| Inviolability |
Inviolability is not absolute permission to
break the host state's laws, but it does assure the diplomat (person) is
safe from violations, profanations and coercion of the host state.
This is the oldest diplomatic privilege and assures the diplomat the same
privileges as a sending state's monarch, assuring the ambassador is not just
another foreign citizen. Abuse of this could cause war (as seen in
Bulgaria).
A host nation's agents may not enter a sending state's diplomatic
mission or diplomat residences or correspondence or means of transport.
Russia let its Canadian embassy burn to the ground rather than allowing
Canadian firefighter access. |
| Extra-territoriality |
This is the aggregate number of exemptions for
local jurisdiction (like taxes) a diplomat has. This is a newer term
that came into being around the time of Grotius. However, this does
not mean that when you are on a sending state's mission property you are in
the sending state, although you need to treat it as such. |
| Extra-territoriality compared to Inviolability |
Inviolability means the diplomat is immune from
punishment for law breaking.
Extra-territoriality means the diplomat is exempt from some laws that apply
to a host nation's citizens, like paying sales tax. |
| What is the purpose of diplomatic privileges? |
It is good for the host and sending states who
attain benefits from having diplomats handle state representation issues. It
avoids the breach of another sovereign and allows diplomats to do their
duties.
If each state does not treat the other's diplomats equally, one state could
say (as Reagan did) that the privileges will require reciprocity. |
| What does International Law have to say about
diplomatic immunities? |
Host nations must enact AND ENFORCE domestic
laws for diplomatic immunity. In 1978 the USA wrote a law (PL 95-393)
to bring the USA into congruence with International
Law and both Geneva Conventions on diplomats and consulates. |
| What are some USA restrictions on diplomatic
immunities? |
Legal proceedings involving the diplomat in the
succession of heritors, as executor for an estate, or in diplomat's private
business ventures.
Diplomats must have $1,000,000 minimum liability. |
| What is the result of diplomatic immunities? |
While a diplomat is not allowed to break a host
country's laws, inviolability means the diplomat can not be punished for
breaking those laws.
Diplomats cannot be
o required to appear in court
o required to pay import taxes, even for their own business ventures
o impeded from leaving a host country, even though war may exist with
the sending state.In addition:
o Children born to a visiting nation's diplomat are considered
citizens of the sending country. |
| Head of State and Head of Government |
The Head of State does not normally represent
the state. The Head of Government does. |
| Head of Government and Foreign Minister |
The Foreign Minister is the official
communicator for the government although the Head of Government remains the
senior administrator. |
| Most important government papers according to
International Law |
International correspondence |
| Heads of State do -- as well as Foreign
Ministers -- have a special place under international law. |
The Heads of States have traditional roles left
over from the days when monarchs were these heads. The Foreign
Ministers are to orderly conduct International Affairs, by being the ONE
VOICE and ONE PLACE for communications to and from other Foreign Ministers. |
| Foreign Minister and International Organizations
and Ambassadors |
The Foreign Minister is theoretically the proper
route for all communications to the government, including those from a
country's own ambassadors and International Agencies like the UN. |
| Any state has the right to decide who resides
within their borders. |
Kidnapping Adolph Eichmann from another country
was an example of an illegal international act by Israel. |
| Diplomatic missions from a sending state must
get permission to go into the host state. |
Diplomatic immunity can only be provided by the
host state. Types of missions include organs of state, temporary
organs of state and agencies. Agencies will not get diplomatic
immunity. |
| Organs of State |
Embassy |
| Embassy |
An embassy is a diplomatic mission with humans
representing the sending state to the host state. |
| Embassy duties |
1. Represent the interests of the sending
state and its inhabitants.
2. Report host state conditions with legal means.
3. Develop friendly relations in various spheres like economic and
scientific work. |
| Embassy hierarchy |
Ambassador - for embassy (Usually politically
assigned)
(Deputy) Chief of Mission - for legation (always a career diplomat, and in
an Embassy the DCM becomes the Charge d'affaire if the ambassador is
missing.
Heads of missions get full diplomatic immunity from all a host state's
criminal and civil laws.
