Detailed Study Notes for Unit III

Unit-III: Position of Individuals, Nationality, Extradition, Asylum, Diplomacy & Treaties

1. Position of Individuals in International Law

Traditional View: Historically, international law was viewed strictly as a system governing relations exclusively between sovereign states. Individuals were merely objects, not subjects, of international law and could not directly bring claims before international tribunals.
Modern Transformation: In contemporary international law, the status of individuals has undergone a revolutionary shift:
- Direct International Rights: Human rights treaties (e.g., Universal Declaration of Human Rights, International Covenant on Civil and Political Rights) grant individuals direct rights that can be invoked before international human rights courts and committees.
- Individual Criminal Responsibility: Individuals can be held directly accountable under international criminal law for international crimes (war crimes, crimes against humanity, genocide, and aggression) before tribunals such as the International Criminal Court (ICC).

2. Nationality

Concept & Definition: Nationality is the legal bond between a person and a state, conferring allegiance on the individual and diplomatic protection on the part of the state. It is distinct from citizenship, which often implies political rights within a domestic constitutional order.
Modes of Acquisition:
- Jus Soli: Acquisition of nationality based on the place of birth (birth within state territory).
- Jus Sanguinis: Acquisition of nationality based on blood ties (parental nationality).
- Naturalization, Adoption, and Marriage.
Statelessness: The condition of an individual not being considered as a national by any state under the operation of its laws. International conventions (such as the 1954 and 1961 Statelessness Conventions) aim to reduce statelessness and protect stateless persons.

3. Extradition

A. Concept and Principles

Definition: Extradition is the formal process whereby one state (the requested state) surrenders a fugitive accused or convicted of a criminal offense to another state (the requesting state) for trial or execution of sentence.
Core Principles Governing Extradition:
1. Principle of Double Criminality: The act for which extradition is sought must constitute a punishable crime under the criminal laws of both the requesting and requested states.
2. Principle of Specialty: The extradited fugitive can only be tried and punished for the specific offense mentioned in the extradition request, and not for any other prior crime without consent.
3. Political Offense Exception: As a humanitarian safeguard, states traditionally refuse to extradite individuals wanted for political crimes (though terrorism and heinous crimes are often excluded from this exception).
4. Nullum Crimen sine Lege / Non-extradition of own nationals: Many states exercise discretion or statutory prohibition against extraditing their own citizens, preferring to try them domestically (aut dedere aut judicare – extradite or prosecute).

4. Asylum

Concept: Asylum refers to the protection that a state grants on its territory (or in its diplomatic premises abroad) to an individual who is fleeing persecution or prosecution from their home state.
Types of Asylum:
- Territorial Asylum: Granted by a state within its own national territory. Every sovereign state has the inherent right to grant territorial asylum under international law.
- Diplomatic (Extra-Territorial) Asylum: Asylum granted by a state inside its diplomatic missions, embassies, or consulates located within the territory of another state. Unlike territorial asylum, diplomatic asylum is not generally recognized as a universal customary right unless established by regional custom (frequently practiced in Latin America).

5. Privileges and Immunities of Diplomatic Envoys

Governing Instrument: Vienna Convention on Diplomatic Relations, 1961.
Rationale: To ensure the efficient performance of diplomatic functions on behalf of sending states (functional necessity).
Core Immunities & Privileges:
- Inviolability of Premises (Article 22): Diplomatic missions are immune from search, requisition, attachment, or entry by local law enforcement without the ambassador’s consent.
- Inviolability of Person (Article 29): The diplomatic agent is not liable to any form of arrest or detention.
- Immunity from Jurisdiction (Article 31): Diplomats enjoy absolute immunity from the criminal jurisdiction of the receiving state, and broad immunity from civil and administrative jurisdiction (with specific exceptions like private immovable property or commercial activity outside official functions).
- Exemption from Taxes and Customs Duties.

