INDIVIDUALS UNDER INTERNATIONAL LAW

The following are the topics covered under international law:

Nationality
Nationality is the connecting link of a person with a country under international law. No one
can live without a connection with a country. If a person does not have such a connection, they
are known as a stateless person. Double nationality is also generally not preferred.
Citizenship is the connecting link between a person and a state under domestic law.
Reasons (Importance of Nationality):
❖ A person can claim protection from their own national country.
❖ Registration of birth, death, and marriage depends on nationality.
❖ In extraterritorial jurisdiction, nationality is relevant.
❖ To consider enemy status during war.
❖ Nationality acts as a qualification in certain cases.
❖ No country will extradite its own nationals.
❖ Nationality is important for international travel.
How can a person acquire nationality?
1. By Birth:
▪ Jus Soli (right of the soil)
▪ Jus Sanguinis (right of blood – nationality of parents)
▪ If parents have more than one nationality, the child can opt for any one
nationality after attaining majority.
▪ If parents choose nationality during minority, it generally cannot be changed
later.
2. By Naturalisation:
Through long and continuous association with a country.
3. By Registration:
A person can obtain nationality through registration.
4. By State Succession
5. By Option
Case Law: Nottebohm Case
Nottebohm was born in Germany. In 1905, he migrated to Guatemala. In 1931, he visited
Liechtenstein to see his brother. In 1939, he applied for and was granted nationality of
Liechtenstein. He then returned to Guatemala and continued his business.
In 1940, he was arrested and his properties were confiscated by Guatemala on the ground that
he was an alien enemy.
The court held that he was effectively a national of Guatemala, as he had a closer connection
there. His intention was to continue as a Guatemalan national.
Principle of Genuine Link:
If a dispute arises regarding the nationality of a person, their genuine link with the country
must be identified.
ADDL
Main Theories Related to Nationality
1. Active Nationality Theory
This theory states that a State has the right to exercise jurisdiction over its own nationals, even
when they are in a foreign country. Personal laws of an individual may continue to apply
beyond national borders.
In criminal law, it raises the issue of whether a State can try offences committed abroad by its
citizens. Problems may arise if the person changes nationality after committing the crime. Also,
an act may be a crime in one country but not in another.
This theory is debated, as some argue that extending criminal jurisdiction based on nationality
may conflict with international law, while others consider it the State’s duty to regulate its
nationals.
2. Passive Nationality Theory
Under this theory, a State may exercise jurisdiction over a foreigner if the victim is its national.
It aims to protect citizens when the State where the crime occurred fails to punish the offender.
However, it is controversial and considered an aggressive form of jurisdiction. Critics like
Donnedieu de Vabres argue that it allows powerful States to dominate weaker ones.
A major drawback is that the accused may be unaware of foreign laws and could be unfairly
punished under unfamiliar legal systems.
3. Statelessness
Statelessness refers to a situation where a person is not recognized as a national by any State.
According to UNHCR, such individuals lack nationality altogether.
It is a serious human rights issue, affecting millions worldwide.
Causes of Statelessness
1. Discrimination:
Laws based on race, religion, ethnicity, language, or gender may exclude certain
groups from nationality.
2. Poorly drafted laws:
Weak or unclear nationality laws may leave some people without citizenship.
3. Creation of new States:
Changes in borders or formation of new countries may leave people unable to prove
nationality.
 4. Birth in a foreign country:
A child may become stateless if neither the birth country nor the parents’ country
grants nationality.
5. Loss or deprivation of nationality:
Living abroad for long periods may result in loss of citizenship.
6. Lack of documentation:
Failure to provide proof like birth certificates or identity documents may prevent
recognition as a citizen.
Loss of Nationality (Loss of Citizenship)
Loss of nationality refers to a situation where a person ceases to be a citizen of a country. It
includes both voluntary and involuntary loss.
1. Voluntary Loss of Citizenship
This occurs when a person chooses to give up their nationality (relinquishment).
▪ It depends on the individual’s decision.
▪ Each country has its own legal procedure for this, though some countries may restrict
it.
2. Involuntary Loss of Citizenship
This happens when a State removes a person’s citizenship due to failure to follow legal
conditions.
It is not immediate and involves a legal process.
Indian Law on Loss of Citizenship
Under the Citizenship Act, 1955 (Section 10), the Central Government can deprive a person
of citizenship (especially those who acquired it by naturalisation or registration) on the
following grounds:
▪ Citizenship obtained by fraud or misrepresentation.
▪ Disloyalty to the Constitution or laws of India.
▪ Helping or communicating with an enemy during war.
▪ Assisting an enemy in any manner.
▪ Imprisonment for at least 2 years within 5 years after naturalisation.
▪ Living outside India for 7 continuous years without valid reasons (like study or
government service).
▪ Deprivation must be in the interest of public good.
▪ The person must be informed in writing before action is taken.
9–10. The matter is referred to a Committee of Inquiry, which submits a report before
final decision.
3. Expatriation
Expatriation means voluntarily leaving one’s country and renouncing nationality.
▪ It is based on personal choice.
 ▪ Often seen among professionals working abroad.
4. Renunciation of Nationality
Renunciation is the formal voluntary act of giving up citizenship.
Common reasons:
• Disagreement with laws
• Political or personal conflicts
• War situations
• High taxation policies
5. Loss by Substitution
This occurs when a person loses one country’s nationality after acquiring another.
Some countries may also cancel citizenship for taking foreign employment without
permission.
6. Loss by Expiration
In some cases, long residence abroad may lead to loss of connection with the home country,
though this is more practical than strictly legal.
7. Dual (Double) Nationality
Dual nationality means a person is recognized as a citizen by more than one country due to
different laws.
Rights include:
▪ Holding passports
▪ Voting
▪ Residence and work rights
▪ Entry into both countries
Effective Link Principle (Nottebohm Principle)
This principle, developed in the Nottebohm case (Liechtenstein v. Guatemala), states that a
person must have a genuine and real connection with a State for its nationality to be recognized
internationally.
It is mainly applied in cases of dual nationality to determine which State has a stronger link
with the individual. In the Nottebohm case, the court held that there was no real connection
between Nottebohm and Liechtenstein, as he obtained its nationality only to avoid problems in
Guatemala. Therefore, Liechtenstein could not exercise diplomatic protection on his behalf.
The Hague Convention, 1930
The Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws deals
with conflicts of nationality laws.
Article 4: A State cannot provide diplomatic protection to a person against another State if that
person is also a citizen of that other State.

