Diplomatic agents under international law PDF

Preview

Summary

COMPLETE ANALYSIS OF DIPLOMATIC AGENT UNDER INTERNATIONAL LAW...

Description

“Diplomatic Agents Under international law” A Project Submitted To

ARMY INSTITUTE OF LAW, MOHALI By abhishek (1926) Under the Guidance Of Mrs. Anmolpreet bajwa (public international law) In the Partial Fulfillment of The Requirement For The Award of Degree of BA LLB. Punjabi University, Patiala, Punjab Submission Year: Jan-May 2020

1|Page

DECLERATION It is certified that the project work presented in this report entitled “diplomatic agents under international law” embodies the results of original research work carried out by me. All the ideas and references have been duly acknowledged.

Date: 22-03-20

Name: abhishek

Place: Mohali

Roll no: 1926

2|Page

Acknowledgment A project is a golden opportunity for learning and selfdevelopment. I take this opportunity to express my humble gratitude and personal regards to Mrs. Anmolpreet bajwa, for inspiring me and guiding me during the course of this project work and also for her cooperation and guidance from time to time during the course of this project work on the topic “diplomatic agent under international law”

Mohali

22th march 2019

3|Page

abhishek

1926

objective The main objective of this topic is to inform the readers about “diplomatic agents under international law”. After the completion of studying this unit the students will gain some fundamental knowledge on the following topics:      

Diplomatic agents Laws on diplomatic agent Classification of diplomatic agents Function of diplomatic agents Diplomatic immunities Termination of diplomatic immunities

4|Page

Diplomatic agents under international law 

Diplomatic agents are the persons who reside in foreign countries as representatives of the states by whom they are despatched. The provide an important link between the country who despatch them and the country to which they are accredited.



The practice of sending and receiving diplomatic agents by states is followed since the ancient times one can find the practice in ancient India when doots were sent from one Rajya to another Rajya. 1. The practice of permanently sending diplomatic agent began during the middle of seventeenth century 2. The congress of Vienna of 1815 for the first time codified the customary rules of international law on the ranks of diplomatic representatives. 3. After the establishment of united nations, the task for codifying the law relating to the diplomatic agents was given to international law commission 4. The I.L.C prepared the draft articles and submitted it to general assembly, the assembly convened a conference which was attended by 84 nations at Vienna in 1961 and was thus named Vienna convention on diplomatic relations and it came into force on April 24,1964. 

Classification of diplomatic agents: Diplomatic envoys accredited to a state differ in class, two such classes become generally recognised-namely extraordinary envoys, called ambassadors and ordinary envoys called residents. Congress of Vienna (1815) has classified diplomatic agents under article1 into the above three categories: firstly ambassadors, secondly minister plenipotentiary .and envoys extraordinary, and thirdly, charges d, affaires, and in the year 1818 a fourth class was added minister resident. The Vienna convention under article 14 divides them into three classes:

a) Ambassadors b) Minister plenipotentiary and envoy extraordinary c) Charges d’ affaires

5|Page

a. Ambassador: they are to be the considered as the representatives of the head of their states, the enjoy special honour and claim title of excellency, ambassador convention of 1961 under article 4(1) lays down that ambassador are appointed with consent of receiving state and should be persona-grata i.e. acceptable person Ambassador arriving in a state presents a sealed letter of credence given to them by head of sending state. b. Minister plenipotentiary or envoys extraordinary: The do not enjoy special honour which are enjoyed by ambassador, they are not regarded as personnel representatives of the head of the state, but they do not receive title of excellency neither do the enjoy privileged treatment. c. Charge d’ affaires They are accredited by foreign office to foreign office not by head of state. They therefore on arrival present a letter of credence to the minister of foreign affairs. They do not enjoy honour and title given to another category of representative.



Function of diplomatic agents Function of diplomatic agents are determined by the rules of international law and municipal law of the states. Vienna convention under article 3(1) lays down various function of diplomatic agents:

a. Representation -diplomatic agents represent the state by which they are sent in the state where they are accredited. According to Oppenheim ‘he is the mouth piece of the head of his home state and its foreign minister, for communication to be, made to the state they are accredited’. b. Protection -diplomatic agents protect interest of sending state and its national within the limit permitted by principal law c. Negotiation- diplomatic agents negotiate on various aspect on behalf of sending state to maintain friendly relation with the two state. They are required to communicate the outcome of negotiation to sending state from time to time. d. Observation-Diplomatic agents are required to observe happening and events which may take place in the state where they are accredited and they are also required to make a periodical report to government of sending state. 6|Page

e. Promotion of friendly relations -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 states.

