations.
United Nations. …………………………………………
15 Q. No. 12: - Define recognition and write a detailed note on it. Ans: - Main addressors of the international law are the sovereign states. For an entity of being called a state and to enjoy rights, duties and obligations under international law, it is necessary that the existing state have given awareness of its capability of being a state. Such awareness by existing states is called recognition. Recognition: - The term recognition as an international legal term may be defined as under: “The acknowledgement or acceptance by the members of international community, that a new state has acquired international personality, is said to be recognition.” Essentials: - The main essentials of recognition may be given as under: 1. That the community ( of new state ) must be politically organized, 2. That it should have control over a definite territory, 3. That the control should tend towards permanency, 4. That such community must be independent.
In other words, the attributes of statehood are people, territory, Government, and sovereignty. Theories of Recognition: - There are mainly two theories of recognition which may discussed as under: 1. Constitutive Theory. 2. Declarative Theory or
Evidentiary Theory.
1. Constitutive Theory: -Oppenheim, Hegal and Anziloti are the chief exponents of this theory. According to this theory the only certificate to issue international personality to a new born state is the consent of the already existing states. In other words a new entity shall only be called a state when the existing states acknowledges about its statehood. So, the independence of a new entity shall not amount it to be called a state unless it has not recognized by the existing states. Criticism: - The theory has severely been criticized by a number of jurists. Because, at first instance that states do not seem to accept recognition as a legal duty. And at the second instance, it creates many difficulties when a community claims of being a new state and its non-recognition will, according to this theory, imply that it has no rights, duties and obligations under international law. The theory is not correct in any sense so shall be rejected. 2. Declaratory Theory: - The chief exponents of this theory are Hall, Wagner, Fisher and Brierly. According to this theory, the statehood or the authority of new Government is not dependent on the consent of the existing state but is based on some prior or existing fact. According the followers of this theory, the recognition by the existing states is merely a formal acknowledgement of the statehood and not the condition. In fact the
16 statehood is dependent on the some prior conditions necessary for an entity to be called as a state. Criticism: - This theory has also been criticized, because it is not correct that in all cases the existing fact shall imply the statehood, rather some time the statehood may be constitutive. Conclusion: - From the above discussion it may be concluded that both the theories are insufficient to reflect the real explanation of recognition. In fact there shall be intermediate course of approach between the two theories to understand recognition. Briefly, speaking, the definition of recognition depends upon the mode, scope and nature of each case. In other words, recognition may be sometimes constitutive and sometimes declaratory. Modes of Recognition: - There are two modes of recognition, which may be given; 1.
De facto Recognition.
2.
De jure Recognition.
1. De facto Recognition: - The provisionally grant; that is subject to fulfillment of all the attributes of statehood, of recognition to a new state which has acquired sufficient territory and control over the same, but the recognizing states considers it not stable more, is said to be De facto Recognition. 2. De jure Recognition: - The grant of recognition to a new born state by an existing state, when it considers that such new born state has attained all the attributes of statehood with stability and permanency, is called De jure Recognition. Differences Between De facto and De jure Recognition.
De facto and De jure recognition may differentiate on the basis of following points of distinction. De facto Recognition.
De jure Recognition.
1.It is provisional recognition subject to 1. it is absolute recognition granted to a fulfillment all attributes of statehood.
state
which
attributes
of
have
attained
statehood,
all
the
possesses
sufficient control with permanency. 2. It creates few essential rights and 2. It creates absolute rights for the duties for recognized and recognizing parties thereto. states. 3.It does not create full diplomatic 3. It creates full diplomatic intercourse intercourse between the parties.
between the parties.
4. The full diplomatic immunities are not 4. Here full diplomatic relations are granted in this case.
granted to the recognized state.
5. In this case the recognized state 5. In this case, the claim can be made.
17 cannot claim for the property situate in the recognizing state’s territory 6. In such a case the official visits and 6. In such a case limitations are not dealings may be subjected to limitations.
necessary.
