ARTICLE Understanding the Distinguishing Features of Post
Total Page:16
File Type:pdf, Size:1020Kb
Load more
Recommended publications
-
The Immunity of Official Visitors
The Immunity of Official Visitors Michael Wood* A. von Bogdandy and R. Wolfrum, (eds.), Max Planck Yearbook of United Nations Law, Volume 16, 2012, p. 35-98. © 2012 Koninklijke Brill N.V. * I thank Penelope Nevill and Eran Sthoeger for their valuable assis- tance. 36 Max Planck UNYB 16 (2012) I. Introduction II. Immunity ratione personae of serving Heads of State and other High-Ranking Officials; and “Official Act” Immunity 1. Immunity ratione personae of serving Heads of State, Heads of Government, Ministers for Foreign Affairs and other High- Ranking Office Holders 2. “Official Act” Immunity III. The Convention on Special Missions IV. Evidence of the Customary International Law on Official Visitors 1. The Special Missions Convention and Customary International Law 2. State Practice 3. ICJ Case-Law 4. Writings V. The Customary International Law on the Immunity of Official Visitors 1. Minimum Requirements for an Official Visit Attracting Immu- nity a. The Need for the Visitor to Represent the Sending State b. The Need for the Receiving State to Consent to the Visit as one Attracting Immunity c. Whether Consent is given is a Matter of Policy d. The Status of Persons on High-Level Official Visits VI. Conclusion Annex State Practice Wood, The Immunity of Official Visitors 37 Abstract This article reviews the customary international law concerning official visitors, in particular the inviolability of the person and immunity from criminal jurisdiction that they enjoy. It looks at State practice, including the case-law. It also considers the work of the ILC and the literature. Three separate heads of immunity may come into play in the case of any particular official visit: the immunity ratione personae of holders of high-ranking office; “official act” immunity; and the immunity of offi- cial visitors, including those on special missions. -
A Comparative Study of the Privileges and Immunities of United
Washington and Lee Law Review Volume 33 | Issue 1 Article 4 Winter 1-1-1976 A Comparative Study Of The rP ivileges And Immunities Of United Nations Member Representatives And Officials With The rT aditional Privileges And Immunities Of Diplomatic Agents Yu-Long Ling Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the International Law Commons Recommended Citation Yu-Long Ling, A Comparative Study Of The Privileges And Immunities Of United Nations Member Representatives And Officials With The Traditional Privileges And Immunities Of Diplomatic Agents, 33 Wash. & Lee L. Rev. 91 (1976), https://scholarlycommons.law.wlu.edu/wlulr/vol33/iss1/4 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. A COMPARATIVE STUDY OF THE PRIVILEGES AND IMMUNITIES OF UNITED NATIONS MEMBER REPRESENTATIVES AND OFFICIALS WITH THE TRADITIONAL PRIVILEGES AND IMMUNITIES OF DIPLOMATIC AGENTS Yu-LONG LING* I. INTRODUCTION Modern states possess wide jurisdictional authority over their na- tional domain.' This authority normally extends to persons, both nationals and aliens, residing within a country and to property lo- cated therein. That a nation rules over all persons and things within its territory constitutes one of the basic principles of international law.2 For a variety of reasons, however, states have accepted limita- tions upon their jurisdiction. -
Legal Regime of Persona Non Grata and the Namru-2 Case
Journal of Law, Policy and Globalization www.iiste.org ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online) Vol.32, 2014 Legal Regime of Persona Non Grata and the Namru-2 Case Marcel Hendrapati* Law Faculty, Hasanuddin University, Jalan Perintis Kemerdekaan, Kampus Unhas Tamalanrea KM.10, Makassar-90245, Republic of Indonesia * E-mail of the corresponding author: [email protected] Abstract Just like the diplomatic immunity principle, the principle of persona non grata aims to ensure justice for both the state seeking to evict a diplomat (receiving state) and the state whose diplomat is being evicted (sending state). This is because both principles can guarantee the dignity and equality of sovereign states when resolving issues in international relation. Not every statement of persona non grata has to culminate in expulsion because a statement may be issued by the receiving state both after the diplomatic agent has started performing his functions and even before he arrives at the receiving state. If such a statement is followed by the expulsion of the diplomat, it should be based on article 41 of the Vienna Convention, 1961 (infringement on laws of receiving state and/or espionage actions). Also, expulsion may occur due to war and severance of diplomatic relation between two states. Indonesia has had to deal with issues of persona non grata on several occasions both as receiving and sending state. This paper analyses several cases of declaration of persona non grata involving several countries, especially Indonesia in order to give a better understanding of how the declaration of persona non grata plays out between states, and the significance of the Vienna Convention of 1961 on diplomatic relations. -
The Function of State and Diplomatic Privileges and Immunities in International Cooperation in Criminal Matters: the Position in Switzerland
