Public International Law 1 Dersi 5. Ünite Sorularla Öğrenelim

What are the principles quoted as the basis of jurisdictional immunity?

a. Par in parem non habet imperium, i.e., an equal has no authority over an equal.

b. The principle of non-intervention, i.e., the matters related to the acts, policy and transactions of a foreign state should not stand to scrutiny by the territorial state, lest it would amount to intervention in the internal matters of another state.

c. Rule of comity or reciprocity, i.e., the accepted rules of mutual conduct as between states, which each state adopts in relation to other states and expects other states to adopt in relation to itself. It may otherwise be considered as an unfriendly act.

d. Implied grant of license to a foreign sovereign or state to visit or function within its territory signifies immunity and imposes an implied obligation on the territorial state not to derogate from such a grant.

Briefly describe the concept and principle of state
jurisdiction.

The state jurisdiction signifies the power of a state to exercise control over persons, property, acts, and events under its national law. It includes the power to prescribe (prescriptive jurisdiction) and enforce (enforcement jurisdiction) as well as legislative, executive, and judicial rules. It may be civil and criminal, it may be concurrent with other states or it may be exclusive. “Jurisdiction” also connotes the competence of the court of law to try a particular dispute. As a rule, every state exercises exclusive jurisdiction within its own territory. However, International law does not put any limitation on the state’s power to exercise jurisdiction beyond its territorial limits. When a state exercises its jurisdiction beyond its territory, it is called extra-territorial jurisdiction. However, states generally do not exercise jurisdiction over acts with which they have absolutely no concern. The main principle to exercise jurisdiction, particularly in criminal matters, is that there should be a “substantial connection” between the alleged offender or the offence and the state exercising jurisdiction.

Which cases can be regarded as ultra vires?

In normal circumstances, courts are reluctant to exercise jurisdiction unless there is a substantial connection between the foreign element and the forum either by allegiance or by domicile. The defendant or the facts of the case should have some connection with the forum state. The exercise of jurisdiction without such a connection may be an ultra vires act.

What are the categories of heads of mission?

• Ambassadors or nuncios (or legates appointed by the Pope) accredited to Heads of State, and other heads of mission of equivalent rank,

• Ministers, envoys and internuncios, accredited to Heads of State,

• Charges d’affaires accredited to Ministers for Foreign Affairs.

What are some exceptions to the civil and administrative immunity of a diplomatic agent?

a. A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

b. An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;

c. An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

Who are "consuls"?

Consuls are the representatives of their state in a foreign country. However, consuls are not accredited to the receiving state and, therefore, are not entitled to the privileges and immunities accorded to diplomatic agents.

Who can be considered an "alien"?

A person who, under the law of a particular state, is not a citizen of that state.

Define the term "agrément".

The formal diplomatic notification by a state that the diplomatic agent selected to be sent to it by another state has been accepted, i.e. is persona grata and can consequently become accredited to it. The agrément is the reply to a query by the sending state, which precedes the sent diplomat’s formal nomination and accreditation.

What are the three functions of diplomatic missions?

• to protect the interests of the sending state and its nationals,

• to negotiate with the government of the receiving state, and

• to report about the conditions of the receiving state.

What is a "persona non grata"?

It means "person no longer acceptable".  Refers to a diplomatic agent who is unacceptable to the receiving state. The sending state should recall such an agent; if this fails to occur, the host state may ignore the presence of the agent or expel him from its territory.

What does "juristic person" mean?

An entity, such as a corporation, that is recognized as having legal personality, i.e. it is capable of enjoying and being subject to legal rights and duties. It is contrasted with a human being, who is referred to as a natural person.

Define the "letter of credence (lettre de créance)".

A formal document by which the head of an accredited state presents its newly appointed diplomatic agent to the head of state of the host country.

Define "extraterritorial jurisdiction".

Normally, every state exercises exclusive jurisdiction within its own territory. However, International law does not put any limitation on the state’s power to exercise jurisdiction beyond its territorial limits. When a state exercises its jurisdiction beyond its territory, it is called extraterritorial jurisdiction.

Define the term "ultra vires".

Meaning "beyond the powers" in Latin. Describing an act by a public authority, company, or other body that goes beyond the limits of the powers conferred on it. Ultra vires acts are invalid. The ultra vires doctrine applies to all powers, whether created by statute or by a private document or agreement (Martin, 2003: 513).

What is the right term for "the surrender by one state to another of a person accused of committing an offence in the latter"?

This case is called extradition.

In what manners a diplomatic mission may come to an end?

A diplomatic mission may come to an end in the following manners:

• Recall of the envoy: When the relations between the sending and the receiving states deteriorate, to express its displeasure and policy differences with the receiving state, the accrediting State may recall its diplomatic agent.

• Through notification: The functions of the diplomatic agent may come to an end through notification. Notification may be sent:
     • by the sending state to the receiving state; or
     • by the receiving state to the sending state.
     • Persona non grata: It is the right of the receiving state to declare at any time a diplomatic agent persona non grata, i.e., undesirable person without assigning any reason for doing so.

• The mission may come to end when the object of the mission has been achieved or on the expiration of the stipulated time.

• During an armed conflict, if it becomes difficult to dischargethefunctions of the mission, delivery of the passports to the envoy and the staff of the mission by the receiving state terminates the mission.

A diplomatic agent is exempt from all dues and taxes. However, there are some exceptions to this. Name at least three exceptions.

i. Indirect taxes, such as sales tax or service charges;

ii. Dues and taxes on private immovable property situated in the territory of the receiving state such as house tax;

iii. Estate, succession or inheritance duty, levied by the receiving state;

iv. Tax on income having its source in private investments in commercial undertaking in the receiving state;

v. Charges levied for specific services rendered such as road tax;

vi. Registration, court or record fees, mortgage dues, and stamp duty with respect to immovable property.

What is the basis and the extent of immunities that international organizations enjoy?

The immunities and privileges of the international organizations are based on the following:

• Their constitutions, for example Article 19 of the ICJ and Article 105 of the UN Charter;
• Agreement with the host country such as the Headquarters Agreement between the UN and the US;
• A multilateral treaty such as the 1946 General Convention on the Privileges and Immunities of the United Nations;
• Domestic legislation of the host country The extent of these immunities also depends on the above sources

Provide some reasons to exercise territorial jurisdiction.

• The state where the crime is committed generally has the strongest interest in punishing the criminal;

• The local forum is the most convenient one, since the witnesses and other facilities are most probably available there;

• The offender is most likely to befound there,

• To avoid the element of double jeopardy, i.e., subjecting the person to two legal systems at the same time.

What is state immunity limited to?

It is limited to all acts in the nature of "acta jure imperii" (act of state).