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Public International Law/Jurisdiction

Author: Sué González Hauck, Max Milas "Required knowledge: History of International Law, States, International Organisations" "Learning objectives: Understanding the histories and functions of jurisdiction; the difference between domestic and international jurisdiction; jurisdiction in specialised fields of international law; how jurisdiction is used as a means of exercising power"

A. Introduction
Jurisdiction assigns an actor the authority to speak in the name of the law. The Latin origin of the word, juris dicere (Latin: 'speaking law'), illustrates this. However, where someone receives a right to speak from a position of authority, others are, at the same time, deprived of it. International law confirms this (dis-)empowering function of jurisdiction. Jurisdiction separates one domestic from another domestic, domestic from international and one international from another international sphere of competence. Jurisdiction entitles states to exercise power within their territory by means of legislative, executive and judicial authority. It can be exercised by the legislative (especially parliaments), executive (especially administrations) and judicial (especially courts) branches. International law reflects this tripartite nature of jurisdiction by distinguishing between jurisdiction to prescribe, jurisdiction to enforce, and jurisdiction to adjudicate. The use of one term, jurisdiction, to describe different demarcations often leads to misunderstandings. However, these are inherent in the breadth - or 'multivalent' nature - of the concept, and thus merely illustrate the relevance of jurisdiction.

As a way of generalizing from all the facets of jurisdiction, jurisdiction describes a triangular relationship between a holder of jurisdiction and therefore authority or entitlement, the share of the world to which this jurisdiction relates (a person, group of people, territory, property, deed, or event), and the creator or source of the jurisdictional entitlement. This chapter examines this triangular relationship, first, by focusing on the historical developments that shaped each side of the triangle as they relate to international law, second, by presenting the rules of international jurisdiction, which mainly authorize the state and relate to the concept of territory, and, third, by shedding some light on varying concepts of community as sources of jurisdictional authorization or entitlement.

B. Historical Origins of Jurisdiction
The notion of jurisdiction that prevails in international law is one of European origin, which has been used to justify the colonialist projects of various European notions. This section offers a brief introduction to the European origins of jurisdiction. It retraces the development and application of the concept of jurisdiction as a tool of formal colonisation and explores present-day implications of this imperial heritage.

I. Origins of Jurisdiction on the European Continent
In the Roman Republic, iuris dictio denoted the function of an official to judge in a matter. The overarching principle defining jurisdiction was the principle of personality. Jurisdiction thus referred both to the personal competence of someone holding an office to decide in a legally binding manner and the capacity of an individual person to invoke, e.g., Roman law. This personality principle necessarily lead to pluralistic legal arrangements, in which an individual person could simultaneously be bound by multiple bodies of rules stemming from different authorities.

The medieval concept of iurisdictio arose from the combination of iuris-dictio (Latin: 'to speak the law') and iuris-ditio (Latin: 'the power of the law'). Generally speaking, iurisdictio meant authority (Latin: 'potestas') rather than a legal concept. This, in turn, was divided into legal power (Latin: 'iurisdictio simplex') and other powers (Latin: 'imperium'). In this respect, the modern concept of jurisdiction is perhaps more similar to the Roman concept than to the medieval one.

The development of the notion of jurisdiction in the 16th and 17th centuries was intimately linked to the development of territorial sovereignty. It was Jean Bodin’s idea of sovereignty as absolute authority over a population that sparked authors like Pierre Ayrault to develop early versions of territorial jurisdiction. Bodin himself, however, did not mention territory in his conception of sovereign authority, which was consistent with an early modern conception of sovereignty as a legal relationship between sovereign and subject.

The parallel development of territorial sovereignty and jurisdiction, however, did not mean that jurisdiction as it developed on the European continent in the 16th and 17th centuries was devoid of personal and religious components. The Spanish and Portuguese concept of jurisdiction in particular were embedded in religious ideas of natural law that distinguished between particular and local forms of worldly jurisdiction on the one hand and universal jurisdiction of the catholic church on the other hand. The Spanish Requirement (Requerimiento) of 1513, sets out this universal religious jurisdiction as follows: ‘[o]f all these nations God our Lord gave charge to one man, called St. Peter, that he should be lord and superior of all the men in the world, that all should obey him, and that he should be the head of the whole human race, wherever men should live, and under whatever law, sect, or belief they should be; and he gave him the world for his kingdom and jurisdiction’.

II. Jurisdiction as a Technology of Colonial Imperialism
The main argument that Spanish conquistadores deployed to justify the subjugation of the indigenous population in the ‘New World’ was the aforementioned universal jurisdiction of the catholic church, which was exercised by the pope.

The concept of jurisdiction in international law was subsequently formed by Alberico Gentili and by Hugo Grotius. Grotius developed the concept of ‘freedom of the seas’ on behalf of the Dutch East India Corporation. The main argument in his work Mare Liberum served to counter British and Spanish claims of exclusivity over the Atlantic and to legally facilitate the economic exploitation of the oceans by the Dutch East India Corporation. The construction of jurisdiction-free spaces thus enabled European colonial powers to pursue their interests unhindered and seemingly legitimized by international law. Similarly, Europeans used the concept of ‘terra nullius’ to legitimize colonial violence.

The development of jurisdiction in the 19th century was marked by increasing formalization, which had two main consequences: First, on the European continent, jurisdiction was now exclusively tied to territory and the plurality of legal sources to which an individual person could refer was reduced to the single source of state jurisdiction defined by territory. Second, formal colonial governments and bureaucracies replaced chartered companies as the protagonists of colonial appropriation, which resulted in the ‘formalization of empire’ and included the imposition of strict territorial boundaries. In the colonies as well as in semi-colonial territories and even territories that were not subject to colonial rule but still subject to Western hegemony, the newly established Western model of exclusive territorial state jurisdiction was defended by dismissing and supplanting non-Western laws as unsystematic.

Even though the Western model of jurisdiction was imposed on colonized territories, jurisdiction in the colonies differed from jurisdiction on the European continent. After all, the colonies were built on inequality and on – at best – relative sovereignty of peoples in the South, whereas jurisdiction on the European continent relied on sovereign equality and non-intervention.

‘To complicate matters, no regime was firmly territorialized under colonial rule such that colonial jurisdictions were total and complete. Colonialism was never monolithic. Even settler-colonies tended to exempt indigenous peoples from European colonial jurisdictions, albeit in an inconsistent manner, resulting in deep practical problems in legal courts. Jurisdiction and territoriality imposed by foreign sovereigns were sometimes recognized by colonial subjects or tacitly accepted, while at other times they were aggressively challenged. Both phenomena of collaboration and resistance would almost always be found in one territory simultaneously. As a result, colonial jurisdictions were, more often than not, precarious right up to the end and beset with practical problems. To add to this, colonial rule often led to many layers of jurisdiction within a single territory resulting in complex jurisdictions which were ordered hierarchically within colonial formulation with European legal orders at the very top. Pluralist configurations in various formats further complicated matters as different groups could jostle over jurisdictional politics’.

‘On the flip side of the coin, extraterritorial jurisdictions in the form of treaty ports, concessions, garrisons, and protectorates could be seen as an extreme manifestation of this scheme of privileges and exceptions. The primary impetus for engaging in extraterritorial negotiations was to protect commercial interests. Extensive commercial contact naturally led to many disputes and Europeans refused to be subjected to non-Western laws. Asymmetry of power is implied in every concessionary arrangement. Extraterritoriality was rightfully deemed to be ‘quintessential legal imperialism’, especially since it was yoked to a scale of civilization’.

C. Territories of Jurisdiction
International law uses the concept of jurisdiction for three key functions. It demarcates domestic jurisdictions from each other, distinguishes domestic jurisdiction from international jurisdiction and separates international jurisdictions from each other. The concept of territory is central to each of these types of demarcations, in the sense that territorial sovereignty is generally presented as the rule and exercising jurisdiction without territory is seen as the exception. Therefore, this section starts with an introduction to the concept of territory before delving into how the existing rules on jurisdiction construe each of the three mentioned types of demarcations.