ASYLUM
Derived from the Greek word “Asylon”, which means shelter. As per Article 14 of the
Universal Declaration of Human Rights, every person has the right to seek and enjoy asylum.
Asylum means granting protection and shelter to a person in a foreign country. It is considered
a fundamental human right. However, under international law, there is no obligation on the part
of a State to grant asylum. The granting of asylum is the discretion of the State.
Related Terms
▪ Refugee: A person who is forced to leave their country due to persecution.
▪ Asylee: A person fleeing prosecution (not a standard legal category like refugee).
▪ Migrant: A person who moves to another country for better job opportunities or
living conditions.
▪ Internally Displaced Persons (IDPs): Persons who are displaced within their own
country.
Types of Asylum
1. Based on Place
(a) Territorial Asylum
Asylum granted within the territory of a State.
Restrictions on Territorial Asylum
Territorial asylum cannot be granted to:
Persons who have committed:
➢ Crimes against peace
➢ War crimes
➢ Crimes against humanity
➢ Genocide
➢ Persons who have acted in contravention of UN principles
➢ Terrorists (as per United Nations Security Council Resolution 1373 (2001))
➢ Also supported by the Convention on the Financing of Terrorism

(b) Extra-Territorial Asylum

When a country grants asylum outside its territorial boundaries, but in places under its control
(like embassies, consulates, etc.), it is called extra-territorial asylum.
Case Law
Asylum Case (Colombia v. Peru)
(Popularly known as the Haya de la Torre Case)
➢ The person sought asylum in the Colombian Embassy situated in Peru.
 ➢ Issue: Whether granting asylum within another State’s territory is valid.
Held:
➢ The International Court of Justice held that such asylum is not binding on the
territorial State and cannot be unilaterally imposed.
Exceptions:
1. When there is a treaty between the States
2. When there is a customary practice
3. In case of imminent danger to life
Revocation of Asylum
Asylum can be revoked at any time, as it is based on the discretion of the State.
ADDL
Under international law, asylum is not just a humanitarian gesture but also a legal obligation
for states that are party to various international treaties, such as the 1951 Refugee Convention
and its 1967 Protocol. These treaties establish the rights of asylum seekers and refugees, as
well as the responsibilities of states to protect them. The right to seek asylum is also enshrined
in Article 14 of the Universal Declaration of Human Rights, which states that “everyone has
the right to seek and to enjoy in other countries asylum from persecution.”
Process of Seeking Asylum
The process of seeking asylum generally involves the following steps:
1. Application:
The individual submits an application explaining their identity, reasons for leaving
their country, and evidence of persecution.
2. Initial Screening:
Authorities conduct a basic check, often through a preliminary interview, to assess
whether the claim is valid.
3. Detailed Interview:
A thorough interview is held where the applicant explains their situation in detail to
prove their claim.
4. Decision:
Authorities decide whether to grant asylum based on the evidence and the applicant’s
fear of persecution.
5. Appeal:
If the application is rejected, the applicant may challenge the decision through an
appeal.
6. Grant of Asylum:
If approved, the person is allowed to stay in the country with legal protection and may
later obtain permanent residency or citizenship.
Types of Asylum in International Law
Asylum can be classified into different types based on where and how protection is granted.
The main types are:
1. Territorial Asylum
This is the most common form, granted within the territory of a State. It is based on State
sovereignty, allowing a country to protect individuals who have entered its borders.
Legal basis: 1951 Refugee Convention and its 1967 Protocol, especially the principle of non-
refoulement (no forced return).
Example: Dalai Lama was granted asylum in India in 1959.
2. Extraterritorial Asylum
This type is granted outside the territory of the State, such as in embassies, consulates, or
warships. It is less common and often involves diplomatic concerns.
3. Diplomatic Asylum
A form of extraterritorial asylum granted within embassies or consulates in a foreign country.
It is usually given in urgent situations but is not universally recognised in international law.
▪ Legal basis: Vienna Convention on Diplomatic Relations (principle of inviolability of
diplomatic premises).
▪ Example: Julian Assange sought asylum in the Ecuadorian Embassy in London.
4. Asylum on Warships
A rare form of extraterritorial asylum granted on a State’s warship, which is considered part
of its territory. It is based on the principle of sovereign immunity.
5. Temporary Asylum
This is short-term protection given to individuals fleeing immediate danger, such as war or
disasters, until it is safe for them to return.
Example: Refugees during the Syrian Civil War were granted temporary asylum in several
countries.
Conclusion
Asylum serves as an important protection mechanism in international law. While territorial
asylum is the most common, other forms like diplomatic and temporary asylum address
specific situations involving urgency and international relations.
Asylum and Extradition
➢ Asylum and extradition are interconnected concepts.
➢ When asylum starts, extradition ends, and when extradition begins, asylum ends.
➢ Extradition: One country hands over a criminal to another country where the person is
accused or convicted of a crime.
 ➢ There is no universal binding rule under international law; it is mainly governed by
treaties.
Reasons for Extradition
➢ To ensure criminal justice administration in a State
➢ To prevent threats to society
Basic Principles of Extradition
[Link] extradition of political offenders
➢ Political crimes are generally excluded from extradition.
➢ A person cannot be extradited for political crimes.
➢ Includes pure political offences (e.g., treason, sedition).
2. No Extradition for Religious & Certain Military Offences
➢ No extradition for religious offences
➢ Religious offences are generally excluded.
➢ Military offences (like desertion) are not extraditable unless they are also ordinary
crimes.
3. No Extradition of Own Nationals
➢ Many States refuse to extradite their own citizens.
➢ Instead, they may prosecute them domestically.
4. Rule of Double Criminality
A person can be extradited only if the act is a crime in both countries.
Factor v. Laubenheimer
Established that the offence must be punishable in both States.
5. Rule of Specialty
➢ The extradited person can be tried only for the offence for which extradition was
granted.
➢ Prevents misuse by the requesting State.

6. Principle of Proportional Punishment

Extradition may be refused if:
➢ Punishment is excessive or inhumane
➢ Example: death penalty (some countries refuse extradition unless assurances
are given)
7. Prima Facie Evidence
➢ The requesting State must show sufficient initial evidence.
➢ Ensures the case is not false or baseless.
8. No Extradition for Trivial Offences
 ➢ Trifling offences
➢ Minor offences are usually not considered serious enough.
9. Procedural Formalities Must Be Followed
➢ Proper legal procedures, documents, and treaties must be complied with.
➢ Includes:
▪ Arrest warrant
▪ Supporting evidence
▪ Diplomatic request
Important Case
Savarkar Case (France v. United Kingdom)
➢ Vinayak Damodar Savarkar escaped at a French port but was recaptured by British
authorities.
➢ France objected.

Held:
➢ Even though there was irregularity, the surrender was not invalidated.
➢ Shows importance of procedural compliance, but also limits of challenging
extradition once completed.
ADDL
Extradition is the official process whereby one nation or State surrenders a suspected or
convicted criminal to another nation or state. Between nation, States Extradition is regulated
by treaties. Extradition Comes to end when asylum Starts.
Meaning of Extradition
Term ‘extradition’ denotes the process whereby under a concluded treaty one State surrenders
to any other State at its request, a person accused or convicted of a criminal offense committed
against the law of the requesting State, such requesting State being competent to try the alleged
offender.

In Extradition, there are two States involved, the territorial State for example – State, where an
accused or convicted is found, and to whom the request is made. And another state is requesting
State.
Definition of Extradition
Some eminent jurist defines extradition as follows –