Next comes the heads of the political, economic, administrative and other
functions as well as the Consular General. Members of missions only
get diplomatic immunity from criminal and sate laws in performing their
duties.
|
| Heads of the political, economic, administrative
and other functions |
These people are First, Second or Third
Secretaries. |
| Consular General |
Head of all consular functions, works out of a
consulate in the host's capitol, and usually is also a First, Second or
Third Secretary. |
| Bilateral Ambassador |
In each country with whom a nation has
diplomatic ties there will be ONE bilateral ambassador, although other
ambassadors in the same capitol may exist, as ambassadors to international
agencies. |
| Types of people in Embassies |
1. Diplomats who get diplomatic immunity
2. Staff have less immunity and their residents may not be inviolable.
3. Local employees have some degree of immunity, like that from
subject to search and seizure WHILE DOING official business. |
| Types of diplomats |
1 Ambassador
2. Deputy Chief of Mission
3. First, second and third secretaries
4. Attachees |
| Attachees |
Very specialized diplomatic personnel for
specific things like agriculture, drugs, defense, legat (FBI-like),
cultural, commerce |
| Requirements for diplomatic relations |
Each nation must mutually consent to a bilateral
act between their nations. This results (usually) in ambassadors
in each country, e.g. US has 144 embassies abroad and 137 foreign embassies
in the USA. |
| PNG = Personna non grata |
A host nation may decide that a member of the
visitors diplomatic mission is a personna non grata. |
| Letter of Credential |
Theoretically the appointment of any diplomat
requires the Head of the sending state to send credentials to the head of
the receiving state, but this usually happens only at the ambassador level
because the ambassador really will meet with the head of state. But
other credentials go to the foreign department working to represent the head
of state. |
| Diplomat reaccredidation |
When there is a change in the head of state in a
non democratic country, diplomats need to be reaccredited, or if a diplomat
changes from one level secretary to another. |
| Severance of diplomatic relations |
In the modern world a state is seldom
derecognized, but governments are. When this severance occurs, the
sending nation closes down its organs of state, not necessarily its
agencies. |
| Displeasure with host country |
To show displeasure a sending nation may recall
its Ambassador. The DCM then becomes the Charge d'affaires. |
| "Good Offices" |
After breaking diplomatic relations with Iran we
used the "GOOD OFFICE" of the Swiss government as our means of communicating
with Iran. |
| Diplomatic mission disappears |
when the state disappears, like UAR, Ottoman
Empire, Austro-Hungarian empire. |
| Types of diplomatic immunity |
|
| 1961 Geneva Convention on diplomats |
This Convention described ambassadors,
secretaries and attachees, among other general rules for diplomatic
relations, including diplomatic communication protocol through foreign
ministers, communications from head of state to ambassador are to be secret,
and allowed to be sent in code. |
| Diplomatic correspondence, pouches and couriers |
Inviolability of diplomatic correspondence as
well as pouches of any size is recognized, as is the inviolability of the
couriers of such packages. Couriers may not be arrested or detained. |
| 1961 Geneva Convention on diplomats WHEN
SILENT in the text of the treaty ... |
revert to "customary law" |
| Consular Offices |
Consulates -- who may not be in the embassy --
are not representatives of the state but someone assigned by the state to do
something. |
| Consular duties |
1. Protect Interests of sending state
2. Further development of commercial relations
3. Gather information on economy
4. Issue passports
5. Issue Visas
6. Help own nationals protect interests (including business)
7. Assist crew members of ships and aircraft. |
| What is International Law? |
International law is a body of principle, customs and
agreements (such as treaties) which, while not statutory, sovereign states
consider abiding by because it is in their nation's best interest. |
| What does International Law do? |
International law provides order by describing and building
barriers to unacceptable international behavior and provides consistent and
reliable standards for peaceful resolution of disputes between states. |
| Why should a nation obey International Law? |
There is no universal international enforcement mechanism to
make nations obey international law. Nations abide by it for their own
best interests. |
| What is the positive/natural school of law. |
The positive school of law, expounded by men like
Cornelius
Van Bynkershoek, said that the positive law of nations could be found in
customs and written treaties. Naturalists, like Samuel Pufendorf,
denied positive law and maintained that international law was merely a law
of nature. |
| How is International Law enforced? |
Diplomatic protests,
mediation by a third party,
international tribunal,
universal or regional international agency,
sanctions,
use of force |
| Describe the history of International Law |
3100BC Umma and Lagash
Roman Law Jus Gentium, Jus Civile
1480-1546 Francisco De Vitoria - Indians had rights but the Spaniards had
Jus Gentium.
