Contents
State Jurisdiction ..................................................................................................................................... 2
Extra-territorial jurisdiction .................................................................................................................... 2
Immunities from Territorial jurisdiction ................................................................................................. 2
Classification of Diplomatic agents ......................................................................................................... 2
Functions of Diplomatic Agents .............................................................................................................. 2
Diplomatic immunities and privileges..................................................................................................... 3
Basis of Diplomatic immunity and privileges .......................................................................................... 3
Privileges and immunities of a Diplomat ................................................................................................ 3
Rule of Reciprocity: (Absolute immunity) ............................................................................................... 6
Doctrine of Restricted Sovereign Immunity............................................................................................ 6
Double Nationality (Dual Nationality) ..................................................................................................... 7
Nationality of Married Woman ............................................................................................................... 7
Law of Treaties ........................................................................................................................................ 7
Statelessness: .......................................................................................................................................... 8
Extradition:.............................................................................................................................................. 8
Persona non grata: an unwelcome person. ............................................................................................ 8
Asylum..................................................................................................................................................... 8
Nationality............................................................................................................................................... 9
Theories of State Responsibility.............................................................................................................. 9
Doctrine of Culpa .................................................................................................................................... 9
State Jurisdiction
Each state is sovereign within its own territory. It can make laws civil or criminal for its people.
CASE: Chung Chi Cheung vs The King
Right of Passage – Land locked states have right of passage from the neighbouring coastal states. E.g.
Nepal, Bhutan.
Extra-territorial jurisdiction
Where a state extends its jurisdiction beyond its territorial jurisdiction, it is called “Extra-territorial
jurisdiction”.
E.g. 1. Embassies 2. a ship bearing the flag of state wishing to exercise jurisdiction in the high seas.
Immunities from Territorial jurisdiction
1. Diplomatic agents
2. Foreign embassies
3. Foreign sovereigns
4. Public property of foreign sovereign states
5. International organizations
6. Extradition treaties
7. Foreign troops
8. Warships and their crew.
Classification of Diplomatic agents
1. Ambassadors accredited to head of State.
2. Envoys, ministers accredited to the head of State.
3. Charges d’ Affairs accredited to Ministers of Foreign Affairs.
Functions of Diplomatic Agents
1. Representation: Diplomatic agents represent the policies and beliefs of State by which they
are dispatched to the state where they are accredited. The function of representation is primarily
entrusted to the head of the mission. Oppenheim, in his book, says that “diplomats are the
mouthpiece of the head of his own State and the Foreign Minister for communication to be
made to State where they are dispatched.
2. Protection: Diplomatic agents protect the rights and interests of sending State and also of
nationals, within the limits allowed by the municipal law of respective State. The limit of
diplomats is not prescribed by the International Law but by the municipal law of the State.
3. Negotiation: Negotiation is the most important function which is performed by the diplomatic
agents. Generally, the head of the diplomatic mission negotiates on various aspects of on behalf
of the sending State with the State to which they are accredited in order to maintain a friendly
relationship. Diplomatic agents are required to communicate the outcome of the negotiation to
sending State from time to time,
4. Observation: Diplomatic agents are required to observe those events and happenings which
take place or which may take place in the State where they are accredited, especially those
which may affect the interests of the State by which they are sent. After making observations
of the events, they are required to make periodical reports to the government of sending State.
5. Promotion of Friendly Relations: Diplomats are required to promote friendly relations
between the sending State and the receiving State. They also have the function to develop the
social, cultural and economic relations between the two States.
6. Consular Functions: Vienna Convention lays down that diplomatic agents can also perform
consular functions which may be allotted to them from time to time such as death, birth and
marriage registrations of the subjects of home State, issue of passports etc.
Diplomatic immunities and privileges
International Law confers diplomatic immunity on diplomats from the exercise of jurisdiction by
receiving States. The principles governing diplomatic immunities and privileges are among the most
ancient and universally recognised principles of International Law.
Basis of Diplomatic immunity and privileges
Different international jurists have divergent views as to the basis for giving immunities to diplomatic
agents. Their views led to the emergence of three important theories which are as follows:
• Extra-territorial Theory: This theory is also known as the fictional theory. According to this
theory, diplomatic agents are considered not be within the territorial jurisdiction of the State to
which they are accredited, but to all times within that of the sending State. Extra- territorially
of diplomatic agents means that though diplomats physically present upon the soil of the
country to which they are accredited but they remain for all purposes on the soil to which they
represent.
• Representational Theory: According to this theory, diplomatic agents are regarded as
personal representative of the sovereign of the sending State. Therefore, they are given the same
degree of privileges and rights which are given to the head of sending State.