Lawrence-
Lawrence defines Extradition as “the surrender by one State to another of an individual who
is found within the territory of the former, and is accused of having committed a crime within
the territory of the latter; or who having committed a crime outside the territory of the latter is
one of its subjects and as such by its law amenable to its jurisdiction.”
Extradition means one country handing over a person to another country because that
person is accused or guilty of a crime.
In simpler terms:
❖ If someone commits a crime in one country and runs to another country,
❖ The second country can send (surrender) that person back to the first country to
face trial or punishment.
It also applies when:
❖ The person is a citizen of a country, and
❖ That country wants to try them under its own laws, even if the crime happened
elsewhere.
Oppenheim
According to Oppenheim, “extradition is the delivery of an accused or a convicted individual
to the State on whose territory he is alleged to have committed or to have been convicted of, a
crime by the state on whose territory the alleged criminal happens for the crime to be.”
Extradition means a country sending a person who is accused or convicted of a crime
back to the country where the crime was committed, so they can face justice there.
As defined by Hon’ble Supreme Court of India,
Extradition - means one country handing over a person to another country
because that person is accused or already convicted of a crime,
and the other country has the legal right to try or punish them.
Purpose of Extradition
A Criminal is extradited to requesting State because of the following reasons –
1. To ensure justice is served:
Extradition is based on the idea that criminals should not escape punishment.
Countries cooperate with each other to help bring offenders to justice.
2. To prevent crime (deterrence):
It acts as a warning that criminals cannot avoid punishment by fleeing to another
country.
3. To protect the interests of the State:
It helps maintain law and order in the country where the crime has affected its
interests.
4. To promote international cooperation:
Extradition strengthens cooperation between countries in dealing with crimes that
have social and international impact.
5. Based on mutual understanding (reciprocity):
Countries agree to extradite offenders with the expectation that the same assistance
will be given in return when needed.
 6. For effective trial:
The country where the crime was committed is in a better position to conduct the trial,
as evidence and witnesses are more easily available there.

When can it be initiated?