I. The Concept of Territory
As should have become apparent from the previous section on the historical origins of jurisdiction, the concept of territory is not an inherent elemnt of jurisdiction. Instead, the relationship between jurisdiction and territory is contingent, which means that it is the result of the specific way in which a set of decisions were made in the context of specific social, economic, and political constellations. All of these decisions and constellations could have been different, leading to a different - or entirely absent - relationship between jurisdiction and territory.

Additionally, territory itself is not something that is just naturally 'there'. Given the close connection between territory and physical elements, it may be tempting to reduce territory to a purely physical phenomenon consisting of noting more than a discrete geographical space. Upon closer inspection, however, it becomes apparent that the concept of territory is shaped not by physical but social dimensions. It is a social institution that is constantly shaped and reshaped through cultural, social, and political practices.

Understanding both the contingent nature of territorial jurisdiction and the inherently social nature of territory itself makes it easier to understand the fact that there can be instances of 'jurisdiction without territory', i.e. of exercising jurisdiction without a physical presence. This has historically taken three forms, which still exist in some way today. The first is the direct exercise of extraterritorial jurisdiction by a state, seen in the informal empire created by imperial Western powers through the capitulation or consular regimes in semi-colonies. This can be seen today in agreements such as the State of Forces Agreement signed by the US. The second is the exercise of jurisdiction by private firms, historically seen in chartered companies like the Dutch and the British East India Companies, and now in multinational corporations that construct transnational non-state governance systems where they hold authority. The third is jurisdiction exercised by international organizations, such as the Mandate System of the League of Nations, the Trusteeship system under the United Nations and, in the present, International Territorial Administration.

II. Domestic Jurisdiction
As early as 1928, Max Huber established in his role as arbiter in the Island of Palmas case that “Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the function of a State.” In this respect, jurisdiction is an important component of state sovereignty.

1. Types of Domestic Jurisdiction
Jurisdiction entitles states to exercise power within their territory by means of legislative, executive and judicial authority. In this respect, jurisdiction is an important component of state sovereignty. It can be exercised by the legislative (especially parliaments), executive (especially administrations) and judicial (especially courts) branches. International law reflects this tripartite nature of jurisdiction by distinguishing between jurisdiction to prescribe, jurisdiction to enforce, and jurisdiction to adjudicate. States are free to decide which branch they use to exercise the respective type of jurisdiction.

Prescriptive jurisdiction allows states to stipulate rules that govern the relationship between states, humans, corporations, animals, things and the environment. States may – according to their domestic law – use their legislative, executive, or judicial branches for this purpose. States can enforce these rules issued within the framework of prescriptive jurisdiction coercively by relying on their enforcement jurisdiction. Again, states can rely on all three branches to enforce prescribed rules. States are also free to choose the means for law enforcement within their territory as long as there is no rule of international law to the contrary. Finally, states may also provide for judicial or quasi-judicial procedures for the observance and enforcement of prescribed rules or legal relations between subjects according to their adjudicative jurisdiction. In this way, states can establish procedures for states, people, corporations, animals, things and the environment. International law contains rules that deviate from this basic freedom of states to prescribe, enforce and adjudicate, depending on the area of law and the subjects concerned.

1. Domestic Jurisdiction in Specialized Fields of International Law
Jurisdiction is one of the most important concepts in international law. Therefore, it is not surprising that jurisdiction is closely linked to other core concepts of general international law and is relevant in almost all specialized fields of international law. Jurisdiction derives from state sovereignty and allows states to prescribe, enforce and adjudicate conduct of persons within their territory. In this respect, the three key principles of international law on jurisdiction can be traced back to the three components of statehood: territory, population, and government. Firstly, states can exercise jurisdiction if an act takes place on their territory. Secondly, states can exercise jurisdiction if their nationals act or are affected by an act on or outside their national territory. Thirdly, states can exercise jurisdiction if the act at least affects their effective exercise of state power.

The principles of the law of jurisdiction discussed above shape all fields of international law. However, each field derives specific rules from these principles to address its own particularities. At first glance, this produces a confusing, sometimes contradictory web of jurisdictional concepts. At the same time, the various fields of international law also face differing challenges that can hardly be resolved appropriately through uniform sets of rules. Often, more than one state may exercise jurisdiction in more than one field of international law on the basis of more than one principle. In this respect, the fragmentation of jurisdictional concepts in international law is evidence of “the social complexity of a globalizing world”.

a) Criminal Jurisdiction
In criminal law, five grounds for jurisdiction have developed in the 19th century. These principles appear in other fields of international law as well, but originally apply to the exercise of jurisdiction in criminal matters alone. According to the territorial principle, states may exercise jurisdiction over crimes committed on their territory. This applies both to crimes that are initiated on a state’s own territory but finalized on foreign territory or crimes that are initiated on foreign territory and finalized on a state’s own territory.

From the perspective of jurisdiction, ships and aircrafts are part of the national territory of the flag or registering state and are thus subject to the territorial principle. According to the nationality principle, states my exercise criminal jurisdiction if the offence is committed by one of their citizens. According to the passive personality principle, states may exercise jurisdiction over crimes committed on foreign territory against one of their citizens. According to the protective principle, states may exercise jurisdiction over crimes committed on foreign territory by foreigners if the offence threatens the national security or comparable interests of that state. States of the Global North in particular invoke this principle to penalize “illegal” migration. According to the universal principle, states my exercise criminal jurisdiction even though none of the four principles presented justifies jurisdiction, if the crime affects fundamental interests of the international community. Nowadays, the principle applies in particular to piracy, slavery, genocide, crimes against humanity, war crimes and torture.

These five principles of jurisdiction must be distinguished from the enforcement of international criminal law. The five principles establish the jurisdiction of the state to enforce domestic criminal law, whereas the norms of international criminal law enable the enforcement of international law. These specific grounds of jurisdiction in international criminal law cannot simply be transferred to other specialized fields of international law. Instead, the special rules of the respective field are decisive.

b) Civil Jurisdiction
Compared to criminal jurisdiction, states assume greater discretion for civil jurisdiction. Ultimately, it is up to the respective state to define its civil jurisdiction. This results in differing practices. In common law countries, jurisdiction is often based on the territorial principle. Accordingly, states assert their jurisdiction as soon as a natural person enters the state's territory or a legal person register (parts of) the company on the state's territory. Civil law countries often seek to establish jurisdiction in the state where the defendant resides. Because of these wide possibilities it seems reasonable that states should be free to exercise their civil jurisdiction within the framework of the general rules of jurisdiction of international law.

c) Immunity Law and Jurisdiction
Immunity law determines in which cases states cannot exercise their jurisdiction. In this respect, it reflects the core idea of jurisdiction already described, according to which states may exercise jurisdiction on their territory unless it is prohibited by international law. Immunity law – as jurisdiction itself – serves to protect the sovereign equality of states. Immunities from jurisdiction derive from state immunity, head of state immunity, and diplomatic immunity. State immunity prohibits a state from exercising jurisdiction to enforce and to adjudicate over another state and its property. According to the immunity of heads of states doctrine, “holders of high-ranking office in a State […] enjoy immunities from jurisdiction in other States”. Diplomatic immunity serves to protect the effective exercise of diplomatic functions by prohibiting the receiving states from enforcing laws and adjudicating against the diplomatic missions, the personnel of diplomatic missions, and the archives and communication of diplomatic missions of the sending state.

d) Other Specialized Fields of International Law
Jurisdictional issues are also relevant in other fields of international law. In some cases, customary international law or international treaties prohibit the establishment of sovereignty over a territory (so-called common heritage of humankind), so that no state may exercise territorial jurisdiction. This applies in particular to Antarctica, outer space, and the high seas. In other fields of international law, several states can simultaneously claim jurisdiction over a matter. For example, the Internet enables the exchange of communications and other data across borders. A typical data processing operation begins in one state, ends in another, and often has a global impact. States respond to this part of globalization by relying on the nationality principle, the territoriality principle, or (a broad interpretation of) the protective principle as known from criminal law.