Forms of Recognition: - There are following two forms for the declaration of recognition. 1. Express Recognition. 2. Implied Recognition. 1. Express Recognition: - The declaration or notification by an existing state which purports the intention to recognize a newly born state, the recognition is said to be express recognition. In other words, when a formal
and express declaration or
statement is made and published or sent to the opposite party, the recognition is said to be express recognition. 2. Implied Recognition: - When the existing state shows its intention of recognition of a newly born state by some acts, the recognition is said to be implied recognition. In other words, in case of implied recognition no formal statement or declaration is to be made, rather the intention of recognition is to be collected by the acts or transactions of the existing state. So, if such acts purport intention of recognition, it is said to be implied recognition. Conditional Recognition: - The grant of recognition by an existing state to a newly born state stipulated on fulfillment some conditions in addition to the requirements of statehood is said to be conditional recognition. As for as, the recognition is concerned it is itself conditioned with the fulfillment of the essentials of statehood, that is to say, the new state must occupy some territory, has some population, government and sovereignty. If these requirements have been complied with by the new state, then that should be recognized by existing states. But as for as, the recognition is concerned it is usually based on some political considerations. So, in the pursuance of these considerations the existing states sometimes declare recognition but stipulated with certain other conditions for the recognized state to be fulfilled. Criticism: - Many jurists have criticized conditional recognition. According to them recognition is a legal matter and it should not be accompanied with conditions other than required by law. It is due to this reason that when in case of conditional recognition the recognized state if didn’t fulfill the prescribed condition the recognition shall be valid and not extinguished. Rather it will effect the relations between the recognized and recognizing states. Withdrawal of Recognition: - Withdrawal of recognition may be explained as under: 1. Withdrawal of de facto Recognition: - Withdrawal of de facto recognition is possible under international law only on the ground that if the recognized state has been failed to fulfill the pre requisite condition for statehood. In such a case the recognizing state may withdrawn from the recognition by communicating a declaration to the authorities of recognized stated or by a public statement.
18 3.
Withdrawal of de jure Recognition: - There are different views about the
withdrawal of de jure recognition. But according to the strict letters of international law and by the virtue of some conventions in this behalf, it is evident that the withdrawal of de jure recognition is not valid in any case. Though recognition is a political act but de jure but it by nature and status it is a legal oriented. But some jurists think that de jure recognition may be withdrawn, because it is a political act. But in fact it is not so. Only those de jure recognitions may be withdrawn where a state subsequently loses any essential of statehood. In such a case the state withdrawing from recognition shall send his express intention to the concerned authority issue a public statement to that extent. ………………………………………… Q. No. 13: - Write note on the following 1. Recognition of Government. 2. Recognition of Belligerency. 3. Recognition of Insurgency. Ans: -1. Recognition of Government: - As we know that government is an essential of statehood. By government it is meant the administrative and controlling tool of a state. Once a state comes into being, its government may change from time to time. If the change of government takes place in ordinary political life it the existing states are not required to recognize the new government. But sometimes the change of a government takes place as a result of a revolution. In such a case, it becomes necessary to ascertain that whether this new revolutionary government is; i. capable of having sufficient control over the people of the territory or not, and ii. willing to maintain international responsibilities and duties or not. So, if the existing states consider that this new government is capable of fulfilling the above conditions then the new government may be recognized. The recognition of new regime means that the existing states are satisfied that the new government has a capacity to control and is willing to perform international duties and obligation. The recognition may be either de facto or de jure. And the intention may be expressed either by sending a message to the authority of the new government or to declare the same in a public statement. The modern practice is seemed to reject the doctrine of recognition of new government. Now, the some states as USA and U.k. and others have adopted a course to give assent to the above pre conditions for a government merely by extending relation or cessation of relations with such government. Non-recognition of government doesn’t affect the recognition of a state. A state remains recognized the only consequence of the non-recognition of the new revolutionary government is the suspension of the bilateral relations between the existing state and the new government. And as soon as the said government is to be replaced by any other government, if recognized the relations shall be re-continued on the same pattern as were with the previous government of the revolutionary one. The
19 consequences of the recognition of a new government means to keep the relations in the same manner as were with the previous government. 2. Recognition of Belligerency: - Belligerency is the treatment to consider a civil war as a real war between two rival powers by other existing states The recognition by the existing states of the rebels in case of civil war in a belligerent state is said to be recognition of belligerency. In other words when a state goes in a state of belligerency where the rebels have a considerable control over a substantial territory of nation, the rebels may be recognized by the existing state. Such recognition is said to be recognition of belligerency. Conditions: - There are following conditions by the movement of rebels to recognized by other states: a. That the movement shall be of a general character. b. That rebels shall have in possession a substantial part of the national territory. c. That they are giving respect and bind themselves for the warfare laws and other international duties. d.