An extradition request can be made for a person who is:
➢ under investigation,
➢ facing trial, or
➢ already convicted of a crime.
In cases where the matter is still under investigation, the law enforcement authorities must be
very careful to ensure that they have sufficient initial evidence (prima facie evidence). This is
necessary to support the allegations before the courts of the foreign country from which
extradition is sought.
What is the Legislative Basis for Extradition in India?
The Extradition Act 1962 provides India’s legislative basis for extradition. It consolidated the
law relating to the extradition of criminal fugitive from India to foreign states. The Indian
Extradition Act, 1962 was substantially modified in 1993 by Act 66 of 1993.
What is the Extradition Treaty?
An extradition treaty is an agreement between India and another country for the surrender of
fugitive criminals. It is legally binding on India and lays down the rules for extradition. Usually,
such treaties are made between two countries (bilateral agreements).
India currently has extradition treaties with 43 countries and extradition agreements with
11 countries.
Extradition Procedure in India
▪ Information about fugitive criminals wanted by other countries is received either
directly from those countries or through Interpol.
▪ This information is then forwarded by the Central Bureau of Investigation (CBI) to
the concerned police authorities.
▪ It is also shared with immigration authorities to prevent the person from escaping.
▪ Thereafter, appropriate action is taken under the Extradition Act, 1962.
A few common bars on extradition
1. Lack of dual criminality:
If the act is not considered a crime in the requested country, extradition can be
refused.
2. Political offences:
Most countries do not extradite persons accused of political crimes, except in cases
involving terrorism or serious violence.
 3. Risk of harsh punishment:
Extradition may be refused if the person is likely to face death penalty, torture, or
inhuman treatment in the requesting country.
4. Jurisdiction issues:
If the requested country has legal authority over the crime, it may refuse extradition.
5. No extradition treaty:
In the absence of a treaty or agreement, extradition is generally not granted.
Indian nationals who return to India after committing offences in West Asia/Gulf countries are
not extradited to those countries. They are liable to be prosecuted in India in accordance with
Indian Law, as per bilateral treaties with these countries (except Oman)
The issue of extradition gained attention in the case of Vijay Mallya, who is accused of
fraud and money laundering. He stayed in the United Kingdom to avoid legal proceedings
in India. In December 2018, a UK court ordered his extradition to India.
Recent Developments in India (Extradition)
India has a strong legal framework for extradition, especially for organized crimes. However,
loopholes were identified in handling economic offences. Fraud cases increased significantly,
reaching around 6,000 cases in 2017–2018. Earlier, there was no specific law to deal with
fugitive economic offenders. To address this, India enacted the Fugitive Economic Offenders
Act, 2018, aiming to prevent offenders from escaping justice by fleeing abroad and to uphold
the rule of law.
In 2019, the banking and financial sector suffered losses of nearly ₹41,000 crores due to fraud.
High-profile cases like Vijay Mallya and Nirav Modi highlight the growing importance of
extradition, as both are undergoing extradition proceedings.
Notable Cases
1. Mehul Choksi Case
Mehul Choksi is accused in the Punjab National Bank fraud case involving charges like
criminal conspiracy, corruption, and money laundering.
▪ He fled to Antigua and Barbuda and obtained citizenship through an investment
scheme.
▪ The Antiguan authorities have been reluctant to extradite him, citing concerns about
possible inhumane treatment in India.
▪ This has made his extradition legally and diplomatically challenging for India.
2. Ravi Pujari Case
Ravi Pujari was a gangster involved in serious crimes including murder and extortion.
▪ He fled India and stayed in countries like Australia, United Arab Emirates, Burkina
Faso, and Senegal under a false identity.
▪ Since India had extradition arrangements with Senegal, he was successfully extradited
back to India.
 DIPLOMATS UNDER INTERNATIONAL LAW
A diplomat is a person who represents his national country in the country where he is
appointed.
The history of diplomacy is related to ancient Vedic literature.
Vienna Convention on Diplomatic Relations, 1961
Under international law, there are 3 categories of diplomats:
1. Ambassadors
2. Ministers Plenipotentiary
3. Chargé d’affaires
Ambassador: Representative of the Head of the State.
Ministers Plenipotentiary: Representative of a group of countries.
Chargé d’affaires: They are the representatives of the foreign affairs minister.
It is not mandatory to appoint diplomats in all three categories.
High Commissioners are equal to ambassadors. They are appointed by Commonwealth
nations.
Nuncios are diplomats from the Vatican.
Functions of Diplomats
1. Representation function: They represent the interests of their own country. The
country which appoints a diplomat is called the sending State, and the country where
they are appointed is called the receiving State.
2. Protection function
3. Negotiation
4. Observation
5. Promote friendly relations
6. Consular functions
There is a 4th category of representatives called consuls.
They are governed by the Vienna Convention on Consular Relations.
They represent the State in the receiving State with respect to commercial and navigational
matters.
Privileges, Immunities and Rights
The receiving State cannot arrest a diplomat.
Diplomats can practice their own religion wherever they are, and the receiving State must
provide all facilities.
Theories as to Justification for Immunities
1. Extra-territorial theory
Generally, diplomats are under the extra-territorial jurisdiction of the sending State.
Because of that, they are entitled to certain privileges in the receiving State.