On waters, jurisdictional overlaps may also occur, for example, between the state in which a ship is registered, the state whose citizens are on the ship, and the state in whose waters the ship is navigating. While the first two cases can already be resolved with the general principles of jurisdiction presented in this chapter, modern maritime law divides the waters jurisdiction of states into three geographical zones. The sovereign zone includes the internal waters of a state, the territorial sea and the archipelagic waters of a state. In this zone, a state may exercise its territorial jurisdiction exclusively, although other states have the right of innocent passage. The zone of sovereign rights includes the contiguous zone and the exclusive economic zone. In this zone, a state has the right to explore, exploit, conserve and manage the environment. The territorial jurisdiction therefore lies with the coastal state. However, other states may also use this zone, provided that in doing so they do not interfere with any interests of the coastal state. In the high seas, no state may exercise territorial jurisdiction. The high sea remains territorially unoccupied. Similarly to the maritime jurisdiction, states can also exercise exclusive territorial jurisdiction within the airspace above their territory, which includes territorial waters. Vertically, however, this territorial jurisdiction is limited by customary law on outer space and international treaties granting states the right to fly across the territory of another state.

However, international law employs jurisprudence not only to entitle states. In international environmental law, for example, states have an obligation to ensure that activities within their territory do not cause damage in areas beyond their jurisdiction. In international human rights law, too, jurisdictional clauses in human rights treaties extend state responsibility extraterritorially.

III. International Jurisdiction
While states often claim jurisdiction based on their territory or population, international organizations and courts lack this possibility. Instead, they derive their power to speak from international treaties establishing international organizations. These international sources assign a function to international organizations within which they can act.

Similarly, international courts base their jurisdiction on international treaties establishing them. They also refer to the implied powers doctrine to extend their jurisdiction beyond the wording of the treaty. For some courts, however, especially the ICJ, establishment on the basis of a treaty is not sufficient (ratione personae). Instead, states must additionally consent to the jurisdiction of the court for contentious cases (ratione materiae).

IV. Overlapping Jurisdictions
The principles of the law of jurisdiction discussed above shape all fields of international law. However, each field derives specific rules from these principles to address its own particularities. At first glance, this produces a confusing, sometimes contradictory web of jurisdictional concepts. At the same time, the various fields of international law also face differing challenges that can hardly be resolved appropriately through uniform sets of rules. Often, more than one state may exercise jurisdiction in more than one field of international law on the basis of more than one principle. Similarly, several international organizations and courts often claim jurisdiction over the same matters. In this respect, the fragmentation of jurisdiction in international law is evidence of “the social complexity of a globalizing world”.

Overlapping jurisdictions are therefore to be endured. In general, the underlying facts already lead to an appropriate allocation of jurisdiction. For example, if states wish to exercise their jurisdiction over a person, that person can necessarily only be in the jurisdiction of one state, which means that only that state can effectively exercise jurisdiction. Where this is not the case, states can negotiate, reach agreements, or initiate (quasi-)judicial proceedings to solve jurisdictional conflicts.

D. Politics of Jurisdiction
To understand jurisdiction beyond the purportedly neutral and technical rules, it is necessary to focus on the way in which jurisdictional rules both rely on and shape political communities. To be given the authority to speak in the name of the law means being authorized to speak for the political community constituted and bound by this law and it is this political community that is the source of this authorization.

Conclusion
This chapter presented the doctrinal principles of jurisdiction, which shape almost all aspects of modern international law, within a critical framework informed both by the genealogy of jurisdiction and by an account of the material realities of jurisdiction as a reflection and tool of resource distribution. The chapter began by observing that jurisdiction assigns an actor the authority to speak in the name of the law. By conferring this right on one, it is at the same time denied to others. It is this simultaneously empowering and disenfranchising function of jurisdiction that, in the history of international law, is closely linked to colonial oppression and postcolonial exercise of power, but also to emancipatory movements that have struggled for a right to speak. However, there is nothing to suggest that jurisdiction will not continue to be used for inclusion and exclusion within the international system. A purely neutral, doctrinal perspective on jurisdiction will therefore never be able to capture the full potential of this concept.

Summary

 * Jurisdiction assigns an actor the authority to speak in the name of the law. As a way of generalizing from all the facets of jurisdiction, jurisdiction describes a triangular relationship between a holder of jurisdiction and therefore authority or entitlement, the share of the world to which this jurisdiction relates (a person, group of people, territory, property, deed, or event), and the creator or source of the jurisdictional entitlement.
 * The notion of jurisdiction that prevails in international law is one of European origin, which has been used to justify the colonialist projects of various European notions.
 * Jurisdiction entitles states to exercise power within their territory by means of legislative (jurisdiction to prescribe), executive (jurisdiction to enforce) and judicial (jurisdiction to adjudicate) authority. Jurisdiction derives from state sovereignty and allows states to prescribe, enforce and adjudicate conduct of persons within their territory. In this respect, the three key principles of international law on jurisdiction can be traced back to the three components of statehood: territory, population, and government. While states often claim jurisdiction based on their territory or population, international organizations and courts lack this possibility. Instead, they derive their power to speak from international treaties establishing international organizations.
 * To understand jurisdiction beyond the purportedly neutral and technical rules, it is necessary to focus on the way in which jurisdictional rules both rely on and shape political communities. To be given the authority to speak in the name of the law means being authorized to speak for the political community constituted and bound by this law and it is this political community that is the source of this authorization.

Further Readings

 * Stephen Allen and others (eds), The Oxford Handbook of Jurisdiction in International Law (1st edn, Oxford University Press 2019)
 * Matthew Craven, “What Happened to Unequal Treaties? The Continuities of Informal Empire”, Nordic Journal of International Law, 2005, Vol. 74, No. 3-4, pp. 335-382
 * Daniel S. Margolies, Umut Özsu, Maïa Pal, and Ntina Tzouvala (eds.), The Extraterritoriality of Law: History, Theory, Politics, Abingdon/New York, Routledge, 2019, vii-235 p.
 * Lea Raible, Human rights unbound: a theory of extraterritoriality, Oxford, OUP, 2020, xvi-235p.
 * Nicole Roughan, Authorities. Conflicts, Cooperation and Transnational Legal Theory, Oxford, OUP, 2013, 262 p.
 * Cedric Ryngaert, Jurisdiction in International Law, Oxford, Oxford University Press, 2nd ed., 2015, 235 p.

Further Resources

 * EJIL:The Podcast! Episode 17 – “What’s wrong with the international law on jurisdiction?”
 * Red Notice (Directed by Rawson Marshall Thurber, Netflix 2021)
 * The Mosquito Coast (Directed by Justin Theroux and Rupert Wyatt, Apple TV+ 2021)
 * Stateless (Directed by Emma Freeman and Jocelyn Moorhouse, Netflix 2020)

title: Public International Law/Jurisdiction


text:
Public International Law/State Responsibility

Author: Prof.Walter Arévalo-Ramírez PhD, (with undergraduate Collaborators: Valeria Hernández – Valeria Maldonado U.Rosario (Colombia). Editing and research assistants) Required knowledge: Sources of International Law, Subjects of International Law.

Learning objectives: to understand the regime of state responsibility and the steps to establish the consequences of an international wrongful act

A. introduction
State responsibility for international wrongful acts is a fundamental element of international law, dealing with the consequences of the breach of an international obligation. This chapter analyzes the concept of international wrongful act, and follows the structure proposed by the International Law Commission to invoke State responsibility for an international wrongful act and the elements needed for its invocation, then, the chapter studies the consequences of international responsibility in terms of reparations.

„Responsibility is the necessary corollary of a right. All rights of an international character involve international responsibility. Responsibility results in the duty to make reparation if the obligation in question is not met.“  (Max Huber, Spanish Zone of Morocco (1923))

Since the first half of the 20th century, there has been a growing interest in the development and codification of the principles of international state responsibility, reinforced by the emergence of permanent court and tribunals and the discussions regarding reparations that followed the two world wars. The issue was discussed at the 1930 Hague Codification Conference, but the participating States were unable to reach an agreement on the issue. Later, when in 1948 the UN General Assembly established the ILC, the issue of State responsibility was chosen as one of the first topics to be dealt with by the ILC.