• Functional Theory: According to this theory, diplomatic agents are given immunities because
of the nature of their functions. The duties which the diplomats perform are far from easy. In
other words, their actions of duties are of typical or some special nature. They are allowed
immunities from the legal and other limitations of the State to which they are accredited to
effectively perform the tasks they are allotted.
Privileges and immunities of a Diplomat
Vienna Convention on Diplomatic Relations of 1961 lays down the different rights and privileges which
are granted to diplomatic agents. They are as follows:
Inviolability of Diplomatic Agents:
Diplomatic agents are inviolable is a principle which is recognized in International Law much before
the adoption of the Convention of 1961. Article 29 of the Vienna Convention lays down that “the person
of a diplomatic agent shall be inviolable”. He shall not be liable to any form of arrest or detention, and
the receiving State shall treat him with all due respect and should take all appropriate to prevent an
attack on his personal freedom and dignity.
• The Government of receiving State by virtue of Article 29 is under a duty to conduct to abstain
from any form of conduct which is injurious to the diplomatic agents and also under a duty to
prevent such injurious conduct if attempted by another.
• This does not mean that the immunity given to the diplomats is absolute. The receiving State
has the power to arrest or detain the diplomatic agent in exceptional cases For instance, a
drunken diplomat with a loaded gun in a public place can be arrested or if a diplomatic agent
commits an act of violence which disturb the order and peace of receiving State in such a
manner that it becomes necessary to put him under restraint for the purpose of preventing
similar acts.
Inviolability of Staff of Mission
• In addition to the head of mission, immunities are also given to the staff of the mission, which
is defined in article 1 of the Vienna Convention. Para 2 of Article 37 of Vienna Convention
lays down that members of the administrative and technical staff shall enjoy the immunities
and privileges as mentioned from Article 29 to Article 35 if they are not nationals or are not
permanent residents of receiving State.
• Thus, administrative and technical staff only enjoys personal inviolability (Article 29),
inviolability of residence (Article 30(1)), immunity from criminal jurisdiction (Article 31(1)),
exemption from certain taxes and duties (Article 34) and immunity from civil and
administrative jurisdiction exists when they are performing service duties [Article 31(1)].
• Para 3 of Article 37 of the Vienna Convention provides immunities to the service staff if they
are not the nationals or permanent resident of receiving State. It provides immunity to the acts
performed in course of their duties, exemption from taxes and duties on emoluments received
and exemptions on social security provisions.
Inviolability of family members
• Vienna Convention of Diplomatic Relations in its Article 37 Para 1 states that “immunities
and privileges to the family members of diplomatic the diplomatic agents having diplomatic
ranks may be given, if firstly they are not nationals or permanent resident of receiving State
and secondly, so long as they form the part of household, i.e. they live under one roof”.
• So if the son of a diplomat is studying in any University of receiving State and just come on
weekends to meet his parents, then he will not be provided with any immunity as he is not
forming the part of the household.
Inviolability of premise:
• Article 21 of the Vienna Convention lays down that, “a permanent diplomatic mission needs
premises to operate and receiving State must help the sending State to obtain the premises form
mission”. The sending State has the right to use its flag and emblem on the premises (Article
20).
• Article 22 of the Vienna Convention of Diplomatic Relations stipulates the customary rule of
International Law by stating that “the premises of the mission shall be inviolable”.
• Further Article 30 also provides that “private residence of a diplomatic agent shall also enjoy
inviolability”. The agents, police or any officer of the receiving State are not allowed to enter
the premises without the consent of the head of mission. However, the inviolability of premises
is also not absolute it can be compromised in certain exceptions.
• Article 41 of the Convention itself lays down that “premises of the mission should not be used
in any manner as incompatible with functions of mission or by rules of general International
Law”. So, if the inviolability of premises is abused then the receiving State should not bear it
passively and can take all the necessary steps to stop the actions of agents.
Inviolability from being a witness:
Diplomatic agents are completely immune from being a witness in any civil or criminal or
administrative court of State to which they are accredited. He is also immune from giving evidence
before the Commissioner. However, they may appear before any court by waiving of their immunity.
Article 31(2) lays down that “diplomat agent is not obliged to give evidence as a witness”.
Immunity from taxes and customs duties:
Article 34 of Vienna Convention lays down that, “diplomatic agents shall be exempted from all
dues and taxes, personal or real, national, municipal or regional”. Initially, before the convention,
this right was given to the agents due to Courtesy but Convention has incorporated it with more precise
definition.