This indirectly or directly means they are immune from the receiving State.
2. Theory of representation
Diplomats are representatives of a country or government.
3. Functional theory
Due to the special functions they perform, they are entitled to privileges.
Rights
Inviolability of diplomatic person
Inviolability means the receiving State’s laws are not applicable to diplomats.
(Article 28 of the Vienna Convention on Diplomatic Relations)
Inviolability of diplomatic premises (Article 22)
Diplomatic premises are immune from the receiving State’s laws.
Inviolability of mission staff (Article 30)
The law classifies the staff into two categories:
➢ Manual employees
➢ Administrative and technical staff
They are entitled to similar types of immunities.
Manual labourers are not entitled to any immunities.
Freedom of movement (Article 26)
Every diplomat has freedom of movement like a national of the receiving State.
Inviolability of archives and documents (Article 23)
None of the documents of the diplomatic mission shall be scrutinised by the receiving
State.
Freedom of communication (Article 26)
Every diplomat has freedom to communicate with the sending State. All necessary facilities
should be granted.
Inviolability of diplomatic baggage
The baggage of diplomats cannot be inspected, even during air travel.
Immunity from local jurisdiction
Diplomats are not liable to any local jurisdiction.
Exemption from social security measures
A diplomat is not liable for any social security measures.
Freedom of religion
Every diplomat is entitled to practice and profess his own religion.
Immunity from taxes and customs duties
Diplomats are not liable to pay any taxes and customs duties, except indirect taxes.
Inviolability of family members
Two conditions need to be satisfied:
➢ Their names should be included in the list of family members
➢ They should live under the same roof as the diplomat
Waiver of immunity
A diplomat can waive his immunity under Article 38.
The waiver must be express.
Transit immunity
During transit, a country can grant immunity to a diplomat.
(Article 40)
Termination of Diplomatic Mission
➢ War or similar situations
➢ Recall
➢ Recall at the request of the receiving State
➢ Declaring persona non grata (unacceptable person)
➢ Notification
➢ Death of diplomat
Consuls
Vienna Convention on Consular Relations, 1963
There are 4 categories:
a) Consul General
b) Consuls
c) Vice Consuls
d) Consular Agents
Functions of Consuls (Article 5)
1. Protecting the interests of the sending State
2. Protecting the interests of nationals
 3. Furthering commercial and economic relations with the receiving State
4. Promotion of friendly relations
5. Reporting conditions
6. Issuance of passports and travel documents
7. Transmission of judicial and extra-judicial documents
8. Supervision and inspection of vessels and aircraft
9. Acting as a notary and civil registrar
10. Assisting nationals of the sending State
Privileges, Immunities and Special Rights
Same as diplomats.
Termination of Consuls
(Privileges can be modified by individual countries.)
ADDL
Introduction
Diplomats are persons who live in foreign countries as representatives of the country that
sends them. They act as a connection between their home country and the country where they
are posted. Through this role, they perform diplomacy.
In International Law, diplomacy means the process through which States maintain or
establish relationships and carry out legal or political dealings based on their foreign policies.
Diplomatic functions may be carried out by the Head of State, Head of Government, Minister
of Foreign Affairs, or by diplomatic agents.
Law on Diplomatic Agents
The practice of sending and receiving diplomatic agents has existed since ancient times. In
earlier periods, messengers called “Doots” were sent from one kingdom to another. However,
this system was not uniform, and such representatives were not permanently stationed.
The system of sending permanent diplomatic agents began in the 17th century. By the
second half of that century, permanent legations became common, and diplomats were given
certain rights and duties that were largely similar in nature.
In 1815, the Congress of Vienna was the first to formally codify customary rules of
International Law regarding the ranks of diplomatic representatives. After that, diplomacy
continued to develop further.
Following the establishment of the United Nations, the responsibility of codifying laws
relating to diplomatic agents was given to the International Law Commission. The
Commission prepared draft articles and submitted them to the General Assembly. The
Assembly then held a conference in 1961, which resulted in the adoption of the Vienna
Convention on Diplomatic Relations.
Classification of Diplomatic Agents
Diplomatic agents accredited to a State are classified into different categories. According to
Article 14 of the Vienna Convention, 1961, they are divided into three classes:
1. Ambassadors – accredited to the Head of State
2. Envoys and Ministers – accredited to the Head of State
3. Chargés d’Affaires – accredited to the Minister of Foreign Affairs
Functions of Diplomatic Agents
The functions of diplomatic agents are determined by both International Law and the
domestic laws of the States. Article 3(1) of the Vienna Convention lists their functions:
1. Representation
Diplomatic agents represent the policies and views of their home State in the receiving State.
This function is mainly performed by the head of the mission. Oppenheim describes
diplomats as the spokespersons of their State and its Foreign Minister for communication
with the receiving State.
2. Protection
Diplomatic agents protect the rights and interests of their home State and its citizens in the
receiving State. However, this protection is limited by the municipal (domestic) laws of the
receiving State. International Law does not clearly define these limits.
3. Negotiation
Negotiation is one of the most important functions. The head of the mission usually
negotiates on behalf of the sending State with the receiving State to maintain friendly
relations. Diplomats must regularly report the results of these negotiations to their
