ULUSLARARASI KAMU HUKUKU I - Deneme Sınavı - 15

Diplomatic protection is the procedure employed by the State of nationality of the injured person to secure protection of that person, and to obtain reparation for the internationally wrongful act inflicted. Such protection extends to both natural and legal persons

The force majeure as a defense is available only where the following three elements are met:
• the act in question must be brought about by an irresistible force or by an unforeseen
event,
• which is beyond the control of the State concerned, and
• which makes it materially impossible in the circumstances to perform the obligation.

National treatment, that is, treatment equal to that given by the concerned state to its
own nationals must be accorded to aliens.

Alien is defined as a person who, under the law of a particular state, is not a citizen of that state.

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

In criminal matters also, the “substantial connection” between the alleged offender or the offence with the state exercising jurisdiction is necessary. The state practice discloses four general principles on the basis of which states generally claim criminal jurisdiction. First, the territorial principle, that determines jurisdiction by reference to the place where the offence is committed. Second, the nationality principle, which determines jurisdiction by reference to the nationality either of the persons committing the offence even with respect to events occurring entirely abroad or with reference to the nationality of the person injured by the offence. Third, the protective principle that refers to jurisdiction according to the national interest of the state injured by the offence. Fourth, the universality principle that provides jurisdiction by reference to the nature of the crime (for example, piracy). Therefore, the correct option is A.

According to subjective territorial principle, a state has jurisdiction over a crime when it is commenced within the state but completed or consummated abroad. The objective territorial principle applies in reverse order, i.e., when a crime commenced in another state but was completed or consummated within its territory. Therefore, the correct option is D.

Active Nationality Principle: Under this principle, a state has the jurisdiction to prosecute and punish its juristic persons for a crime committed outside its territory. A state may exercise civil or criminal jurisdiction over its nationals on the basis that the nationality is a mark of allegiance which the person, charged with the crime, owes to his state of nationality. Therefore, the correct option is B.

Juristic person (artificial person). An entity, such as a corporation, that is recognized as having legal personality, i.e. it is capable of enjoying and being subject to legal rights and duties. It is contrasted with a human being, who is referred to as a natural person. Therefore, the correct option is D.

Alien: A person who, under the law of a particular state, is not a citizen of that state. Therefore, the correct option is A.

States generally exercise jurisdiction over certain offences regardless of the nationality of the offender or the place of commission of crime. These offences are considered to be against international public policy (jus cogens) and they are treated as delicts jure gentium. Any state may arrest persons committing these crimes, try and punish them under its domestic law. Delicts jure gentium: wrong against the “Law of Nations.” Therefore, the correct option is E.

Under international law, certain degree of exemption and immunity from local jurisdiction is enjoyed by the following:

• Foreign sovereigns and foreign states,
• Foreign public ships,
• Foreign armed forces,
• International organizations,
• Diplomatic representatives and consuls of foreign states. 

Therefore, the correct option is B.

Several principles are quoted as the basis of jurisdictional immunity:

a. Par in parem non habet imperium, i.e., an equal has no authority over an equal.
b. The principle of non­intervention, i.e., the matters related to the acts, policy and transactions of a foreign state should not stand to scrutiny by the territorial state, lest it would amount to intervention in the internal matters of another state.
c. Rule of comity or reciprocity, i.e., the accepted rules of mutual conduct as between states, which each state adopts in relation to other states and expects other states to adopt in relation to itself. It may otherwise be considered as an unfriendly act.
d. Implied grant of license to a foreign sovereign or state to visit or function within its territory signifies immunity and imposes an implied obligation on the territorial state not to derogate from such a grant.

Therefore, the correct option is C.

Under customary international law, diplomatic missions have three functions to perform:

• to protect the interests of the sending state and its nationals,
• to negotiate with the government of the receiving state, and
• to report about the conditions of the receiving state.

Therefore, the correct option is D.

The natural law theory led to the natural rights theory, which is most closely associated with the modern concept of human rights. The chief exponent of this theory was John Locke. Natural rights theory emphasizes the moral worth of the individual. Accordingly, the individual possesses basic human rights and everyone is inherently entitled to these rights as a human being, independent of whether or not these rights are recognized by the ruler. Therefore, the correct option is A.

Another approach to human rights is legal positivism. Under the positivist theory, the source of human rights is to be found only in the enactments of law with sanctions attached to it. Jeremy Bentham and John Austin were its chief proponents. They considered the natural law to be vague and meaningless. They believed in freedom and equality; however, they did not base these values on natural law. A sovereign can define the scope of liberties of its subjects. It is the principle of utility that helps the state in deciding the limits of civil liberty. Under this theory, rules of international law are merely rules of positive morality. According to positivists, the individual has no status in international law. Therefore, the correct option is C.

Marx regarded the natural law approach to human rights as idealistic and ahistorical. He saw nothing natural or inalienable about human rights. Concepts such as law, justice, morality, democracy, and freedom are considered historical categories whose contents are determined by the material conditions of and the social circumstances of a people. As the conditions of life change, so the content of notions and ideas may change”. While the focal point of Marxism is to recognize the contextuality of human rights in terms of the conditions of a society, conceiving human rights chiefly in a materialistic frame has been one of its significant weaknesses. Therefore, the correct option is D.

The Universal Declaration of Human Rights, which is the embodiment of the rights of both these generations, attaches equal importance to political and economic rights and consider them as interdependent. However, in the 1970s, a “third generation” rights emerged with the predominant support of the developing countries. In contrast to the individual’s rights (i.e., the first two generations rights), these are collective or  group rights such as the right to development, right to healthy human environment, right to peace, and right to self-determination. Therefore, the correct option is B.

The UN Charter, which has played the catalyst role in the human rights movement, does not give a definition of fundamental freedoms and human rights, nor does it provide any machinery to secure their observance. This task has been fulfilled by the subsequent United Nations instruments. The First critical instrument was the Universal Declaration of Human Rights, adopted by the General Assembly on December 10, 1948. It defined expressly certain human rights and fundamental freedoms that need to be protected. 

The Declaration is not a legally enforceable instrument and some of the rights mentioned therein, viz., the right of asylum (Art. 14), could not be said to represent the legal rule. Other rights are merely general principles of law or represent elementary considerations of humanity. The rights enshrined in the Declaration in its 30 articles are broadly divided into civil and political rights, and economic, social and cultural rights.

Therefore, the correct option is D.

The Human Rights Council is a subsidiary organ of the General Assembly.  Unlike the CHR, which was a subsidiary body of the ECOSOC and reporting to the ECOSOC, the Human Rights Council reports to the General Assembly. The Council is made of 47 Member States, which are elected by the members of the General Assembly of the United Nations through direct and secret ballot. Members of the Council serve for a period of three years and are not eligible for immediate re-election after serving two consecutive terms. The Council’s Membership is based on equitable geographical distribution. Seats are distributed as follows:

• African States: 13 seats
• Asia-Pacific States: 13 seats
• Latin American and Caribbean States: 8 seats
• Western European and other States: 7 seats
• Eastern European States: 6 seats

Therefore, the correct option is B.