That they have a proper force. If the above conditions have been fulfilled by rebels then they may recognized by
other existing states, and shall enjoy the international rights. 3.
Recognition of Insurgency: - The recognition by existing states the de facto
authority over a large territory of the rebels is said to be insurgency. In case of insurgency the rebels or the insurgents occupy a large part of the national territory which was formerly governed by the parent government. And if they are capable to control over that occupied part then the existing states may recognize it. Conditions: Prior to recognize the insurgency it is necessary for the recognizing state to satisfy the following conditions;
Firstly, when insurgents occupies a considerable parent state’s territory, Secondly, they have a support from the majority of the citizens of the parent state, Thirdly, they are acting under a proper command and, Fourthly, they have good control over the occupied territory. When the in case of an insurgency the above requirements have been complied with then it is on the discretion of the existing state weather to recognize or not. The recognition of an insurgency is the first step towards the diplomatic relations with their government. But if the insurgency did not succeed in their attempt after recognition by the any existing state, the recognition shall be deemed to have been extinguished.. …………………………………………..
20 Q. No. 14: - Define and explain briefly the term asylum. Ans:- Asylum: - The term asylum may be defined as under: Definition: - “To provide shelter and protection by a host state to a citizen of another state, is called asylum.” Explanation: - The grant of asylum is an old international doctrine. But lacking general rules for its regulation in the premises of international law. Asylum is the extension of shelter and protection to an alien by a sovereign in case where there is a danger to the life of the alien or he is in fear of being prosecution in his state by the his opponent government due to the divergent political, social or religious views as between him and his government. The philosophy behind asylum is the generally accepted international rule that each state is sovereign in its territorial jurisdiction. No other state has a right of jurisdiction on the territory of any state. Asylum is granted in consideration of national security because the rebel of today may be the ruler of future. So, if he is not given the asylum the relations may become adverse if the person, seeking asylum, comes in power in future. Asylum is opposite to another legal doctrine namely, extradition. In which case the person is not granted the asylum but is handed over to the requesting state. As pointed out hereinbefore, that there is no generality of rules on the subject of asylum in international law, even though, there are certain declarations and customs which stress on fact that every person should be given asylum. But as such declarations are not binding in nature so the grant of asylum is dependent totally on the discretion of the granting state. Kinds of Asylum: - There are following two kinds of asylum; Territorial Asylum, and Extra-territorial Asylum 1.
Territorial Asylum: - The grant of asylum by a state on its own territory is said to
territorial asylum. As for as, every state has exclusive right of control and jurisdiction on its territory, so it the discretion of that state weather to extradite the person or to grant asylum to him. Because every state has territorial sovereignty over all persons, on its territory, whether they are its subject or aliens. 2.
Extra-territorial Asylum: - The grant of asylum by a state outside its own
territory is said to be extra-territorial asylum. In other words the grant of asylum on places not forming its physical territory, is said to be extra-territorial asylum. Extra-territorial asylum may be given at any of the following places: i.
Asylum in legation or Diplomatic Asylum: - The grant of asylum by a state in
its embassy premises situated in foreign state, is said to be asylum in legation or diplomatic asylum. It is so because the embassy premises are considered to be excluded from the territorial jurisdiction of the state where it is situated.
21 iii.
Asylum in Consulates: - In consulates also the asylum may be granted to any
person in the same way as in the case of asylum in legation premises. ii.
Asylum in Warships: - Asylum may also be granted in warships, because men
of war and public vessels of a foreign are exempted from the jurisdiction of the state in whose ports or waters may be found. Rather, they are under the jurisdiction of the flag state. iii.
Asylum In Merchant Vessels: - In merchant vessels the asylum cannot be
given except where there is a treaty between the states. The reason that merchant vessels cannot grant asylum is that, they are not excluded from the jurisdiction of the state in whose waters or ports it is found. iv.