Immunity from inspection of Personal Baggage:
The bag used by the diplomatic agents for sending articles, letters or documents to the sending states or
any other missions of its State to abroad be known as a diplomatic bag. Para 3 of Article 27 of the
Vienna Convention lays down that “diplomatic bag should not be opened or detained’. But according
to Article 36 Para 2, this right is not absolute. It lays down that, “general practice of exempting the
diplomats’ personal baggage from a custom inspection is qualified by the provision that inspection can
be conducted in presence of a diplomatic agent or his agent if there are serious grounds for suspecting
that the article is not for official use”.
Freedom of Communication:
Diplomatic agents are free to communicate any information for official purposes to the State by which
they are accredited. Article 27 of the Vienna Convention lays down that “the freedom of
communication also involves the use of code messages and couriers”.
Freedom of movement and travel:
Article 26 of Vienna Convention empowers diplomatic agents to move and travel in the territory of
receiving State but subject to laws and regulations of International Law and rules made by receiving
State concerning security zone.
Right to worship:
Under Article 3(1) of Vienna Convention diplomatic agents have the right to worship any religion they
like within the mission premises or residence. But they cannot invite any nationals of the receiving State
to take part in the worship and have no right to preach their religion in receiving State.
Immunity from the Local Jurisdiction:
Diplomatic agents enjoy immunity from the jurisdiction of local courts. The immunity extends both to
criminal as well as civil jurisdiction.
Article 31, paragraph 1 of the Vienna Convention provides that a diplomatic agent shall enjoy immunity
from the criminal jurisdiction of the receiving State. Thus, receiving State has no right to prosecute and
punish diplomatic agents. Immunity of diplomatic agents from civil and administrative jurisdiction also
a well- recognized principle of International Law.
Rule of Reciprocity: (Absolute immunity)
Reciprocity in international law can be best described as a creator of a balance between the interests
and actions of the state.
• The Reciprocity principle plays a prominent role in a decentralized system of public
international law where there is no overruling legal authority to establish, adjudicate, or to
enforce all International rules.
• The principle or rule of reciprocity in international relations suggests creating an environment
where the states help and support each other under a reciprocal relationship for a particular,
short, or long-term advantage through the means of balance in their rights, interest, and duties.
CASE: Mighell V. Sultan of Johore Case
Facts:
• The sovereign status of a Sultan was an Issue in one of a court case in England.
• When Miss Mighell sued the Sultan of Johor who was traveling incognito in the State of the
United Kingdom for breach of promise of marriage.
• The Court granted the Sultan an “independent sovereign” immunity from its jurisdiction.
• The decision was on the basis of a letter from the Secretary of State for the Colonies stating
that “generally speaking, [the Sultan] exercises the usual attributes of a sovereign ruler without
any sort of question.” This further demonstrates the British recognition of the Sultanate of Johor
as an independent State.
Issue: Whether sultan Johor will get diplomatic immunity or not?
Decision: Court held that the Sultan of Johor will get the diplomatic immunity as an “independent
sovereign”.
Principle: Foreign sovereign shall be treated as an independent sovereign and therefore should have
immunity from the local jurisdiction.
Doctrine of Restricted Sovereign Immunity
• The increasing involvement of states in World Trade activities led to the development of a more
restrictive approach to State Immunity, where a distinction is drawn between acts of a foreign
sovereign nature (acta jure imperii) and acts of a commercial nature (acta Jure gestionis).
• Under this restrictive approach, Immunity is only available in respect of acts resulting from the
exercise of a Sovereign power. As such States may not claim immunity in respect of
commercial activities or over commercial assets.
Double Nationality (Dual Nationality)
It means having two or more nationalities of more than two or more states at a time. Article 15 (1) of
UDHR provides that every person has right to nationality. Article 15 (2) provides that no one shall be
arbitrarily deprived of his nationality. This problem mostly occurs in the case of married women.
CASE: CANEVARO CASE (1912)
Citizen of one country went to other, then got green card there, contested election and won. Question
was whether he is citizen of first or second country. His actions prove that he is citizen of second
country.
Nationality of Married Woman
E.g. Sonia Gandhi Case: She married Indian. But Sonia Gandhi did not relinquish her Italy nationality.
She later applied for Indian citizenship via Naturalization. So, she had dual nationality. But this type of
problem is resolved by Hague Conference, 1930 ( articles 8 to 11), which provides that if a woman
marries another national she automatically acquires the nationality of her husband. However if she
wants she can retain her birth nationality.
Law of Treaties
Vienna Convention on Law of Treaties
Article 14 – Ratification of treaties
Article 34 – Treaty does not create either obligation or rights for third parties (state) without its consent
A treaty is only applicable to the parties to contract & not to any third party – Pacta treaties nec nocent
Article 49 – Termination of treaty due to fraud
Article 50 – Termination of treaty due to corruption
Article 51 – Termination of treaty due to coercion. Treaty entered by coercion is not valid.