government.
4. Observation
Diplomats observe events and developments in the receiving State, especially those that may
affect the interests of their home country. They then send regular reports to their government.
5. Promotion of Friendly Relations
Diplomats work to promote friendly relations between the sending and receiving States. They
also help develop social, cultural, and economic ties.
6. Consular Functions
Diplomatic agents may also perform consular functions when assigned. These include
registering births, deaths, and marriages of their nationals and issuing passports.
Diplomatic Immunities and Privileges
International Law grants diplomats immunity from the jurisdiction of the receiving State.
These rules are among the oldest and most widely recognized principles of International Law.
Basis of Diplomatic Immunity and Privileges
There are three main theories explaining why diplomats are granted immunity:
1. Extra-territorial Theory (Fictional Theory)
This theory states that diplomats are considered not to be within the territory of the receiving
State, but always within the territory of their home State. Even though they are physically
present in the receiving country, legally they are treated as if they remain in their own
country.
2. Representational Theory
According to this theory, diplomats are treated as personal representatives of the sovereign
(head of State). Therefore, they enjoy the same privileges and rights as the head of their State.
3. Functional Theory
This theory explains that diplomats are given immunity because of the nature of their work.
Their duties are special and complex, so immunity is necessary to allow them to perform their
functions effectively without interference.
Privileges and Immunities of a Diplomat
The Vienna Convention on Diplomatic Relations, 1961 lays down various rights and
privileges:
1. Inviolability of Diplomatic Agents
Diplomatic agents are considered inviolable, a principle recognized even before 1961.
According to Article 29, they cannot be arrested or detained. The receiving State must treat
them with respect and protect their personal freedom and dignity.
The receiving State must avoid any action that could harm diplomats and must also prevent
such harm by others.
However, this immunity is not absolute. In exceptional situations, such as when a diplomat
poses a serious threat (e.g., a drunk diplomat carrying a loaded gun in public or committing
violent acts), the receiving State may restrain or detain them to maintain order.
2. Inviolability of Staff of Mission
Immunities are also granted to mission staff. According to Article 37(2), administrative and
technical staff enjoy privileges similar to diplomats (Articles 29–35) if they are not nationals
or permanent residents of the receiving State.
These include:
• Personal inviolability (Article 29)
• Inviolability of residence (Article 30(1))
 • Immunity from criminal jurisdiction (Article 31(1))
• Tax exemptions (Article 34)
• Immunity from civil and administrative jurisdiction for official acts
Under Article 37(3), service staff (if not nationals or residents) enjoy limited immunity for
acts performed during their duties, along with exemptions from taxes on their salaries and
certain social security provisions.
3. Inviolability of Family Members
According to Article 37(1), family members of diplomats enjoy immunities if:
• They are not nationals or permanent residents of the receiving State, and
• They live as part of the diplomat’s household
For example, a child studying elsewhere and only visiting occasionally may not be
considered part of the household and may not receive immunity.
4. Inviolability of Premises
According to Article 21, the receiving State must help the sending State obtain premises for
the mission. The sending State has the right to display its flag and emblem (Article 20).
Under Article 22, the premises of the mission are inviolable, meaning authorities of the
receiving State cannot enter without permission.
Article 30 also extends this protection to the private residence of diplomats.
However, this protection is not absolute. Article 41 states that mission premises must not be
used in ways that are inconsistent with diplomatic functions or international law. If misused,
the receiving State can take necessary action.
5. Immunity from Being a Witness
Diplomatic agents are fully exempt from being compelled to act as witnesses in civil,
criminal, or administrative cases. They are also not required to give evidence before
commissions.
However, they may appear voluntarily if they waive their immunity. According to Article
31(2), they are not obliged to give evidence.
6. Immunity from Taxes and Customs Duties
According to Article 34, diplomats are exempt from most taxes and duties at national,
regional, and municipal levels. Earlier, this was based on courtesy, but the Convention
formalized it.
7. Immunity from Inspection of Personal Baggage
The diplomatic bag, used to send official documents and items, must not be opened or
detained (Article 27(3)).
However, Article 36(2) allows inspection of personal baggage if there are strong reasons to
believe it contains items not meant for official use. Such inspection must occur in the
presence of the diplomat or their representative.
8. Freedom of Communication
Diplomats are free to communicate with their home State for official purposes. Article 27
allows the use of codes, messages, and diplomatic couriers.
9. Freedom of Movement and Travel
Under Article 26, diplomats can move freely within the receiving State, subject to its laws
and security regulations.
10. Right to Worship
Under Article 3(1), diplomats have the right to practice any religion within their residence or
mission premises. However, they cannot invite local citizens or preach their religion in the
receiving State.
11. Immunity from Local Jurisdiction
Diplomatic agents are immune from the jurisdiction of local courts.
According to Article 31(1):
• They have immunity from criminal jurisdiction (cannot be prosecuted or punished)
• They also enjoy immunity from civil and administrative jurisdiction