Starting in 1956, the ILC focused the efforts on developing a series of articles on international State responsibility, taking as reference pre-existing international case-law, State practice, and doctrine. Finally, in 2001 the ILC approved the Draft Articles on State Responsibility for Internationally Wrongful Acts (ARSIWA) and submitted the text to the UN General Assembly for consideration. On December 12, 2001, the General Assembly adopted Resolution No. AG / 56/83, taking note of the project and bringing it to the attention of the governments. Today, there is no agreement on the need of negotiating an international convention on international responsibility of States that translates into conventional instrument the customary norms contained in the project. Despite being commonly called "draft" Articles, their substantive content reflects the current state of international law in the matter and they have been widely applied in current case law, for example, the WTO in the case US – AD/ CVD (China) used the ARSIWA articles on attribution of conducts of agents to the state extensively.

Despite the lack of consensus for the adoption of an international convention that reflects the content of the project the norms and principles of international responsibility are frequently applied by international tribunals and courts. Indeed, it is indisputable that several of the articles of the project reflect international custom, while others are considered as progressive development of public international law.

I. The notion of “objective responsibility” in international law
Article 1 of the Draft Articles establishes the general principle of State responsibility for internationally wrongful acts and its elements.

Art. Every internationally wrongful act of a State entails the international responsibility of that State.

The first of these elements is the direct relationship between the wrongful act and international responsibility. This relationship, known as the principle of responsibility, means that whenever there is an internationally wrongful act attributable to a State, there will be international responsibility. This direct relationship between international wrongful act and international responsibility has been classified as a form of objective responsibility in public international law, since it is not mediated by the verification of elements such as negligence, guilt or other elements of subjective responsibility, or other requirements of liability regimes related to domestic law. Secondly, international State responsibility is the set of new legal relationships and obligations that emerge between subjects of international law once an internationally wrongful act is attributed to a State.

The particular content of these possible new obligations consists of the consequences of the wrongful act and varies from case to case. For example, there may be cases where there is international responsibility but there is no damage, since the only thing required for the establishment of responsibility is the breach of an international obligation, as well as there may be cases where there is damage and one or more forms of reparation.

II. Elements of an international wrongful act
An internationally wrongful act is defined by Article 2 of the Draft Articles as a conduct consisting of an act or omission that meets two requirements: (i) it is attributable to a State and (ii) it constitutes a breach of a binding international obligation of a State at that time. The concept of "act" not only covers acts and omissions but was also chosen by the ILC so as not to introduce into the regime of international responsibility concepts such as international "crime" or "offence", which could be confused with concepts of domestic law or international criminal law.

The elements of an international wrongful act can be understood as part of a two-tier test to stablish international responsibility; Step 1: consisting in identifying a) -conduct, consisting of an action or omission, b) -that is attributable to a State, and c)-is a breach of an international obligation of that State; and Step 2: reviewing if the conduct can be justified by the circumstances precluding wrongfulness.

It is fundamental to highlight that "harm" or "damage" are not a constituve element of the notion of an international wrongful act. A breach of a treaty can ocurr without harm (for example, breaching a boundary treaty by an unauthorized movement of troops, without harming the territory of the neighbor State), yet, if all the elements of article 2 are met, there will be international responsibility.

Certain particular regimes can also develop the elements of an international wrongful act for particular purposes, for instance, in Space law, a doctrine of strict liabilty has emerged for dangerous activities in space, as exemplified by Art. 2 1972 Convention on International Liability for Damage Caused by Space Objects.

C. Attribution of international wrongful acts - Criteria of attribution adopted by the ILC
Attribution of conduct to a State implies a legal exercise whereby the conduct of an organ, a person or a group of persons is imputed to the State, in accordance with criteria determined by public international law. Thus, the attribution of conducts to a State implies that, by virtue of certain criteria established by public international law, the State will be considered as the author of an act committed by an organ, a person or a group of persons and the legal consequences of the act will fall on the State, without prejudice to the legal consequences that may also fall on the material author of the act or fact emanating from other regimes.

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In principle, the State is responsible only for wrongful acts of its organs and agents. Except in the cases expressly provided for, the acts of private persons are not attributable to the State under international law. However, not every conduct of organs and agents of the State is imputable to the State. Moreover, in exceptional situations, the State may be held responsible for acts of private persons. Public international law provides for several cases in which the conduct of certain individuals and organs is considered attributable to the State, as explained below.

1. Conduct of organs and agents of a State
Article 4 of the Draft Articles provides that the conduct of any State organ, whatever its position or function within the State, is considered an act of the State. In that sense, the concept of organ extends to any State entity, whether it exercises executive, legislative, judicial, or even commercial functions, at the central, regional, local or even federal government level.

The domestic law of the State plays a fundamental role in establishing whether a given entity constitutes a State organ for the purposes of the State's international responsibility. However, the exercise of attribution of conduct to a State goes beyond what is established by domestic law, so t he conduct of institutions exercising public functions is attributable to the State in cases of exercise of public authority, even if under domestic law such institutions are considered independent or autonomous bodies or enjoy separate legal personality from the State. According to Article 5 of the Draft Articles, the conduct of any person or entity empowered by domestic law of a State to exercise public functions is attributed to the State, as long as the person or entity acts in that capacity. This is a functional criterion, since it refers to the function exercised by the individual or entity, regardless of whether it is structurally considered an organ of the State or not. For example, in the Hyatt case, the authority given by Iran to a non governmental entity to suggest enterprises for expropiation, was considered a element of public authority. Therefore, the State may be held liable for the wrongful conduct of parastatal entities or public, semi-public or even private companies provided that (i) they are empowered by domestic law to exercise certain public or regulatory functions and (ii) the act is related to the exercise of the assigned public or regulatory function, even if under administrative law they are not considered part of the State structure.

Article 6 of the Draft Articles provides that the conduct of an organ of a State in the service of a second State with its consent and acting under its authority and control shall be attributable to the receiving State, as long as the organ is acting in the exercise of public functions of the State at whose disposal it is placed. For example, the Privy Council, a body of advisors to the British monarch, has occasionally acted as a judicial body of last resort at the disposal of several Commonwealth States. In such cases, the decisions of the Privy Council are attributable to the receiving State and not to the United Kingdom, from which the Privy Council originates.

In any of the cases envisaged above, the conduct will be equally attributable to the State even if the person, organ or entity has exceeded its competence or contravened its instructions or the domestic law of the State. Thus, Article 7 of the Draft Articles provides that to the extent that the organ, person or entity has acted in its official capacity, the State may not invoke the alleged violation of its instructions or the improper, illegitimate or excessive exercise of public functions as circumstances for interrupting the link of attribution of the conduct to a State. However, if the conduct of the organ, person or entity is totally outside its official functions, i.e., ultra vires, such conduct will not be attributable to the State.

2. Conduct of de facto organs of a State
Article 8 of the Draft Articles provides for a control criterion according to which the conduct of a person or group of persons acting on the instructions or under the direction or control of the State is a de facto organ of a State. Their behavior is considered attributable to the State even though from an administrative point of view it is not an organ within its official structure.

For example, in the case of an armed conflict, the internationally wrongful act of a paramilitary group fighting against government armed forces may give rise to the international responsibility of a third State if the group acts under its control. Similarly, the semi-public or even private companies may be attributable to the State when they act on the instructions or under the control of the State. The mere ownership of an enterprise by the State does not necessarily imply that the acts of the enterprise are attributable to the State, except in cases where the enterprise has exercised public powers, in accordance with Article 5 of the Draft Articles.

Several criteria regarding the threshold of control needed to attribute conduct of private entities to a State have emerged from the practice of international courts and tribunals: while the ICJ has developed a strict notion of "effective control" in the Paramilitary Activities case, the ICTY developed an overall criteria in Tadic that did not required direct, effective knowledge or control of every act committed by the entity and the direction of its goals.

3. attribution in the absence of State bodies.

Article 9 of the Draft provides for the case in which, exceptionally, due to a revolution, armed conflict or foreign occupation, the regular state organs are absent or prevented from acting. In such a case, the conduct of persons or groups of persons exercising public functions shall be attributable to the State.