CASE: Fisheries Jurisdiction Case (1973)
Formation of Treaty
1. Accredition or authorization
2. Negotiation & Adoption
3. Signatures
4. Ratification: Article 14 Vienna Convention
5. Accession: Addition of something
6. Pacta Sunt Servanda
7. Registration & Publication
Rebus Sic Stantibus: so long as things stand as they are.
If the contract is impossible to perform or if the circumstances have been changes, then contract is
cancelled. E.g. Russia-India Deal (1991)
Jus Cogens: A treaty is void, if at the time of its conclusion it conflicts with peremptory norms of general
international law.
E.g. treaty relating to trade in slaves or genocide. It is void ab initio.
Statelessness:
• Being without registered or recognised nationality or citizenship.
• Article 15 of Universal Declaration of Human Rights 1948 states that every person is entitled
to have nationality and nationality of any person cannot be taken away or snatched arbitrarily.
Extradition:
• to give up or to surrender.
• In international law, extradition means a delivery of criminal or fugitive or fugitive from justice
by one country to other on sufficient grounds shown
Essential conditions for extradition:
1. Treaty: A state cannot claim extradition as of a right. There must be a treaty between two
countries.
2. Political offenders: it is worldwide accepted principle that extradition between two countries
is in cases of criminal only and not for political offenders.
CASE: Re Castoni Case (1891) – Pg. 139
Re Meunter Case (1894) – Pg. 139
3. Attentat Clause: the first attempt to limit the political offense exception to extradition.
CASE: Celestin Jacquin Case – Pg. 140
4. Double criminality: when an offence is declared as ‘criminal offence’ by both countries it is
called double criminality.
5. Extradition not allowed in military criminals.
6. Extradition not allowed in religious criminals.
Persona non grata: an unwelcome person.
Article 9 – Vienna Convention on diplomatic relations, a state at any time without having to give an
explanation declare any member off diplomatic state as persona non grata.
Asylum
• It means sanctuary or a place of refuge a place of retreat and security.
• Article 14 of UDHR, 1948 says everyone has the right to seek and enjoy in other countries
asylum from prosecution.
Territorial Asylum (pg 130)
• State when grants asylum to a refugee in her own territory it is called territorial asylum.
• It refers traditionally to right of states to grant asylum to aliens in their territory in order to
protect these individuals from other states where they committed an offence and which
therefore wants to prosecute them.
• E.g. Bangladesh refugees flow into India, Dalai Lama in India
Extraterritorial (or diplomatic asylum)
• A state which grants asylum to refugee in its embassy i.e. outside its territory it is called
diplomatic asylum.
• A State which grants asylum in its public vessels (ships in high seas, vehicles on road,
aeroplanes) is called extraterritorial asylum.
• CASE: Julian Assange (Wikileaks issue)
• Asylum ends where extradition starts.
Nationality
Nationality: link between States and subject (individuals). Loyalty and affection towards the nation.
Acquisition of nationality is difficult than acquisition of domicile.
Modes of acquiring nationality
1. By birth
2. By naturalisation: admit an alien to citizenship
3. By Resumption: Indian going to America getting USA citizenship and coming to India and
again getting Indian citizenship by naturalisation it is nationality by resumption.
4. Buy subjugation: to conquer an area
5. By Cession: act of giving up the land e.g. Sikkim
6. By migration
Loss of nationality
1. By release: same example of resumption only he doesn’t come back to India while applying
for USA citizenship a person has to submit application to Indian government and Indian
government will release him of Indian nationality.
2. By deprivation: take away
3. By renunciation: giving up
4. By choice or substitution: Hong Kong was taken on lease by Britain from China after lease
got over Hong Kong merged with China and people were given choice of which country they
want nationality. (Britain or China)
5. By longstanding residence: person leave their birthplace and reside in abroad for several years
lose nationality due to long stay at other place.
Theories of State Responsibility
There are two theories attributed to State responsibility.
Risk or Objective theory: The ‘risk’ theory says that a State is strictly liable if a State official or organ
commits a wrongful act.
Fault or Subjective Theory: Whereas the ‘fault’ theory takes the element of ‘intention’ into account
and says that a State shall be responsible only if the act is committed intentionally or negligently.
The Eclectic Legal Theory: It is the approach to legal theorizing where what seems best among the
various competing theories and their variants are selected to answer persistent and pressing problems
in legal theory (in a positive sense) discriminatingly but holistically in juxtaposition.
Doctrine of Culpa
• This doctrine requires that parties remain responsible for their actions during the negotiation
and pre-contractual phase of a contract and must act in good faith.
• A person must not induce or provide misleading information to another in the pre-contractual
phase leading the other party to enter into an agreement to his or her detriment.
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