TREATIES
Treaties are also known as charters, covenants, and declarations.
Generally, declarations are non-binding and voluntary.
Example: Universal Declaration of Human Rights, December 10, 1948.
Conventions are binding treaties.
Example: United Nations Framework Convention on Climate Change.
A covenant can be either binding or non-binding.
Example: ICCPR, ICESCR.
A charter is a treaty which deals with the establishment of an international organisation.
Example: League of Nations.
A statute is an international treaty which deals with the establishment, composition, and
powers of a judicial body.
Example: ICT and ICC.
A pact means agreement.
A protocol is a treaty which adds something to an existing treaty.
Treaties are governed by the Vienna Convention on the Law of Treaties, 1969.
As per this treaty, only sovereign States can enter into treaties. Individuals, MNCs, and
international organisations cannot be parties to a treaty.

Classification
Based on number of parties:
1. Multilateral treaties – consist of more than two parties.
2. Bilateral treaties – between two parties.
3. Plurilateral treaties – more than two, but with a limited number of parties.
Based on nature:
1. Law making treaties
UDHR, ICCPR, Child rights convention, Human trafficking etc.
2. Treaty-making contracts
Example: 123 Nuclear Agreement.
3. Self-executing treaties are those which become binding on a country immediately
upon signature.
4. Non-self-executing treaties are those which become binding only after domestic
incorporation.
Stages of Making a Treaty
1. Accreditation of Representatives
▪ States appoint representatives to negotiate the treaty.
▪ The official document giving them authority is called “full powers.”
2. Negotiation
▪ Representatives of States discuss and settle the terms of the treaty.
▪ If discussions are successful, a draft treaty is prepared.
3. Adoption of Draft
▪ The final draft of the treaty is formally accepted by the participating States.
▪ Usually done by agreement or majority.
4. Signature
▪ Representatives sign the treaty.
▪ Signature shows initial consent and intention to follow the treaty.
5. Ratification
▪ Final approval by the State according to its internal laws.
▪ It means the State agrees to be legally bound by the treaty.
▪ After ratification, the State must implement the treaty.
Accession and Adhesion
Accession means a State joins a treaty after it has been adopted.
Adhesion means a State that was not part of negotiation later joins the treaty.
Entry into force
A treaty becomes legally effective (comes into force) only when the conditions mentioned in
the treaty are fulfilled.
▪ Usually, this happens after a required number of countries ratify it.
▪ Sometimes, the treaty itself specifies a date or condition.
▪ Example: International Covenant on Civil and Political Rights came into force after
enough States ratified it.
Registration and Publication
After a treaty is formed, it must be registered with the United Nations.
▪ The UN Secretary-General acts as the official registrar.
▪ This ensures transparency and public record of treaties.
Procedure / Incorporation in domestic law
Even after a treaty is made, it is not automatically applicable inside a country.
▪ It must be incorporated into domestic law through legislation.
▪ Only then can courts enforce it within the country.
Reservation
When a country agrees to a treaty but refuses to accept certain provisions, it is called a
reservation.
It must be made at the time of signature or ratification.
Limitations on reservation:
❖ It should not be prohibited by the treaty
❖ Some treaties allow reservation only to certain provisions
❖ It should not defeat the object and purpose of the treaty
Scope and Applicability
Generally, treaties are binding only on the countries that are parties to them.
This is expressed by the maxim:
“Pacta tertiis nec nocent nec prosunt” (treaties neither harm nor benefit third parties).
Exceptions:
a) When treaties confer rights on third parties
b) When treaties reflect customary international law
c) Multilateral law-making treaties
d) Universal conventions dealing with international crimes
e) When a State voluntarily accepts treaty obligations
Example: Budapest Convention on Cybercrime
Invalidity of Treaty
A treaty is invalid if:
❖ Its object is illegal
❖ Fraud or misrepresentation
❖ Coercion or intimidation
❖ Impossibility of performance
❖ Violation of jus cogens (peremptory norms)
❖ Incapacity
Termination of Treaty
A treaty may end in several ways:
General Ways
❖ Expiry of time
❖ Completion of its purpose
By Acts or Situations
❖ War between parties
❖ Extinction of a State
❖ Withdrawal by giving notice
❖ If the treaty becomes harmful
❖ Non-performance of essential conditions
❖ Rebus sic stantibus (major change in circumstances)
❖ Conflict with jus cogens
Amendment of Treaty
Amendment means changing the provisions of a treaty.
❖ In bilateral treaties → both parties must agree
❖ In multilateral treaties → usually majority agreement
❖ In law-making treaties → all parties must agree
If all do not agree, changes can be made through a protocol.
Settlement of International Disputes
A dispute is a disagreement between two or more parties.
As per Article 2(3) of the UN Charter, disputes must be settled by peaceful means.
Peaceful Methods (Article 33)
❖ Negotiation: Direct discussion between parties
❖ Mediation: A third party helps in settlement
❖ Conciliation: A committee suggests solutions
❖ Arbitration: Dispute decided by an agreed tribunal
❖ Good Offices: A third party brings parties together