1548-1617 Francisco Suarez - jus gentium is more than simply natural law
1583-1645 Hugo Grotius - Father of International law
1648-1651 Treaty of Westphalia
1758 Vattel "Law of Nations"
1780 Bentham "International Law"
1793 Conventions of Paris (treatment of wounded)
1815 Congress of Vienna, redrew map of Europe
1823 Monroe Doctrine
1856 Peace of Paris, lasted until WWI
1863 Geneva Convention (treatment of wounded)
1872 Geneva Tribunal (civil war, Great Britain pays USA)
1919-1921 Treaty of Versailles, League of Nations
1932 WWII begins (Japan - Manchuria)
1935 Italy invades Abyssinia
1939 Hitler invades Poland
1946 UN established
|
| Who was Hugo Grotius? |
He lived 1583-1645 and is called the Father of International
law. Wrote Mare Liberum, and De Jure Belli ac Pacis Libri
Tres |
| What are the sources of International Law? |
1 International treaties (law
making; particular, regional - contract treaties, resolutions and declarations)
2 international custom or Customary Law (origin of rules, proof of
being true rule, evidence for rule, slow process, overcome by law making
treatment that does not violate jus cogens, goes back to Roman's jus gentium,
e.g. 3 mile limit)
3 General Principles
(so fundamental it is recognized in legal systems by
virtually all)
4 Evidence of International Law
(Judicial Decisions, National Court Decisions,
recommendations from International Conferences)
5 Comity (courtesy)
Writings of Publicists
Equity (balance,
fairness, proportionality, impartiality) |
| Treaty of Westphalia |
1648-1651 Treaty of Westphalia ended the Thirty Year War,
created the Netherlands, England acquired France's colonies, secularized
governments, all obliged to come to the aid of any one attacked, disputes to
be settled by arbitration |
| Congress of Vienna |
1815 Congress of Vienna, redrew map of Europe,
balanced power, codified and clarified International Law, Rhine, Rhone and
Seine international waterways, condemned slavery, joined Norway & Sweden,
Belgium & Holland, reduce Germany in size |
| Peace of Paris |
The 1856 Peace of Paris (after the Balkans
crisis and the Crimea and Franco-Prussian War, lasted until WWI. It
recognized self determination, prohibited privateering, required blockades
to be effective, gains in rights for neutrals |
| What are the principles of International Law? |
Sovereignty
Consent |
| Jus Cogens |
Preemptory laws |
| International vs. Municipal Law |
Municipal law is the law of individual nations
which, according to the Monistic view is beneath International Law, as
opposed to the dualism view that they are separate. |
| Status of States under International Law |
Under international law nation states and treaty
created organizations have legal personalities and legal obligations and
rights and privileges to international settlements by institutions. |
| Types of States |
1..Unitary states have one
central source of power.
2..Federal States have 2 or more governments
but international law only concerns the federal government
3..Confederations consist of two or more
sovereign states joining together without forming a single government and
international law recognizes each state as sovereign.
4..Permanently neutral states (Switzerland
before joining EU and UN), Austria, Belgium (until 1914), Sweden, Costa
Rica, Finland)
5..Neutralized states like Laos
6..Independent states like the Vatican
7..Dwarf states like Monaco, Lichtenstein, San
Marino
8..Mini-states like islands including Dominica,
Tubulu, Naru
9.. Condominiums are ruled by two countries are
NOT part of the international community. These include states like Andorra
(run by France and Spain), the New Hebrides (run by the UK and France, but
now independent)
|
| Requirements to be a state |
1..Settled and inhabited with boundaries
2..Organized under a government that can make international agreements
3..Independent, so not Palestine, but nations may willing give some
sovereignty to organizations like the E.U., or other states (e.g. Monaco
uses France for military protection) |
| Requirements for a government |
1..must represent population
2..must be able to control population without violating human rights
3..must have likelihood of permanence |
| Requirements for a government - permanent organ |
1. Head of state
2. Head of government
3. Diplomatic Service
4. Consular Service
5. SOME armed forces |
| Countries not recognized by USA do not legally
exist |
North Korea, Libya, Cuba, Somalia, Sudan |
| Express Recognition of a new state |
1. Treaties
2. Formal statement |
| Implied Recognition of a new state |
1. Communications between heads of states
2. Exchange of diplomats - the higher the more likely this fulfills intent
of implied recognition
3.Acknowlegement or salute of flag
4. Conclusion of an agreement
5. Acceding to the existence of a claim |
| Types of recognition |
1. De Jure means a
state has come into being lawfully. East Germany is an example of one
that did not come into being legally.
2. De Facto recognition means a state is
recognized, even though it may simply be a subset of a country in rebellion.
3. Collective recognition is by many nations in
a multi-lateral or peace treaty
4. Conditional recognition means we recognize
you WHEN and IF |
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