6. Treaties: Formation, Consent, Reservations and Termination

Governing Instrument: Vienna Convention on the Law of Treaties (VCLT), 1969.
Definition of Treaty (Article 2(1)(a)): An international agreement concluded between States in written form and governed by international law.
Formation / Stages of Treaty Making:
1. Negotiation between plenipotentiaries.
2. Adoption of the text.
3. Authentication of the text.
4. Expression of Consent to be Bound: Through signature, exchange of instruments, ratification, acceptance, approval, or accession.
Reservations (Articles 19–23 VCLT): A unilateral statement made by a state when signing, ratifying, or accepting a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that state.
Invalidity, Termination and Suspension (Part V, VCLT): Treaties can be terminated by mutual consent, material breach by a party (Article 60), or invocation of the doctrine of Fundamental Change of Circumstances (Rebus Sic Stantibus, Article 62).

7. In-Depth Landmark Case Studies

Case Study 1: Diplomatic Asylum & Extradition Rights

Case Title: Asylum Case (Colombia v. Peru)
Citation & Court: ICJ Reports 1950, p. 266 (International Court of Justice)
Related Statutory Sections: Law of Diplomatic Asylum and Regional Custom.
The Story & Real-Life Background: Following an unsuccessful military rebellion in Peru, Victor Raul Haya de la Torre (a Peruvian political leader) sought and was granted diplomatic asylum inside the Colombian Embassy in Lima. Peru refused to grant him a safe-conduct exit pass out of the country, arguing that Colombia had no unilateral right to qualify the nature of the offense as political under international law.
Legal Issues Involved: Whether a state granting diplomatic asylum has the unilateral right to legally qualify the offense (political vs. common crime) so as to bind the territorial sovereign.
Final Judgement & Ratio Decidendi:
- Ruling: The ICJ held that diplomatic asylum, as an exception to territorial sovereignty, cannot be exercised unless rooted in a treaty or established regional customary law. Furthermore, the party granting asylum is not competent to unilaterally qualify the nature of the offense in a manner binding on the territorial state.
- Ratio: Diplomatic asylum requires clear conventional backing; unilateral qualification of criminal offenses by embassies infringes upon territorial sovereignty.

Case Study 2: Nationality, Effective Link & Diplomatic Protection

Case Title: Nottebohm Case (Liechtenstein v. Guatemala)
Citation & Court: ICJ Reports 1955, p. 4 (International Court of Justice)
Related Statutory Sections: Law of Nationality and Diplomatic Protection.
The Story & Real-Life Background: Friedrich Nottebohm, a German citizen residing and running businesses in Guatemala for 34 years, applied for and obtained citizenship from Liechtenstein while traveling during World War II, without changing his actual residence or economic ties. When Guatemala seized his property as enemy property, Liechtenstein brought a diplomatic protection claim on his behalf.
Legal Issues Involved: Whether a nationality hurriedly conferred by a state can be relied upon against another state for the purpose of exercising diplomatic protection, in the absence of a genuine connection.
Final Judgement & Ratio Decidendi:
- Ruling: The ICJ ruled that for a nationality to be opposable to other states in international law, there must exist a “genuine link of attachment” between the individual and the state conferring nationality (such as habitual residence, center of interests, family ties). Since Nottebohm had no genuine connection to Liechtenstein, Guatemala was not bound to recognize his Liechtenstein nationality for diplomatic protection.
- Ratio: Nationality is a legal bond having as its basis a social fact of attachment—the principle of effective nationality.

Quick Reference Guide: Unit-III Treaties & Conventions

Unit Number	Convention / Treaty Name	Relevant Articles Range	Core Description / Subject Matter
Unit-III	Vienna Convention on Diplomatic Relations, 1961	Articles 1 to 53	Diplomatic immunity, inviolability of premises and persons, and functional necessity.
Unit-III	Vienna Convention on the Law of Treaties (VCLT), 1969	Articles 1 to 85	Formation of treaties, consent, rules on reservations, and grounds for termination.