Example: Norway in Sri Lanka–LTTE issue

 ❖ Inquiry / Fact-finding: Investigation of facts
❖ Through international organisations: e.g., UN involvement
Coercive / Compulsive Methods
These involve pressure but not full war:
❖ Retorsion: Legal but unfriendly acts (tit-for-tat)
❖ Reprisal: Illegal acts justified as response to another illegal act
❖ Embargo: Blocking trade or detaining ships
❖ Pacific Blockade: Blocking ports without war
❖ Financial sanctions: Economic restrictions
❖ Diplomatic sanctions: Breaking or limiting relations
❖ Intervention: Interfering in another State’s affairs
ADDL
Concept of Treaty
A treaty is a written agreement between States, governed by international law, as defined under
Article 2(1)(a) of the Vienna Convention on the Law of Treaties. It may be contained in one or
more related instruments and may be called a pact, charter, or agreement. Mere political
statements or declarations do not qualify as treaties.
Classification of Treaties
Treaties can be classified based on their object, purpose, or number of parties. These include
political treaties (alliances or disarmament), administrative treaties (such as those establishing
organisations like World Health Organization), commercial treaties (like General Agreement
on Tariffs and Trade), as well as criminal, human rights, civil, and law-codifying treaties.
Binding Nature of Treaties
A State is legally bound only when it ratifies or becomes a signatory to a treaty. This is
based on the principle of pacta sunt servanda (agreements must be followed in good faith),
recognised under Article 26 of the Convention.
An exception was recognised in the North Sea Continental Shelf Cases, where certain treaties
were considered to have a norm-creating character, binding even beyond the parties.
States may make reservations (defined under Article 2(1)(d)) to exclude or modify certain
provisions, but not if such reservations defeat the object of the treaty. Reservations are
allowed to:
❖ encourage wider participation,
❖ increase ratifications,
❖ accommodate differences between States,
❖ uphold sovereignty, and
❖ avoid conflict with domestic laws.
Role of Treaties in International Law
Treaties are a primary source of international law. They regulate relations between States,
promote peace, security, and cooperation, and help maintain international order, as reflected in
the Preamble of the Convention.
Kinds of Treaties
Law-Making Treaties:
These create general legal rules binding on States. Their content is statutory rather than
contractual, and they impose mandatory obligations without requiring further rules. They
often deal with global issues like human rights and maritime law, are usually multilateral, and
may establish international institutions, tribunals, or systems.
Contractual Treaties:
These are generally bilateral or limited to a few parties and are based on mutual benefit,
such as trade or alliance agreements. They resemble contracts and depend on reciprocity; if
one party breaches, others may be released from obligations.
Parties to a Treaty
State Parties:
These are the signatories who have ratified and are fully bound by the treaty.
Third States:
Under Articles 34–37, third States are not bound by a treaty unless they consent. Rights may
be given to them (Article 36), but obligations cannot be imposed without consent (Article
35). Customary international law may still bind them in some cases.
Key Principle
Treaties are binding international agreements that regulate relations between States and must
be performed in good faith unless legally invalidated or terminated.