International law notes by asmatullah

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.

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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.

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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

more countries.

1.It deals mainly with the relationship of

states with each other.

2.The rules of Private International law are

the out come of state or state laws

2.The rules of Public International law are

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

the state or states.

4.It comes into force of treaties, customs,

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

executive.

6.It is enforceable by the adverse view of

nation of the word and fear of war or

breakage of diplomatic relations etc.

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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,

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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.

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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.

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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.

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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.

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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

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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

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if any contradiction exist, that should be harmonized, either by courts or the legislature

of the concerned state.

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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.

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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

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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 non-

performance 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.

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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.

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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

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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

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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.

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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.

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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. Permanent Court of Arbitration.

1. It is a permanent Court 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

its predecessor namely, the Court

International Justice.

2. It has no procedural law, rather the

procedure of the proceedings is to be

determined by the parties to the case.

3. Its judgment is called the legal

Decisions

3. Its judgment is called the Award by

the Court.

4. Its judges are elected by the General

Assembly and Security Council

4. Its judges are to be appointed by the

parties to the dispute.

5. Its judges are to be elected by

General Assembly and Security Council.

5. Its judges are to be appointed by the

disputant parties themselves.

6.Judges represents the main forms of

civilization and the world legal system.

6. Its members shall never be the

representatives of the world community.

7. It shall decide the case in accordance

with treaties, customs and general

principles of law and other sources.

7. The rules making the award are to be

decided by the parties to the disputes. It

may apply the general principles of law

and equity.

8. It being of a permanent, performs a

number of functions as annexed with its

nature.

7. It being a temporary tribunal does not

perform other functions.

9. It is open to all the states. 9. It is not open to all the states.

10. Its proceedings are open to the

public, and its proceeding are published

and recorded.

10. Its proceeding are not open to public.

Its awards shall not be published if the

parties are not agree thereto.

11. It is a principal organ of United

Nations.

11. It is not a principal organ of the

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

fulfillment all attributes of statehood.

1. it is absolute recognition granted to a

state which have attained all the

attributes of statehood, possesses

sufficient control with permanency.

2. It creates few essential rights and

duties for recognized and recognizing

states.

2. It creates absolute rights for the

parties thereto.

3.It does not create full diplomatic

intercourse between the parties.

3. It creates full diplomatic intercourse

between the parties.

4. The full diplomatic immunities are not

granted in this case.

4. Here full diplomatic relations are

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

dealings may be subjected to limitations.

6. In such a case limitations are not

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 nation-

states 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,

• If he has been continuously resided in a foreign country for a length of years.

3. 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, ac-

countants, 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.

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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.

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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.

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