The study Notes on International Law which I prepared for examinations when I was student of LL.B. II in 2006. Hope it may be helpful in understanding the basics of the subject. But after studying it, the students should through the text books available on the subject.....Thanks
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
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
Major Kinds of International Law: - There are following two major kinds of
1. Private International Law, and
2. Public International Law.
1. Private International Law: - The term private International law may be defined as
“ 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
Explanation: - From the above definition it is evident that private international law is to
regulate those cases where a foreign element involves in the matter and the difficulty
arose that which law shall be applicable to the case, in other words when it becomes
difficult for a domestic court that the law of which state shall be applicable to a certain
case because the case contains an element of a foreign state/states law. In such a case
private international law comes to help because it determines that which law shall be
applicable to a certain case.
2. Public International Law: - The term Public International Law may be defined as
“ A body of legal rules which regulates the relation of states inter se as well as
their relations with other non-state entities is said to be Public International law.”
Explanation: - From the above definition it may be concluded that Public International
law is a set of legal rules which not only regulates the relations between the Nation
States but also regulates their relations with other non-state entities. In other words it is
a body of rules which regulates the relationship of the international actors with each
other. These international actors may be given as under:
States, individuals, NGO’s, IGO’s, Multi-National Corporations and Movements.
Q. 2: - Differentiate between Private International law and Public International
Ans: - There is a sheer difference between Private International Law and Public
International law. Some points of distinction may be given as under:
Distinction Between Private International law and Public International Law
Private International law Public International law
1.It deals with the individuals of one, two or
1.It deals mainly with the relationship of
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
5.It is more civil in nature. 5.It is both civil and criminal in nature.
6.It is enforceable by the concerned state
6.It is enforceable by the adverse view of
nation of the word and fear of war or
breakage of diplomatic relations etc.
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
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
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
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,
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
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.
6. Other Sources: - Beside the above sources there are also some other sources
which court can resort for the decision of a case. As for example “Equity” and the
resolution by the UN organization. No where in the statute these sources have been
declared for the Court to derive law but by practice the common and universal principles
of equity have been observed by the courts while deciding cases. And also the UN
organization when passes a resolution on specific subject the Court feels its moral duty
to decide the case in the light of such resolution if there is no express provisions for
deciding a case.
Q. 5: - What are the subjects of international law? Discuss.
Ans: - By subjects of international law it is meant that those entities which possess
international personality. In other words subjects of international law are those entities
that have rights duties and obligations under international law and which have capacity
to possess such right, duties and obligations by bringing international claims. In past the
matter was not much debatable because according to the contemporary circumstances
and scope of international law only the states were qualified for international personality,
but in near past along with the increasing scope of international law many other entities
have been given international personality. Now, the question arises; whether they may
be treated as subjects of international law or not? And also if they were given the
international personality then what shall be the criteria for ascertaining the qualification
of their being the subjects of international law.
So, there are different theories as regard to the above debate. The most prominent
theories may be discussed as under:
1. Realist Theory: - According to the followers of this theory the only subject of the
international law are the Nation States. They rely that Nation States are the only entities
for whose conduct the international law came into existence. The Nation States,
irrespective to the individuals composing them, are distinct and separate entity capable
to have rights, duties and obligations and can possess the capacity to maintain their
right under international law. So, the Nation States are the ultimate subjects of
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
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
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
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
into by different sovereign states, international customs and general principals of law
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
if any contradiction exist, that should be harmonized, either by courts or the legislature
of the concerned state.
Q. 7: - What are the main functions of International law?
Ans: - By functions of International law it is meant that to carry on the objects and aims
of international law. As we know that the performance of the functions of international
law mainly depends upon the will of the sovereign states. Because there is no political
superior authority to administer the law. These are the states, the main subjects of
international law, which undertake to perform those intended functions. So, as the will of
the states are conditioned with certain political considerations, due to which the process
of attaining its end is very slow. Beside this international law plays an important role in
the international justice.
Some important functions of international law may be given as under:
Functions of International law: - Important functions which international law performs
in the world justice and politics may be given as under:
1. Maintenance of peace and security,
2. Development of friendly relationship among states and other International actors,
3. Achievement of International co-corporation to solve problems.
4. To solve economic, cultural and humanitarian problems
5. To guarantee political and sovereign integrity of states
Beside the above functions there are a number of other functions which international
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
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.
Q. 9: - Discuss composition as well as jurisdictions of International Court of
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
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
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
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
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
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
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
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
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
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
Q. 10:- What are the amicable means for the settlement of the International
Ans: - For the settlement of an international dispute there are following amicable
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.
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
International Court of Justice plays a very important rule in the settlement of
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.
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
2. It is governed by a statute, enacted for
its predecessor namely, the Court
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
3. Its judgment is called the Award by
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
8. It being of a permanent, performs a
number of functions as annexed with its
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
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
11. It is not a principal organ of the
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
“The acknowledgement or acceptance by the members of international
community, that a new state has acquired international personality, is said to be
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
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
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
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
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
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
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
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
2. It creates absolute rights for the
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.
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
Forms of Recognition: - There are following two forms for the declaration of
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
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
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.
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
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
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..
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
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
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.
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
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
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
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
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
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
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
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.
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
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
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
from his nationality any of the following reasons may be invoked by the authority doing
• 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
• 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.
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
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
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
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;
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
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.
• 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-
c). Services Staff: - Services staff is consisted and includes: -
• 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:
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.
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
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.
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
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
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
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
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
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.