Diplomatic law

1.

DIPLOMATIC LAW
26 September 2018

2.

CONTENTS
1.
2.
3.
The notion of diplomatic law;
The sources of diplomatic law;
State’s institutions for foreign relations.

3.

Terms
Int’l law - “the body of rules and principles of action
which are binding upon civilized states in their
relations with one another (Int’l Law Commission)
Diplomatic law (DL) – the body of legal rules on the maintenance of peaceful
and official relations between subjects of international law through their
competent organs.
Diplomatic relations – the customary form of permanent contact
and communication between the subjects of int’l law.
1.
2.
3.
4.
5.
6.
Features
Diplomatic law is about political interstate relations (consular law – about economic and cultural relations
and administrative cooperation);
It is about peaceful relations;
It is about equal relations (principle of reciprocity);
It is about official relations;
It is about mutual agreement to maintain such relations;
It is about external relations (external nature and between the subjects of international law).

4.

II. Sources of diplomatic law (DL) (1)
1.
2.
Sources of public international law listed in the Statute
of the ICJ, Art. 38;
Other sources, not listed in Art. 38 of the Statute of ICJ

5.

II. Sources of DL (2): Sources of DL in
Art. 38 of the Statute of the ICJ
I.
-
-
“international conventions, whether general or particular,
establishing rules expressly recognized by the contesting
states” (Statute of ICJ,Art. 38):
Diplomatic normative content;
At least 2 parties;
May codify international custom:
Examples:
Multilateral conventions (such as Vienna Convention on
Diplomatic Relations of 1961,Vienna Convention on Consular
Relations of 1963, Convention on Special missions of 1969; ..)
Bilateral treaties between States or treaties with IO’s on
the questions of DL.

6.

Sources of DL (3): Sources of DL in Art.
38 of the Statute of the ICJ
II. international custom, as evidence of a general
practice accepted as law (Statute of ICJ,Art. 38):
- 2 elements: objective (i.e. General practice) and subjective
(i.e.Accepted as law, or opinio juris);
- General
practice
=
how
to
identify?
-long
lasting/widespread/universal character;

7.

Sources of DL (4): Sources of DL, listed
in Art. 38 of the Statute of the ICJ
III the general principles of law recognized by civilized
nations;
- The broad nature of “legal principle”
- Nature: generalized national legal principles/general
principles of international law;

8.

Sources of DL (5): Sources of DL, listed
in Art. 38 of the Statute of the ICJ
Subsidiary sources: to fill the gaps or clarify the
content of international law norms
a. judicial decisions and
b. the teachings of the most highly qualified
publicists of the various nations
Note: Decisions of the ICJ binding only for parties, See
Art. 59 of the Statute of the ICJ

9.

Sources of DL (6): Other sources of DL, not listed in
the Statute of the ICJ
2. The resolutions of international organizations (IOs)
if:
2.1. they include the existing norms of diplomatic law; or
2.2. they approve universal international treaties
See the Resolution of General
Assembly No 179 (II) on the coordination of the privileges and
immunities of the United Nations
and of specialized agencies

10.

Sources of DL (7): Other Sources of DL, not
listed in the Statute of ICJ
3. Procedural rules of international conferences (just
some of them have the status of customary rule);
4. Unilateral acts in the context of some specific factual
or legal situations may create legal obligations:
4.1. statements of the head of the state (See ICJ judgment
(1974) in the Nuclear Test case)
4.2. protests (to indicate the state’s negative reaction to the
actions of another state or to stress the illegitimate
nature
of
these
actions):
(e.g.
http://urm.lt/default/en/news/lithuanian-foreign-ministrysends-a-note-of-protest-to-russian-embassy-over-illegalactions-in-detaining-lithuanias-fishing-vessel-)

11.

Sources of DL (9): Other Sources of DL, not
listed in the Statute of ICJ
In the widest sense (because they cannot create, change or
repeal DL norms, just serve for the purpose of
implementation or interpretation) also:
1. National laws (usually on the status of the state’s or
IO’s missions or the functioning of the diplomatic
service)
2. The doctrine of diplomatic law;

12.

IV. State’s institutions for foreign relations
(1)
Regulated by national laws (what bodies are competent
to represent the state and how)
State’s institutions for foreign relations: permanent (e.g.
diplomatic missions, consular post, etc.) and temporary
(e.g. special missions)
1. The Head of the State;
2. Parliament;
3. Government;
4. Ministry for Foreign Relations.
5. Other ministries.

13.

IV. State’s institutions for foreign relations
(3)
The Head of the State:
1. Has the power to represent the State ex officio, so the
actions of the Head of the State are equal to the actions
of the State;
2. Usually
accepts the credentials, appoints the
representatives, negotiates with the heads and other
officials of other States, concludes the treaties (the
concrete powers of the Head of the State depend on
the political regime)

14.

IV. State’s institutions for foreign relations
(4)
Parliaments:
Decide on war/peace issues, territorial questions, ratifies
the int’l treaties, assigns the budget, pass the memoranda
or resolutions...
Usually have permanent commissions for foreign relations;
send delegations, develop inter-parliamentary diplomacy..

15.

IV. State’s institutions for foreign relations
(5)
Governments:
In practice, initiate most important decisions on the
questions of foreign relations;
Ministry of Foreign Affairs:
1. Maintain diplomatic and consular relations with foreign
countries and supervise the activity of the diplomatic
missions and consular post;
Other bodies:
The heads and other officials of different institutions
participate at int’l delegations, special attaches work at
the diplomatic mission)