Article 10 of the Draft Articles provides that if an insurrectional movement succeeds in becoming the new government of a State, its conduct shall be attributable to that State. Furthermore, should the insurrectional movement succeed in establishing a new State, its conduct shall be attributable to the new State. If the insurrectional movement fails in taking over the government of the State or in creating a new State, its acts shall not be attributable to the State, without prejudice to other criteria of attribution under the Draft Articles, for instance, if the insurrectional movement acts under the control of a third State under Article 8 of the Draft Articles.

Article 11 of the Draft provides for a residual criterion, according to which the conduct of a person or entity that is explicitly or implicitly recognized and adopted by the State as its own shall be attributable to the State, even if none of the above-mentioned criteria of attribution is met. Therefore, the attribution of the conduct to the State will be ex post facto, i.e., it will be determined by a subsequent act of the State recognizing or adopting such conduct as its own.

4. Responsibility of a State in connection with the act of another State
In principle, each State is responsible for any act or omission attributable to it in accordance with the rules of attribution set out above and constituting a breach of an international obligation of the State. Nonetheless, the Draft Articles provides for three exceptional situations in which a State is held vicariously responsible for an internationally wrongful act committed by another State, without prejudice to the international responsibility of the State committing the wrongful act.

First, Article 16 of the Draft Articles provides that a State which aids or assists another State in the commission of an internationally wrongful act is internationally responsible to the extent that it has contributed to the commission of the wrongful act, provided that (i) the State has knowledge that its aid or assistance will contribute to the commission of an internationally wrongful act, (ii) the aid or assistance is given with the intent to facilitate the commission of the wrongful act, and (iii) the assisting State is also bound by the obligation breached, so that the conduct of the assisted State would have been equally wrongful had it been committed directly by the assisting State.

Secondly, under Article 17 of the Draft, a State directing and controlling another State in the commission of an internationally wrongful act is internationally responsible, provided that (i) the controlling State has knowledge of the wrongful character of the acts, and (ii) the controlling State is also bound by the obligation breached. For example, in case of military occupation where the organs of the occupied State act under the direction and control of the occupying State, the occupying State is vicariously liable, without prejudice to the direct responsibility of the occupied State.

Finally, Article 18 provides for the responsibility of a State which coerces another State to commit an internationally wrongful act, that is, which exercises force or violence against another State in order to cause the coerced State to breach an international obligation towards a third State. The coercing State shall be held solely responsible towards the third State provided that it acted with knowledge of the circumstances of the wrongful act and that, but for the coercion, the act would have constituted an internationally wrongful act of the coerced State.

D. Circumstances precluding wrongfulness - Criteria and circumstances recognized by the ILC
The regime of international responsibility of the State recognizes six circumstances precluding wrongfulness, as occurs in different regimes of legal responsibility at the domestic law level, which recognize certain circumstances in which the breach of an obligation is excused and some of the consequences of such breach are avoided. The circumstances precluding wrongfulness are of general application, i.e., they apply to obligations arising from any source of public international law, such as treaties, custom, unilateral acts, among others.

Secondly, the circumstances precluding wrongfulness under public international law only exclude the wrongfulness of the act but are not exemptions from responsibility. This implies that they do not exempt the State from the obligation to repair the damages caused by the conduct that would have been unlawful if the circumstances precluding wrongfulness had not arisen, nor do they destroy the existence and continuity of the international obligation, to which the State covered by the cause must return as soon as possible.

1. Consent
Article 20 of the Draft Articles provides that a State may obtain the consent of another State to conduct which, in the absence of such permission, would constitute a wrongful act in breach of an international obligation binding upon them. In order to be valid, consent must be given by State authorities who are in a position to represent the State and bind it internationally.

Consent is not required to be given through an instrument as the one where the principal obligation arises, such as a treaty, and may extend both before and during the occurrence of the allegedly wrongful conduct. The limits of the consent granted by the State must be respected. Otherwise, independent wrongful acts will be established. For example, in the case of a permit to cross the airspace to attend to a specific situation, if unauthorized overflights were to take place subsequently, each of these would constitute an autonomous wrongful act.

2. Self-defense
Pursuant Article 2.4 of the UN Charter, States have the inherent right to self-defense. Article 21 of the Draft Articles provides the exclusion of wrongfulness if a State breaches its international obligations in the exercise of an act of self-defense, whether against the State from which it is repelling an attack, or against third States.

Self-defense as a circumstances precluding wrongfulness has certain limits. On the one hand, for the circumstance to be valid, both with respect to the attacking State and with respect to third States, the State invoking it must comply with all the substantive and procedural elements described in the UN Charter on self-defense and the general prohibition of the use of force, for example, temporality, proportionality, and participation of the Security Council. Likewise, acts carried out in the context of self-defense must respect international humanitarian law.

3. Countermeasures
Countermeasures are reactive actions against a State's wrongful conduct, which seek to compel it to return to compliance with a breached obligation. They consist of measures that seek to have a sufficient effect on the State that has breached an obligation, so that it ceases its non-compliance. In the choice of these measures, obligations in force between the two States in question may be breached. As such, they have been described as legal reprisals or misnamed "sanctions" in some proceedings.

However, Article 22 of the Draft Articles recognizes countermeasures as circumstances for exclusion of wrongfulness, if they meet the requirements of public international law for countermeasures as actions seeking the cessation of another State's breach. Therefore, by making the measure a lawful countermeasure, the wrongfulness of the act is excluded as long as it complies with some elements established by jurisprudence and doctrine, such as the need to be proportional, temporary and to be lifted once the breach has ceased, that they do not constitute measures of armed force and that they are reversible in nature. This measures usually take the form of retorsion measures, as lawful acts to put pressure; example: recalling of ambassadors; travel bans). They can also be presented in the form of Reprisals or Sanctions, either individual or collective (Art. 22 ARSIWA) and must be implemented within limits of UN Charter (prohibition on use of force), and must abide to the criteria of proportionality and not being no punitive character (as is the case with economic countermeasures)

4. Force Majeure
Force majeure is characterized especially by the presence of an invincible, uncontrollable, and involuntary element that compels the State to perform a conduct that is contrary to what is required of it by an international obligation. Article 23 of the Draft Articles, by recognizing an "irresistible force" or an "unforeseen event" beyond the control of the State as circumstances of force majeure, accepts that both natural and human-made causes may constitute circumstances of force majeure, such as an avalanche, an earthquake, or an armed attack on a portion of the territory.

These circumstances, apart from being unforeseeable (or difficult to foresee or avoid) must create a situation where it is materially impossible to perform an international obligation, and not only make its performance more difficult. A circumstance where the State invoking it has directly contributed to the existence of the circumstance will not be admissible as force majeure. Nor does it exempt from the damage generated by the action, it only exempts from its wrongfulness, such as the damage caused by the ships of a State that are dragged to a foreign port by an irresistible storm.

5. Distress
In the case of distress, Article 24 of the Draft Articles recognizes the voluntary and conscious action of an individual attributable to a State who decides to take a measure contrary to an obligation of public international law to save its life or that of others in a situation of maximum danger and urgency. The circumstance has been mostly invoked in cases of ships and aircrafts that, in the face of mechanical failures or meteorological threats, enter the territory of another State without permission seeking shelter from the weather or other emergencies that threaten the loss of the ship and the lives on board. The circumstance of distress cannot be invoked if the measure taken to safeguard the lives of the persons on board generates a greater danger. Likewise, the circumstance of distress is invalidated if the situation of distress is the result of the negligence of the State, such as the lack of aircraft maintenance.

6. Necessity
Article 25 of the Draft Articles provides that necessity may not be invoked unless the act from which wrongfulness is sought to be excluded (i) is the only way for the State to safeguard an essential interest against a grave and imminent peril and (ii) does not seriously affect an essential interest of another State. This is the only circumstance identified by the ILC that begins with a prohibition on its invocation. This is due to the delicate legal and political consequences of the indeterminacy of the concept "essential interest of the State" at the heart of the circumstance, as a reason of State interest that justifies it to breach international obligations.