7|Page



Immunities and privilege diplomatic agents: Vienna convention of 1961 lays down the different immunities and privileges granted to diplomatic agents.

a. Inviolability of diplomatic agents: Article 29 lays down that ‘the person of a diplomatic agent shall be inviolable’ he shall not be liable to any form of arrest or detention; the receiving state shall treat him with due respect and shall take all appropriate step to prevent any attack on his freedom or dignity. b. Inviolability of premises: Article 21 of Vienna conventions of 1961 states a permanent diplomatic mission needs premises from which to operate and the receiving state must help the sending state to obtain premises for the mission, in art. 20 it clearly states that there is a right to use the flag and the emblem of the sending state on the premises of the mission, thus clearly identifying them. Art. 22 stipulates the customary rule of international law by stating that ‘the promises of the mission is not inviolable. art. 30 provides that the private residence of a diplomatic agent shall enjoy the same inviolability of diplomatic premises of the mission. c. Immunity from local jurisdiction: the immunity extends to criminal jurisdiction as well as civil jurisdiction. Criminal jurisdiction: article 31 of Vienna convention provides that ‘a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state. Immunity from civil and administrative jurisdiction: immunity from civil jurisdiction and administrative jurisdiction are well recognized principle of international law. d. Immunity from giving witnessarticle 31(2) of the Vienna convention provided that a diplomatic agent is not obliged to give evidence as a witness. e. Immunity from taxes and custom duties: Vienna convention of 1961under art.34 lays down the diplomatic agent shall be exempted from all dues and taxes, personal or real, national ,regional or municipal, moreover art. 36 suggest that diplomatic agents shall be exempted from custom duties, taxes and related charges: article on official use of mission and articles for personnel use of diplomatic agent or member of the household ,including article

8|Page

intended for his establishment. His personnel baggage is also exempt from inspection, unless there are serious grounds for presuming so under article27 para (3) f. Freedom of communication: Article 27 of the Vienna convention provides that the diplomatic agent freedom of communication which includes couriers and code messages g. Freedom of movement and travel: According to article 26 of Vienna convention diplomatic agents are free to travel and move in the receiving state. h. Right to worship: The diplomatic agent has a right to worship any religion they like within the premises. But they cannot preach the religion in the receiving state. i. Immunity from social security provision: Article 33 suggest that a diplomatic agent shall be exempted from social security provision in the receiving state. j. Immunity from local security provision: Article 35 of Vienna convention stipulates that diplomatic agents are exempt from local and military obligation of receiving state.



Termination of diplomatic relation Termination of diplomatic mission may have two meaning i.e. firstly, the termination of the head of the mission personally although the mission continues and secondly termination of mission as a whole. (1) Termination of head of mission: (a) Expiration of the time -if an envoy has been given the letter of credence for a limited period, his mission terminates at the expiration of the period. (b) Recall of diplomatic relation -recalling of diplomatic agent is a measure utilized in order to show policy difference of receiving state or to show strained relations between states (c) On request of receiving state-it is done when a request is made by receiving state mostly done to show strained relation or proven misbehaviour on envoy’s part. (d) Notification upon fulfilment of diplomatic agent’s functions. -the sending state may terminate the head of the mission by notification if the envoy’s function has come to an end mentioned in article 43

9|Page

(e) Persona-non-grata- the head of the mission may be terminated if the envoy has been declared as not acceptable by the receiving state. Receiving state may assign no reason for the same, this is dealt under article 9 and 43 of Vienna convention 1961. 

Basis of immunity and privileges i.

Functionalist theory: According to functional theory diplomatic agent enjoys immunity and privileges because they perform special kind of function which are performed by them in states where they are appointed

ii.

Extra-territorial theoryDiplomatic agent enjoys immunity and privileges because they are deemed to be outside jurisdiction of the state they are appointed.

iii.

Representational theory The diplomatic agent is regarded as agent or personnel representative of the sovereign of the sending state therefore they are given the same level of privileges which are given to the prince or sovereign.



Conclusion Diplomatic agents are the persons who resides in foreign countries as representatives of the states by whom they are despatched. They provide an important between the sending state who despatch them and to the receiving state. The congress of Vienna was the first to codify the rules of international laws on the rank of diplomatic representatives, it deals with classification, function, diplomatic immunity, termination of diplomatic agents and relation between states.

10 | P a g e...