Fordham International Law Journal Volume 23, Issue 5 1999 Article 3 The Function of State and Diplomatic Privileges and Immunities in International Cooperation in Criminal Matters: The Position in Switzerland Paul Gully-Hart∗ ∗ Copyright c 1999 by the authors. Fordham International Law Journal is produced by The Berke- ley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj The Function of State and Diplomatic Privileges and Immunities in International Cooperation in Criminal Matters: The Position in Switzerland Paul Gully-Hart Abstract In so far as diplomats are concerned, their immunity from legal process arises under customary international law and treaty law (i.e., the Vienna Convention on Diplomatic Relations,’ the Vienna Convention on Consular Relations,2 and the New York Convention on Special Missions’ (or “New York Convention”)). All three conventions state in their preliminaries that diplomatic immunity and privilege arise from international custom and that their function is not to benefit individuals, but to ensure the smooth and efficient performance of their duties in the interest of comity and of friendly relations between sovereign nations. ESSAYS THE FUNCTION OF STATE AND DIPLOMATIC PRIVILEGES AND IMMUNITIES IN INTERNATIONAL COOPERATION IN CRIMINAL MATTERS: THE POSITION IN SWITZERLAND Paul Gully-Hart* Privileges and immunities apply to different categories of persons (i.e., persons performing official acts, diplomats, and heads of state). In addition, states, government agencies, and corporate entities acting on behalf of, or to the benefit of, na- tions also enjoy immunity within certain limits. Persons performing official acts by reason of their official capacity or functions may be immune from the judicial and ad- ministrative processes of their own state, the state where they are performing such recognized official acts, or in any state where their official acts have effect. -
(I) of the Vienna Convention on Diplomatic Relations
SEPARATE OPINION OF PRESIDENT YUSUF Disagree with the contradictory conclusion of the Court on Article 1 (i) of the Vienna Convention on Diplomatic Relations — Provision characterized as “unhelpful” in reasoning and set aside — Later, used in dispositif to deny status of “premises of the mission” to building at 42 avenue Foch — Court should have ascertained as threshold matter whether building at 42 avenue Foch was “used” as “premises of the mission” within meaning of Article 1 (i) — Criterion of effective use is the key — Jurisprudence of domestic courts and international tribunals confirm that conclusion — Relevance of definitional provisions to applicability and operation of other provisions should have been analysed — It is illogical to dismiss relevance of “use” criterion in Article 1 (i) but deny status of “premises of the mission” to building on the basis of the same article. Requirement of “prior approval” or “power to object” has no basis in the Convention — Object and purpose of the Convention insufficient to establish these requirements — Vienna Convention is a self-contained and reciprocal régime that specifies the means at disposal of receiving State to counter possible abuses — Requirement of “prior approval” or “power to object” will generate unnecessary misunderstandings and tensions in diplomatic relations — Court should have analysed Articles 41 and 21 of the Vienna Convention as relevant context to Article 1 (i) — Practice of few States on a different plane from concordant practice embracing all parties to treaty — Convention does not make compliance with domestic laws and regulations of receiving State condition to the application of Article 1 (i) — France did not have general, well-known and transparent practice at the relevant time — Requirement of “prior approval” or “power to object” is unqualified and unclear — Criteria for exercise of this power have no basis in the Convention. -
Constitutional Solutions to the Problem of Diplomatic Crime and Immunity William G
Hofstra Law Review Volume 36 | Issue 2 Article 19 2007 Constitutional Solutions to the Problem of Diplomatic Crime and Immunity William G. Morris Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/hlr Part of the Law Commons Recommended Citation Morris, William G. (2007) "Constitutional Solutions to the Problem of Diplomatic Crime and Immunity," Hofstra Law Review: Vol. 36: Iss. 2, Article 19. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol36/iss2/19 This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Review by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Morris: Constitutional Solutions to the Problem of Diplomatic Crime and I NOTE CONSTITUTIONAL SOLUTIONS TO THE PROBLEM OF DIPLOMATIC CRIME AND IMMUNITY I. INTRODUCTION No one is above the law. This principle has been a driving force throughout the great ideological experiment known as democracy. From childhood, we are told that people who commit crimes must answer for them. However, the simplistic nature of this notion fails to capture the whole truth of the nuanced system of international law. International law permits certain individuals to escape accountability for their crimes. For centuries, the principle of diplomatic immunity has enabled foreign diplomats to avoid prosecution for violations of the host country's laws. 1 The Vienna Convention on Diplomatic Relations, to which the United States is a party, has codified customary international law.2 The Vienna Convention grants diplomats, their families, and diplomatic property numerous protections. -