The above examples demonstrate the difficulty of establishing what is a valid essential interest. In the case of a recent economic crisis in Argentina, resolving the claims of different foreign investors against the State, some arbitral tribunals admitted and at the same time others rejected that Argentina invoked that an essential interest of the State was its economic stability and, based on it, took measures that violated a series of obligations regarding the protection of foreign investment in the face of a very serious economic and financial crisis.

In view of this difficulty, the circumstance recognized in Article 25 of the Draft Article is initially considered as prohibited, unless the measure is the only one possible to "safeguard an essential interest" from a grave and imminent danger.

E. Invocation of State responsibility
The international responsibility of a State arises when the conditions analyzed above are met, independently of the conduct of the injured State or any other State. However, to give effect to such responsibility, it must be invoked by the injured State or another subject of PIL entitled to that effect. The invocation of a breach, depending if the obligation emanates, for example, from bilateral or multilateral obligation, and the “standing” of different States, is described in article 42 of the Draft Articles, giving the right to invoke responsibility to the affected State.

The international responsibility of the State produces a series of legal consequences, including the obligation of the responsible State to make reparation for the damage caused. Below we will explain the ways of invoking the international responsibility of the State and its consequences."Article 42: Invocation of responsibility by an injured State A State is entitled as an injured State to invoke the responsibility of another State if the obligation breached is owed to: (a) That State individually; or (b) A group of States including that State, or the international community as a whole, and the breach of the obligation: (i) Specially affects that State; or (ii) Is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation."

F. Consequences of State responsibility and Reparations
Article 28 of the Draft Articles reflects the general principle that an internationally wrongful act produces legal consequences. The responsible State will be subject to several obligations provided for in the Draft Articles, without prejudice to the legal consequences provided for under other regimes, e.g., in case of a serious breach of a treaty, the injured State will be entitled to terminate or suspend the Treaty.

The main legal consequence is the obligation of the responsible State to make full reparation for the damage caused by the wrongful act, as will be explained in the next section.

Furthermore, Article 30 of the Draft provides two additional obligations of the responsible State:

 * First, the responsible State must cease its wrongful conduct. The obligation to cease the wrongful conduct will arise only if the wrongful act is of a continuing or composite nature and the breached norm remains in force despite its violation by the responsible State. Second, the responsible State may be obliged to provide adequate assurances and guarantees of non-repetition of its wrongful conduct when this is deemed necessary for the purpose of restoring confidence between the parties and preventing future violations. Unlike the obligations to make reparation and to cease the wrongful conduct, the obligation to provide assurances of non-repetition will arise only in exceptional situations considering the rank of the obligation breached, the gravity of the breach and the risk that the responsible State will again incur in the breach of the obligation.
 * The flagrant or systematic violation of a norm of ius cogens, for instance in case of genocide or torture, will give rise to obligations for the international community as a whole, without prejudice to the specific obligations of reparation, cessation and provision of guarantees of non-repetition imposed on the responsible State. Article 41 of the Draft Articles provides for the obligation of all States (i) to cooperate in order to put an end to the violation, either within the framework of the UN or through any other lawful means. (ii) not to recognize as lawful situations resulting from the violation, and (iii) not to give aid or assistance to the responsible State to maintain the situation of non-compliance.

If the international responsibility of the State is established, apart from the continuity of the obligation, cessation, non-repetition, and the possibility of sanctions according to the applicable primary norm, Articles 31 and 34 of the ILC Draft provide for the State to make full reparation for the damages caused by its wrongful act, including both material and moral damages and interest.

In public international law, international tribunals, such as the PCIJ, PCA, the ICJ or the IACHR, have reiterated that reparation of the damage is carried out under the principle of restitutio in integrum or integral reparation of the damage, enunciated by the ICJ in the case of the Chorzów Factory. According to this principle, the possibility that the reparation exceeds the damage and may have punitive, sanctioning or preventive functions, as occurs with the torts regime in common law, is excluded.

The forms of reparation admitted in matters of international responsibility are (i) restitution, (ii) compensation and (iii) satisfaction, which may be given in a single or combined form. Some specific treaties and particular jurisdictions, for example, regional human rights systems may require that the forms of reparation be given concomitantly in the face of serious human rights violations in order to achieve, in the specific case, true restitutio in integrum.

1. Restitution
The first measure of reparation to be adopted by the responsible State, enshrined in Article 25 of the Draft Articles, is restitution, understood as the reestablishment of the previous situation or status quo ante, that is, the return to the situation as it was before the internationally wrongful act happened. The basis of restitution is the effort to be made by the State that commits a wrongful act to erase the consequences of its behavior and to try to bring the injured State to a situation as close and materially as possible to the moment prior to the wrongful behavior. Usually, it takes the form of a material conduct such as the release of persons illegally detained, the return of property, the reversal of a judicial decision or a legal norm that violates an international obligation, the withdrawal of troops, etc. Restitution as a path within reparation is not indispensable in cases where it is materially impossible to return to previous circumstances.

2. Compensation
If restitution is not possible, Article 36 provides compensation as another way of redressing an injury caused by an internationally wrongful act. Compensation corresponds to the payment of any damage that is susceptible of financial assessment, including loss of profits insofar as proven. International jurisprudence has repeatedly held that a court that has jurisdiction to declare the international responsibility for a wrongful act has jurisdiction to produce a judgment fixing the amount of compensation or indemnification, unless otherwise agreed by the parties. The practice of the tribunals has not only recognized compensation to pay for damages caused to the property of a State, but has also recognized compensation for environmental damage violations of investment regimes, loss of profits and injuries to individuals. Regularly, the value of compensation corresponds to an average of the market cost of the affected assets, taking into account whether the damage is total or partial. Likewise, loss of profit has generally been predicated on assets whose nature is the production of wealth, such as industries, infrastructure works, merchant ships, investments, etc. It has also been recognized that some incidental measures taken by the affected State to mitigate the damage may be subject to compensation.

3. Satisfaction
Exceptionally, Article 37 of the Draft Articles provides that when some type of damage with special characteristics has not been repaired through restitution or is not susceptible of financial evaluation, the responsible State must resort to satisfaction to achieve full reparation of the damage caused.

Satisfaction responds directly to the moral damages not susceptible of financial evaluation that the affected party may suffer, which according to the literature have been called in some cases affronts or offenses to the State or to other subjects, damages of a symbolic nature. These damages may or may not derive from damages that are susceptible to financial assessment, for example, the attack on a flagship warship and property of the State, may in turn be considered an offense to a national symbol, not only the material damage to a vessel. They may also arise from affronts to national symbols such as the flag, invasion of territory or mistreatment of the head of state.

Among the forms of satisfaction in international responsibility of the State are the express acknowledgment of the act, public apologies, diplomatic notes, reestablishment of diplomatic relations and expressions of regret by the Head of State. In more particular scenarios, more complex forms of satisfaction have been developed to repair wrongful acts relating to serious human rights violations such as the experience of the IACHR which has ordered the construction of monuments the installation of plaques in public places, the publication of sentences or personal apologies by an agent of the State to those directly affected. For example, the IACHR has ordered the creation of memorials, plaques, street names, national days, and other measures of satisfaction in the Molina Theissen case, 19 Merchants case , Gómez Paquiyauri Brothers case , Plan de Sánchez Massacre case , and many others within its varied jurisprudence on reparations.

Further Readings

 * Michael Feit, “Responsibility of the State under International Law for the Breach of Contract Committed by a State-Owned Entity”. Berkeley Journal of International Law 28, nº 1 (2010)
 * Shelton, Dinah. "Righting wrongs: reparations in the articles on state responsibility." American Journal of International Law96.4 (2002): 833-856.
 * Arevalo Ramirez, Walter; Rousset, Andrés. “Inter-American Commission on Human Rights (IACHR) and Inter-American Court of Human Rights (IACtHR).” In Oxford Bibliographies in International Law. Ed. Tony Carty. New York: Oxford University Press. (2021)

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text:
Public International Law/Diplomatic Relations

Authors: Walter Arévalo. (  Research contributors: Gabriel Concha, Valentina Garzon)  Required knowledge: Subjects of International Law.

Learning objectives: Understanding the background, functions, privileges and immunities surrounding diplomatic relations.