Asylum in the Premises of International Institutions: - Asylum may also be
granted in extreme danger to life in the premises of international institutions. ………………………………………….. Q. No. 15: - Write down a short note on extradition. Ans: - Extradition: - The extradition may be defined as under: Definition: - “The delivery of a person; suspected or convicted of a crime, by the state where he has taken refuge or taken asylum, to the state that asserts jurisdiction over him.” Explanation: -Generally each state has full jurisdiction over all its subjects within its territory. But sometimes a state becomes helpless to punish a guilty person. It is so because such guilty person after committing crimes fled away to another country. So if there is no co-operation between nation states in handing over the criminals to the affected states, the end of justice with its real sprite cannot be attained. Due to this fact the nation-states adopt the doctrine of extradition. In other words, the nation states hand over the criminals to the affected states in the administration of justice. BASES: -International law neither recognizes the rules regarding extradition, nor it recognizes any general duty on the nation-states in this connection. Rather the doctrine of extradition is based on some general universal principles. And it arises from the provisions of treaties between the nation-states. If there is no treaty between nationstates for extradition, the country asserts jurisdiction over the criminal is not bound to extradite him to the affected country. In other words extradition is the product of the treaties between the nation states, but it may not be said that without any treaty there would be no extradition. Rather the nation states in pursuance of mutual co-operation sometimes extradite the criminals to the other country although in the absence of any treaty. Restriction: - As for as Extradition is concerned, it mostly depends upon treaties. But before, the conclusions of a treaty the nation-states usually consider the following restrictions established by Courts in this behalf; 1. Existence of a Formal Treaty: - The existence of a formal treaty is also sometimes becomes much necessary. Because, it is generally a matter of bilateral treaty. So, mere
22 agreement or notification is not sufficient to bind the state to extradite a criminal. The existence of a formal treaty is necessary because the state may refuse to extradite the criminals in the absence of any treaty in this behalf. 2. Honour of Treaty: - In case of a treaty for extradition it is important to fulfill all the conditions and terms of the said treaty. 3. Political Criminal: - There is an important principle in international law that the political criminal shall not be
extradited. It is also a restriction on the scope of
extradition. 3. Military Criminals: - Military criminals shall also not be extradited who have not been charged of war crimes. 4. Religious Criminals: - Religious persons shall also not be extradited. 5. The Rule of Speciality: - The extradition of a criminal for a particular crime entitles the requesting state only to prosecute him for that crime and not otherwise, the rule is said to be rule of speciality. It is also a bar on the soul extradition. 6. Double Criminality: - Another bar on the extradition is the principle of double criminality. According to this principle the crime for which the extradition of a person is requested shall be of a nature be incorporated in the domestic laws of both the states. 7.
Prima facie Evidence: - Prima facie evidence is another restriction on the scope
of extradition. It means that there should be sufficient evidence for crimes relating to extradition. 8.
Fulfillment of Formalities: - It is also equally important to fulfill all other
formalities as are necessary for extradition. Conclusion: - So, in the light of the above discussion it may be concluded, that extradition is subjected to many restrictions. And an attempt should be made to overcome such restriction. Because, it is inevitable to punish a person for the crime committed by him in the administration. ………………………………………….. Q.No.15: - What is nationality? How it differs from domicile? Explain both. Ans : - Nationality: - The term nationality may be defined as under: Definition: - “ The legal relation of the sovereign state and the citizen is said to be nationality.” Explanation: - Nationality refers to a relationship between a person and their nation, or in legal terms, a country i.e. a place to whom a person has (or is claimed to "owe") their origin, culture, familiarity, association, affiliation, fidelity, and loyalty. The nationals of a country generally possess the right of abode in the territory of the country whose nationality they hold. Nationality of an individual is the quality of bieng a subject of a certain state and therefore its citizens. Nationality forms a continuiting state of things and not a physical fact which occurs at a prticular moment.
23 Nationality is regulated by municipal laws. But in conflict of municipal and international laws always been happen, creating a lot of problems, due to ununiformity of municipals laws of the nations. So, to overcome these problems some international rule have also been recognizes and others are attempted to be recognized in this behalf. As for example, double nationality, statelessness etc. Modes of Acquisition of Nationality: - Different states have different rules regarding nationality, so there are different rules in each state has for acquisition of nationality. There may be any of the following modes in different states of acquisition of nationality. 1.
By Birth: - The first important and chief mode of acquisition of nationality is by
birth. Every person acquires nationality by birth. The principle of acquisition of nationality by birth is known as jus soli 2.
By Descent: - Nationality may also be acquired by a person on the basis of the
nationality of either parents. The principle is called jus sanguinis. 3.
By Naturalization: - Nationality may also be acquired by naturalization.
Nationality by naturalization means that the acquisition of nationality when a person becomes citizen of a state for a specified course of time 4.