767 Third Avenue Associates V. Permanent Mission of the Republic of Zaire: an Uncompensated Governmental Taking
DePaul Law Review Volume 45 Issue 1 Fall 1995 Article 6 767 Third Avenue Associates v. Permanent Mission of the Republic of Zaire: An Uncompensated Governmental Taking David Foster Bartlett Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation David F. Bartlett, 767 Third Avenue Associates v. Permanent Mission of the Republic of Zaire: An Uncompensated Governmental Taking, 45 DePaul L. Rev. 165 (1995) Available at: https://via.library.depaul.edu/law-review/vol45/iss1/6 This Notes is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. 767 THIRD AVENUE ASSOCIATES v. PERMANENT MISSION OF THE REPUBLIC OF ZAIRE: AN UNCOMPENSATED GOVERNMENTAL TAKING INTRODUCTION Diplomats enjoy many privileges and immunities which shield them from penalties or punishment others receive under the law of foreign states for the same actions.' Recent outrageous conduct by diplomats has placed those privileges and immunities under close scrutiny by the American public. 2 Never before, however, have diplomatic immuni- 1. The Vienna Convention outlines the privileges and immunities currently enjoyed by diplo- mats. Vienna Convention on Diplomatic Relations. Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95 [hereinafter Vienna Convention]. Articles 29, 31, and 32 of the Vienna Convention govern the protection of diplomats who have violated the laws or customs of a receiving state. Article 29 proclaims that a diplomatic agent is inviolable and may not be arrested or'detained. -
Exercising Diplomatic Protection the Fine Line Between Litigation, Demarches and Consular Assistance
Exercising Diplomatic Protection The Fine Line Between Litigation, Demarches and Consular Assistance Annemarieke Künzli* I. Introduction The last Draft Article that was proposed by the Special Rapporteur to the Inter- national Law Commission for inclusion in the Draft Articles on Diplomatic Pro- tection concerns the relationship between diplomatic protection and consular as- sistance. International law distinguishes between (at least) two kinds of interna- tional relations.1 This is stipulated by the existence of two separate treaties: the two Vienna Conventions of 1961 and 1963 have codified the rules with respect to dip- lomatic and consular relations respectively.2 A fundamental difference is that a dip- lomatic agent is a political representative of a state, while a consular officer has no such function.3 As a consequence, the establishment of a consulate in non- recognised territories does not always imply recognition while establishing an em- bassy usually does and immunities granted to ambassadors are markedly different from those granted to consuls.4 In accordance with the two regimes applicable to international relations, international law recognises two kinds of protection states can exercise on behalf of their nationals: consular assistance and diplomatic protec- tion. There are fundamental differences between consular assistance and diplomatic protection. A persistent subject of debate and controversy however is the question of which activities by governments fall under diplomatic protection and which ac- tions do not. This debate is fuelled by an equally persistent misunderstanding of * Ph.D-fellow in Public International Law, Leiden University. The author wishes to thank Prof. John D u g a r d and Prof. -
Coversheet for Thesis in Sussex Research Online
A University of Sussex DPhil thesis Available online via Sussex Research Online: http://sro.sussex.ac.uk/ This thesis is protected by copyright which belongs to the author. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the Author The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the Author When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given Please visit Sussex Research Online for more information and further details WHEN OLD PRINCIPLES FACE NEW CHALLENGES: A CRITICAL ANALYSIS OF THE PRINCIPLE OF DIPLOMATIC INVIOLABILITY THESIS SUBMITTED FOR THE DEGREE OF DOCTOR OF PHILOSOPHY YINAN BAO SUSSEX LAW SCHOOL UNIVERSITY OF SUSSEX July 2014 DECLARATION I hereby declare that this thesis has not been submitted, either in the same or different form, to this or any other University for a degree and the work produced here is my own except stated otherwise. Sign: Yinan Bao Date: i ACKNOWLEDGEMENTS I would like to thank Professor John Craig Barker and Dr Tarik Kochi for their constructive guidance and recommendations. In particular, I am extremely grateful to Professor Barker, whose support and inspired suggestions have been invaluable throughout the completion of this thesis. During my research, Professor Barker generously lent me more than ten books from his personal collection which proved to be invaluable to my research and the writing of the thesis. I must express my gratitude to my parents. -
Espionage and the Forfeiture of Diplomatic Immunity