A. Background
The role of diplomatic relations has fluctuated between periods of history. In the classic age of diplomacy, it was a tool for bilateral relations and was not part of public international law. The role that it was given was merely based on techniques (negotiation, representation) designed to achieve its main objective: establish political relations between States, always protecting its national interests.

In the contemporary age of diplomacy, diplomats not only have to achieve the objective and roles set in the classic era, but also have to establish relations that transcend the realm of politics (including cultural, economic and scientific relations). In doing so, diplomats should foment friendly relations between nations and citizens, often called "Public Diplomacy".

Diplomatic relations have also evolved with the emergence of international organizations. They have changed the way States interact, turning international relations from bilateral to multilateral settings, leaving behind the secrecy of diplomacy that was usual during the Cold War. Also, the advances in communications mean new possibilities for the creation of conferences, summits, and other multilateral forms of diplomacy.

Diplomatic relations should not be confused with foreign policy. Foreign policy usually refers broadly to the policy and decisions taken by the State in matters of its international relations while diplomacy is a particular tool and a set of practices by which the State, represented by the government, executes its foreign policy overseas and other goals, such as the protection of its nationals abroad. Moreover, foreign policy includes the decisional processes by which States adopt their position over foreign issues regarding their national interests. It is adjusted depending on official governmental positions, needs and global contexts. Meanwhile, diplomacy tends to focus on the study of the permanent relations and the practices of representation and interaction between States.

B. Diplomatic relations and Diplomatic missions
The concept diplomatic relations refers broadly to the ways a State interacts with other subjects of international law and other members of the international community, including international organizations.

Different levels of diplomatic missions are envisaged to achieve different goals. For instance, embassies are the official representation of one State in the territory of another, usually offering political representation but also services for citizens abroad. Between associations of States, such as the Commonwealth, a permanent representation of a member State in the territory of another member State is fulfilled under a High Commission. A Permanent Mission, on the other hand is usually the name given to the permanent representation of a State before the governing body of an International Organization at the city in which it takes seat.

States have the right to entertain diplomatic relations and to end them as a manifestation of their sovereignty. Usually, after an unilateral act of recognition, States begin diplomatic relations under the principle of reciprocity. Each State may, at any moment, finalise its diplomatic relations with another as there is no international obligation to maintain relations. Even if, from an international relations point of view the act of ending diplomatic relations may not be seen with good eyes, the ending of said relations itself is not considered a breach of international law. Political crises may lead States to promptly ending or suspending diplomatic relations, that can be reinstated quickly by both governments if an agreement is achieved.

I. Functions of a Diplomatic Mission
Diplomatic missions have as main functions:

 * 1) Representations and protection of state´s citizens abroad
 * 2) Communication and political representation between the sending State and the receiving state
 * 3) Encouraging and enhancing relations between citizens of both States.

In addition, some diplomatic missions may include consular services. Although consular missions are not diplomatic mission per se, in practice States tend to merge these functions in the same mission to reduce costs.

II. Members of Diplomatic Missions
As previously stated, diplomatic missions are composed of civil servants and State representatives holding different status before the receiving State. These statuses include members with diplomatic status, privileges and immunities such as the ambassador, secretaries,and diplomatic aggregates. Consequently, all the remaining administrative staff do not have diplomatic rank and their relation with the embassy is governed by a labor regime.

Article 8 of the Vienna Convention on Diplomatic Relations provides that the general rule is that members of a diplomatic mission must have the nationality of the sending State. Furthermore, they also ought to have a diplomatic passport, which specifies the rank they hold and the mission they are attending. Also, if there is any change in the category of a staff member, it has to be informed by the Ministry of Foreign Affairs of the sending State to its pair in the receiving State.

The members of the Service Staff are in the domestic service of the mission. Usually, they are not citizens of the state where the mission is being held, but they get a permit to stay in the receiving state regularly for a period no longer than five years and the sending state has to inform them of the position and functions that they are going to perform.

It is common practice that the personnel for technical issues (maintenance, construction or repair work) cannot stay for more than 6 months, in case of the need to extend that time, the sending State must explain the reason behind the decision. The State must address what type of work is being done and how longer is going to take to finish it.

The immunities usually granted to the State representative can be extended to the service staff. The Vienna Convention of Diplomatic Relations specifies it:

 * Diplomatic agents and dependent family members (spouses and children under the age of 21 years old)  (Article 31 and 37 respectively)
 * Administrative and technical staff on the mission and household family members (Article 37 paragraph 2)
 * Members of the service staff of the Mission, who are not nationals of or permanently resident in the receiving state when performing acts in the course of their duties (Article 37 paragraph 3)

However, diplomatic immunity does not allow the disobedience of the law in the receiving state. People with diplomatic immunity still have to comply with private financial obligations. In serious criminal acts, the receiving state may ask for permission to the sending state to remove the diplomatic immunity. Also, the difference betweens acts iure imperii and acts iure gestionis implies differences in the regime of immunities applicable to acts related to the mission and private acts.

III. Naming and agreement of the diplomatic staff
First and foremost, the main process of naming is the one regarding the head of the mission and key personnel. Ambassadors are the head of the diplomatic mission in the receiving state. For being the head of the mission there are four main steps to be taken into account. First, the sending state selects the person to be named. Afterwards, the hosting state must accept such ambassadors. If the State does not agree to such naming it may reject the proposal without the need of justifying its reasons. Once there is an approval by the receiving state, the ambassador is accredited. This decision shall be notified to the chancellor or head of state.

On the other hand most of the diplomatic mission´s staff does not need to go through a naming process as they will not have the actual political representation of the sending State in the receiving State. In consequence, each state may designate the staff without the need for consent from the hosting state.

IV. Ending and revocation
All diplomatic staff ends their tenure with its revocation. Said process is done by the will of each sending State. Yet, in cases in which the receiving State declares someone from the diplomatic staff as persona non grata, there is an obligation to retire that person from the mission. It is important to note that these declarations may be done to all the staff of the mission, including non-diplomatic members. These types of declarations are done without the need to justify their reasons, and, as the ending of diplomatic relations can be done at any time. Although it is not an obligation. The declaration of a member of the diplomatic mission as persona non grata, usually is meet with the application of the principle of reciprocity.

C. Differences with consular relations
Diplomatic relations usually give way to consular relations but are not the same. The latter can exist without the first one. Consular relations are technical and administrative relations aimed to procure the rights of citizens abroad. These are regulated by a mixed regime: public international law and domestic law. Consular relations, similarly to diplomatic relations, are born from a mutual agreement between the recipient state and the sending state. There’s also a set of different conventions for one and other: the Vienna Convention for Diplomatic Relations (1961) and the Vienna Convention for Consular Relations (1963).

The objectives and roles of the consular relations are extensive, among which we can cite some examples:

1.) Protection and promotion of the already existing commercial relations between the two states.

2.) Ships, aircraft and crews assistance.

3.) provision of services to the citizens of the state they represent and

4.) notarial and administrative duties both for the citizens of the state they represent in the recipient country and the citizens on which is located the consular relation (Article 5 of the VCCR) (i.e Visas, Electoral support abroad)

There are two types of consuls: career and honorary consuls (Article 1 paragraph 2 VCCR). Career consuls usually perform all the available consulary tasks, and are nationals of the sending State. Honorary consuls do not perform all these tasks and are usually nationals of the recipient country.

A consul can only be named after there is an agreement with the sending country which is basically an authorization of the sending State and with the expedition of an acceptance which is the authorization of the recipient State.

D. Vienna Convention on Diplomatic Relations of 1961
The Vienna Convention of 1961 regarding diplomatic relations (VCDR) is the main instrument that regulates diplomatic law. Before the Convention, diplomatic relations were managed only by customary international law. The United Nations ILC, formed in 1949 under the goals of the Sixth (legal) Committee of the United Nations General Assembly, was engaged in the preparatory works for an instrument that would later become the Vienna Convention on Diplomatic Relations (VCDR). The Convention, which today reflects and develops customary law, includes the functions of diplomatic missions, their rights, privileges, and obligations of both sending and hosting states.