By Resumption: - Acquisition of nationality by resumption means to resume the
previous nationality. Sometimes it may happen that a person loss his nationality due to several reason, so subsequently he may acquire the nationality of the previous state. 5.
By Subjugation: - In case of conquest of a state by another state all the citizens
of the defeated state become the nationals of the conquering state, the mode of acquisition is said to be acquisition of nationality by subjugation. 6.
Be Cession: - When a state or a part of a state is ceded to another state, all the
nationals of the former state acquire the nationality of the state in which their territory has been so merged. 7.
By Option: - Nationality may also be acquired by option, in case where a parent
state has been partitioned into two or more states. In such a case the inhabitants have an option to acquire the nationality of any of the successor states. 8.
By Registration: - Nationality of a state may be acquired by registration in that
state. The laws as to acquisition of nationality by registration are different in different states. Modes of Loss of Nationality: - A person may loss his nationality of a state due to any of the following modes: 1.
By Release: - In some states the citizens have been given a right to release their
nationality. The loss of nationality by release shall only take place when an application is made by the applicant to that effect, and when such application has been accepted. In such a case the concerned person is deemed to be released from the state concerned. 2.
By Deprivation: - Nationality may also be lost by deprivation. In other words
when the authority of a state deprive a person from being its national due some reason, the person concerned is deemed to loss nationality by deprivation. To deprive a person
24 from his nationality any of the following reasons may be invoked by the authority doing so; •
If registration or certificate of naturalization has been obtained by means of fraud, false representation or by concealing any material fact or;
•
If he has been disloyal or disaffected to the integrity of the concerned sovereign state,
•
If he has done by prejudicial act or traded with enemy while the state, in which he has the nationality, is at war with that state,
• 3.
If he has been continuously resided in a foreign country for a length of years.
By Renunciation: - A person may also has a right to renounce his nationality in
a case where he obtains nationalities of more than one state. In such a case he has to make a choice as to retain one of the nationality in which he want to be a national. 4.
By Residence Abroad: - Nationality may be lost by reason of expiration. In other
words when a person resides abroad for a length of time. In such a case by the operation of municipal law of that state, he may loss his nationality. 5.
By Substitution: - Loss of nationality by substitution means the loss of
nationality of one state in place of attaining of nationality of another state. That is to say, when a person acquires a nationality of one state in place of nationality of another state, he losses the nationality of the other state. ………………………………………….. Q. No. 17: - Differentiate between; 1).
Nationality and Domicile.
2).
Domicile and Citizenship.
3).
Nationality and citizenship.
Ans: 1. Distinction Between Nationality and Domicile. As we know that nationality is the relation of the person with the state which provides him protection and all rights annexed thereto. While at the other hand domicile is place of residence of person. In other words due to nationality a person becomes the member of that community while domicile is merely the land where he has residence. Nationality may be acquired due to domicile. For such acquisition of nationality different states have different laws. 3. Distinction Between Domicile and Citizenship. The most unique distinction between domicile and citizenship is that domicile connotes the civil rights of a person while citizen ship is a political status of a person. In other words a person having domicile may not be called citizen of a state, because he only enjoys certain general civil rights in the consequence of his domicile. While a citizen of a state enjoys all civil as will as political rights of that state. The reason is that in case of domicile the person is merely affiliated with the state by tie of his residence in
25 that state, but in case of citizenship the person has a political tie with the state and the state, that is to say, the state’s policy will affect his political life. 4. Distinction Between Nationality and Citizenship. As it obvious that nationality is a relation of a person with the nation of which he has nationality while at the other hand citizenship is the relation of a national with the law of the state. In other words national enjoys certain legal rights while citizen enjoys absolute rights in the state. So, nationality may be the subject of international law as well as, municipal law, while at the other hand citizenship is the exclusive subject of municipal law. ………………………………………….. Q. No.18: - Classify diplomatic agents and give their functions. Also give composition staff of diplomatic mission. Ans: - Diplomatic agents are those persons who abide in foreign state as representatives of their own states. Classification of Diplomatic Agents: -Diplomatic agents may be classified as under: 1. Ambassadors: - The personal representatives of the Head of the state are said to be ambassadors. And in the common wealth countries the representatives are said to be the High Commissioners. As for example, the representative of Pakistan in India is called High Commissioner. The appointment of the ambassador is subjected to the assent of receiving state. In other words the person who is going to be appointed as a diplomatic envoy in a country it is necessary that he must porsona grata, for the receiving state. Other wise he should be refused. So, it is a duty of the sending state to send a report regarding the person to be appointed as diplomatic envoy to the receiving state. Once a person has been accepted as envoy he should be given certain rights and immunities. As for example, he has a right to claim the title of ‘Excellency’. 