NATHANIEL P. WARD* Espionage and the Forfeiture of Diplomatic Immunity When nations conduct intercourse beyond their territorial boundaries, the need for transnational representation is fundamental if national objectives are to be accomplished. To accommodate this need, the world community has provided a special regime for diplomats, consuls and representatives to inter- national organizations.' That regime accords certain privileges and immunities in the receiving state2 to protect the sending state's unhampered conduct of foreign relations3 and to avoid embarrassment for its government.' The sources of these privileges and immunities are found in the customary practice of nations, the domestic laws of the receiving states' and multinational 6 and bilateral' treaties. This diplomatic grant confers criminal and civil immunity *B.A., Virginia Military Institute; J.D. California Western School of Law. A retired army cap- tain in military intelligence, Mr. Ward is currently a clerk for a federal magistrate in San Diego. 'J.L. BRIERLY, THE LAW OF NATIONS 255 (6th ed. 1963). 'RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW OF THE UNITED STATES, § 63, comment c at 195 (1965): The term "privileges and immunities" is often used in international law without differentiation between its two constituents. To the extent that any distinction is made between the two, there is a tendency to use "privilege" in referring to a right which is affirmatively described, such as the right to employ diplomatic couriers, and to use "immunity" in referring to a right which is described in a negative sense, such as freedom of diplomatic envoys from prosecution. As used in the Restatement of this Subject, the term "immunity" includes both, although the term "privileges and immunities" is retained when it conforms to existing practice. -
V. Special Subjects of Diplomatic Privileges and Immunities
Pázmány Péter Catholic University Faculty of Law and Political Sciences Doctoral School of Law and Political Sciences Natália DVORNYICSENKÓ The specific aspects of immunities and privileges of diplomatic agents in international law: legal theory and practice Ph. D. thesis Supervisor: Prof. Péter KOVÁCS, DSc. “Material, prepared for scientific debate.” Manuscript completed on 1 June, 2016. Budapest 2016 To my beloved parents. 2 Acknowledgements The present dissertation is a result of my enduring interest in diplomacy – including its history, advancement and legal specifics. This interest has grown out of my professional experience in the field of diplomacy and international relations. No research achievement is independent from the research environment, mentors and advisers, of course. First of all, I would like to thank my supervisor Professor Péter Kovács for the invaluable counsel and for sharing his expertise, also support all the way, who has been guiding me for the second time already, after my Master thesis on the topic of contemporary diplomacy. My sincere gratitude also goes to Professor Vanda Lamm, whose help, suggestions and encouragement I really appreciate. I am very grateful to the Doctoral School of Law and Political Sciences for the gained knowledge, support in research and professional administration. I am thankful for the assistance of library staff and experts of the Ministry of Foreign Affairs of Hungary, the Library of the Hungarian National Assembly, the Bodleian Law Library at the University of Oxford, the Libraries of the London Metropolitan University and the Harvard Law School Library, who helped make my research on diplomacy more effective. Above all, I would like to thank my parents for their endless support throughout this project. -
Diplomacy in the Modern World: a Reconsideration of the Bases for Diplomatic Immunity in the Era of High-Tech Communications James S
Hastings International and Comparative Law Review Volume 21 Article 3 Number 2 Winter 1998 1-1-1998 Diplomacy in the Modern World: A Reconsideration of the Bases for Diplomatic Immunity in the Era of High-Tech Communications James S. Parkhill Follow this and additional works at: https://repository.uchastings.edu/ hastings_international_comparative_law_review Part of the Comparative and Foreign Law Commons, and the International Law Commons Recommended Citation James S. Parkhill, Diplomacy in the Modern World: A Reconsideration of the Bases for Diplomatic Immunity in the Era of High-Tech Communications, 21 Hastings Int'l & Comp. L. Rev. 565 (1998). Available at: https://repository.uchastings.edu/hastings_international_comparative_law_review/vol21/iss2/3 This Note is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings International and Comparative Law Review by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Diplomacy in the Modern World: A Reconsideration of the Bases for Diplomatic Immunity in the Era of High- Tech Communications By JAMES S. PARKHILL I. Introduction On January 3, 1997, the second-ranking diplomat to the United States from the Republic of Georgia, driving home late at night, struck two cars stopped at a red light. The accident caused the death of Joviane Waltrick, a sixteen year-old passenger in one of the cars.' Police estimate that the diplomat, Mr. Gueorgui Makharadze, was traveling at close to eighty miles2 per hour when the accident occurred in a twenty five miles per hour zone.