History of the Convention

Diplomatic relations have a history way back in time. Greeks and Indians conceived certain types of prerogative to envoys. With time, ancient cultures develop a different relationship. Instead of seeing as peers between one another, desire for conquest and territory ended this proto-diplomatic relations. It was not until the Renaissance when the protection of envoys returned. As many other issues in international law, Westphalia marks a milestone. As sovereignty was being discussed, delegations from all countries started to gain protection against civil jurisdiction. Since that moment it became a standard practice and later develop into customary international law recorded, among others, by Huge Grotius.

Although customary law was the main source of diplomatic relations regulation, by 1815 there was a first attempt to codify diplomatic law, at the Congress of Vienna. There, certain rules of diplomatic relations were enacted. These rules included those regarding the head of mission. Other aspects discussed in the congress were the ones regarding ceremonial honors.Moreover, in 1928 during a Pan American Union meeting the Havana Convention included a series of rules regarding immunities. Later in 1931 the Harvard Research Draft Convention brought new ideas to codify diplomatic law.

With the beginning of the United Nations era and the works of the International Law Commission, the need for codifying diplomatic law was born. In 1952 Yugoslavia introduced the need for the convention and so, after being discussed in the Sixth Committee and the GA, the ILC was commissioned to unify the rules where there was not a clear and unified understanding. Some examples are the privileges and immunities of the junior staff and other progressive development issues that were not already addressed in customary law. In that context the VCDR was seeing its first steps. Mr. Sandstrom was appointed as special reporter so that he will produce a report to be presented to the Commission. Such a report was presented in 1957 and was open to comments from different parties. 21 participated in the commission and in 1958 the ILC presented a draft. Finally in 1961 at the city of Vienna the UN conference was held. 81 states participated and 18 April of 191 the Convention was aopted.

During the discussion at the conference one of the main concerns were communications. Until then it was understood between the states the right of freedom of communications. Nevertheless, new technology such as wireless communication was controversial. It was so due to the fact that only certain states had access to this technology while less developed countries struggled to develop in the field. In addition, fears of broadcastings from an embassy to the local population was presented as problematic during the discussion. However, after agreeing to make a respectful use of the electromagnetic spaces and search for governmental permission the controversy was resolved. Other big discussions were those of the inviolability of the diplomatic pouch and the extent of administrative and technical staff.

Key Provisions

Inviolability of missions

VCDR establishes in  article 22 the inviolability of the diplomatic mission. Such obligation implies that inspections, registers or other types of these acts are strictly prohibited. However, article 22 lacks regulation regarding extreme cases of force majeure in. Not only do the obligations from article 22 imply the hosting state to abstain from the use of force in the diplomatic mission, but also to guarantee the safety and well-being of the mission. This includes the obligation preventing public demonstrations in the vicinity of the mission that may be disrespectful to the State.

A historical example of this situation is the 1984 storming of the Libyan Embassy in the United Kingdom. In that case, armed subjects fired against civilians on the street from within the Libyan Embassy. As police should respect the inviolability of the mission there was no way to act against the fire. Nevertheless, the response of the government was to end diplomatic relations with Libya.

Protection of documents

According to article 24, the inviolability of the embassy not only refers to the physical infrastructure of the mission but also the documents inside it. Such protection includes all the necessary documents that assure the operation of the mission.

Freedom of action

Taking into account article 25, a diplomatic mission must have all the freedom to fulfill its mission. That means the hosting state should not impose obstacles that may affect the functions of the diplomatic mission. Examples of that may be granted freedom of circulation and free access to citizens of the receiving state, as part of its main functions. Not the same is applied to the citizens of the hosting state, in the sense that it is not an obligation to grant that access.

Diplomatic pouch

All the diplomatic mail and communication between the mission and the sending state is protected by article 27 of the Convention. Once the state identifies the mail as diplomatic mail it is completely prohibited to open it. Yet, the mail must contain material to fulfill the diplomatic objective. If there is a situation which requires the violation of this protection it could only be done with the agreement of the receiving state.

There exists a debate on whether certain situations may grant the hosting state the exercise of an inspection. Back in 1984 a Nigerian minister was kidnapped in the Nigerian embassy and sent in a box marked as diplomatic mail. British authorities noticed a strange situation with the box and so had to contact Nigerian authorities to open the box.

Controversies arise about the question of whether methods like X-rays and scans infringe the obligation of article 27. It is well understood that, as such examinations do not open the mail nor make a document readable, are permitted.

Treatment of families and junior staff

Regarding families, members of a diplomatic household may be granted immunity when they are not nationals of the receiving state.

Articles 29 and 31 include the regime of protection for the diplomats. Those articles established the immunity from the civil and criminal jurisdiction of the receiving state. Nevertheless, according to article 32, sending states may revoke and waive immunities and privileges.

Other privileges are for example the ones included in article 35, which exempts from taxes of the diplomat staff related to their functions, and article 36, regarding exemptions of customs duties.

Other privileges and immunities

The article 31 of the Convention grants diplomats with civil and administrative immunity. It also prohibits the obligation for diplomats to testify, nonetheless, this right does not grant diplomats with absolute immunity given the fact that the same article declares that diplomats are still responsible by the jurisdiction of the sending state.

Exceptions

There are some exceptions to this articlethat can be found in the paragraph a, b and c of the same article. The exceptions are the following:

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

Art 32

A sending State may waive the immunity of its staff sent whenever necessary. For that effect, waiver must be expressed. In the same way, it must explain the scope of the waiver as it is not understood as a complete relinquishment of the immunity.

If a diplomat starts an action, any counterclaim is out of the scope of the immunity.

Art 39

This article refers to the beginning and termination of diplomatic immunity. The benefits shall begin from the arrival of the diplomat to the receiving country or when the designation is given. Immunity ceases when the mission ends, or the day where both countries decide upon. However, immunity shall still apply to the activities that are required for the mission.

In the case of the diplomatic death, their family still has immunity until the expiration of a reasonable term for them to return to the sending country.

Art 40

If diplomats have to travel from the receiving state to another based on the objectives of the mission, the third state has to guarantee that the diplomat still has the immunities of the receiving state.

Art 41

The diplomats must abstain from interfering with internal issues and all the oficial matters of the mission must be dealt with the foreign affairs ministry or the ministry that was negotiated among states.

E. Differences between diplomatic immunity and the immunity of international organizations
Background

As said before, diplomatic relations originate from customary law, Not the same happens with the immunity of international organizations which emerges from the constituent treaty of the organization. The tailor base approach for each scenario will determine what is the regime applicable between the hosting state and the each IO and so, it may not be extended universally.

Differences

One of the main differences regarding IO and diplomatic relations is nothing but the fact that IO does not have its own territory. The lack of territory implies that IO's are always in the territory of a hosting state and so, often exposed to local authorities. In that context, the need for immunity and protection is much broader in order to guarantee their independence.

Another difference can be seen in the sources of the immunity of its staff. While in diplomatic relations the staff finds their immunity depending on the nationality (nationals of the sending State are usually protected by immunity and nationals from the receiving State working in the Embassy are not), in IOs the link will depend on the functional relation. Since IO's dont have population, they usually constitute their staff with nationals of their member states and the host state, these individuals can be covered by privileges and immunities, despite of their nationality, depending on what is agreed in the constitutive treaty or seat agreement as functional immunities needed for the object and purpose of the organization.

Regarding the jurisdictional process, let's recall that in diplomatic immunity, the individuals shall be processed in its home state as immunity is not a synonym for impunity. In the IO immunity, as there is no link of national origin, the same IO is the one in charge of studying the case. The inherent powers of the IO empowers it to constitute its own tribunals and mechanisms to decide a dispute.

Another key aspect that differs from diplomatic relations is the accreditation. While diplomatic missions need to have an exchange of instruments that name a head of mission and a protocol, the immunity of the IO staff depends exclusively on the agreement inside the Headquarters Agreement.

Further Readings

 * Arevalo-Ramirez, Walter, and Ricardo Abello-Galvis. "The immunity of international organizations in labour disputes. developments before international tribunals, national courts and the colombian jurisdiction." Braz. J. Int'l L. 18 (2021): 137.