2. Ministers: - Ministers are other diplomatic officials accredited to the other countries, but ministers are not the personal representatives of the Head of the state. So, they receive less honour as compared to ambassadors. And they are not entitled to claim the title of ‘Excellency’. But if they were given this title it would be a matter of courtesy but not as a matter of their right. in other respects they are almost equal with ambassadors. 3. Charge d’ Affairs: - The officials accredited to foreign state by the foreign office to the foreign office. They are less important as compare to ambassadors and ministers. They do not enjoy honour and title as are available to ambassadors and ministers. They may either be appointed permanently or temporarily. But usually they are appointed temporarily. Functions of Diplomatic Agents: - The functions of diplomatic agents may be derived from international law and municipal law of the concerned countries. The chief functions of the diplomatic agents may be given as under;
26 1. Representation: - The most important function of the diplomatic agents is to represent the state from where they have been sent in the state to whom they have been sent. They are actually the mouthpiece of the Head of the home state because they communicate with the host state the affairs of the home state. 2. Negotiation: - The other most important function which the diplomatic agents have to perform is the negotiation. They negotiate on various aspects on behalf of he sending state with the state to which they are accredited in order to maintain friendly relationship between the two. They are required to communicate the outcome of the negotiations to the sending state from time to time. 3. Protection: - Diplomatic agents protect the interests of the sending state and also of its nationals and their property within the limits permitted by International Law but by the municipal law and regulations of the sending state within which an envoy affords protection. 4. Observation: - Diplomatic agents are required to observe those happenings and events which may take place in the state where they are accredited, especially those which may have effecting the state by which they are sent. After making observations they are required to make periodical reports as well as special reports thereon to the government of the sending state. 5. Promotion of Friendly Relation: - Diplomatic agents are required to promote friendly relations between the sending state and the receiving state. They also have a function to develop the economic, cultural and social relations between the two states. Composition of Staff of Diplomatic Mission: - The composition of the staff of the diplomatic mission may be given as under: There are following three categories of the diplomatic mission’s staff; a). Diplomatic Staff: - The diplomatic staff is consisted on: •
The Head of the Mission,
•
All mission personnels, possessing diplomatic ranks. These ranks holder personnals may be given as under; •
Military, naval and air attaches of their deputies.
•
First, second and third secretaries.
•
Attaches
•
Secretaries in charge of archives.
b). Administrative and Technical Staff: - It is consisted on:
•
Administrative assistants,
•
Typists, and
•
Other staff members performing administrative and technical functions.
And also includes: Heads of offices of clerical services, accountants, translators. c). Services Staff: - Services staff is consisted and includes: -
27
•
Drivers, couriers, doorman, elevator operators, janitors, and
•
Other persons performing domestic service functions in the mission.
Private Servants: - This category of the staff of the diplomatic mission are not the employees of the mission, rather they are the servants in the domestic service or personal service of the members of the mission. Nationality of the Employees: - The members or the employees of the staff of Diplomatic Mission shall be: In case of diplomatic staff: -
•
•
The nationals of the sending state, or
•
The national of the receiving state or a third state only with the assent of the receiving state.
In case of other categories of mission and private servants the employees or the
•
members may be the nationals of: Sending state, Receiving state, or Any third state. ……………………………………… Q. No. 19: - What are the theories as to Diplomatic Immunities and what Immunities are available to Diplomatic agents? Explain. Ans: Theories of Diplomatic Immunities: - There are following three theories regarding immunities of diplomatic agents: 1.
Extra-territorial Theory: - This theory reveals that the diplomatic agents are not
under the jurisdiction of the receiving state, rather they are under the sending state. And their physical presence shall not entitle the receiving country to have jurisdiction on them. This theory is also called as fictional theory, because the extra-territoriality is based merely on a fiction. 2. Representational Theory: - According to this theory immunities are given to the diplomatic agents because they are the representatives of the sovereign, so just as the immunities are given to the prince of a sovereign in the same way the immunities are to be given to the diplomatic agents. 3. Functional Theory: - According to this theory the immunities and the privileges are given to the diplomatic agents because they have given so special duties to be performed and the nature of the task given to them requires them to be free in all respects. Other wise the local administration may by abuse of powers interrupt them and their function may be affected scrupulously. So, to avoid such situation they should be given certain immunities and privileges.
28 Conclusion: - From the above discussion it is evident that the extra-territorial theory is not maintainable at all. But both representational theory and functional theory provide basis for the diplomatic immunities and privileges. Immunities And Privileges of Diplomatic Agents: - According to the provisions of the Veinna Convention following immunities and privileges are available for diplomatic agents: 1. Inviolability of Diplomatic Agents: - The person, freedom and dignity of a diplomatic agent is inviolable. The receiving state shall guarantee his person and shall give him respect. In other words, diplomatic agents cannot be detained or arrested. But the immunity of inviolability of diplomatic agent is not absolute. They may be arrested in special cases. As for example, if a diplomatic agent is found drunken having a gun, so due to avoid violence he may be arrested by the receiving states. 2. Inviolability of Mission’s Staff: - The Veinna Convention also lays down certain immunities and privileges to the administrative and technical staff of the diplomatic mission and for their family members which are also inviolable subject to certain limitations. 3. Inviolability of Premises: - The permanent diplomatic mission has premises in the receiving state where it is to operate its mission. So, the premises and the private residence of the diplomatic agents are also inviolable. 4. Immunity from Local Jurisdiction:The diplomatic agents are immune from local jurisdiction. In other words diplomatic agents cannot be tried by the Courts of the receiving state. Immunity extends to civil, criminal and administrative jurisdictions. 5. Immunity from Taxes and Customs Duties: - The diplomatic agents are also immune from all sorts of taxes subject to certain exceptions. 6. Immunity from Local and Military Obligations: - The diplomatic agents are also immune from certain local and military obligations of the receiving state. As for example, the diplomatic agents are exempted from military contributions, etc. 7. Freedom of Communication: - The diplomatic agents have also been entitled to communicate any information for official purpose to the sending state. Such communications includes the use of couriers and code messages. The diplomatic bag is also inviolable. 9. Freedom of Movement : - The diplomatic agents are free to move and travel in the territory of the receiving state. But this is subject to the laws and regulations, and laws made by the receiving state concerning the prohibited security zone. 10. Right to Worship: - The diplomatic agents have a right to worship any religion they like within the premises. They cannot invite the nationals of the receiving state to take part to the worship. In other words, they have no right to preach their religion in the receiving state. …………………………………………..
29 Q. No. 20: - When a diplomatic missions is to be terminated? Ans: - The termination of mission may discussed as under: Termination of Diplomatic Mission: - There are following two meanings of the termination of the diplomatic mission: 1. Termination of the Head of the Mission. 2. Termination of the Mission as a whole. 1). Termination of the Head of the Mission: - The Head of the Mission may terminated in any of the following ways: i.
Expiration of time: - When the time specified for the termination in the letter of the
credence reaches, the Head of the mission shall be deemed to be terminated. ii.
Recall of Diplomatic Agent: - The mission shall also be deemed to come to an end
when due to unfriendly relationship between receiving and sending states, the receiving state recalls the envoy. The diplomatic agent may also be recalled on his misconduct or misbehavior. iii.
On request of the Receiving State: The head of the diplomatic mission may be
terminated when a request is made by the receiving state in this regard. It also takes place when the relations between the two become unfriendly or because of misconduct on the part of the envoy. iv.
Persona-non-gratia: - Every receiving state has a right to declare an envoy non-
acceptable. The envoy then called as persona-non-gratia. If any head of the mission has been declared as persona-non-gratia he shall be deemed to be terminated. 2. Termination of the Mission as a whole: - A state has a right to terminate the diplomatic mission as a whole, such a situation may arise when war breaks out between the sending state and the receiving state. In cases of armed conflict not amounting to war, diplomatic mission may not be terminated. The diplomatic mission terminates ipso facto when the sending or receiving state is extinguished by voluntary merger into another state or through annexation. Upon the termination of a mission the functions of the persons concerned come to an end. Members of the mission and their families nevertheless continue, even in case of armed conflict, to be entitled to their privileges and immunities until they leave the country or on the expiry of a reasonable time to do so. It is to be noted that armed conflict between the two states does not terminate the mission in all the cases. As for example, in case of armed conflict with India in 1965, diplomatic relations didn’t come to and end. …………………………………………..
