Diplomatic and Consular Law

Diplomatic and Consular Law
Definition of diplomatic law is not much revealed, because the essence of diplomatic law is part of international law that has some of the same legal sources such as international conventions.
Diplomacy is a way of communication carried out between various parties, including the negotiations between the representatives that have been recognized. Practices such countries have long been institutionalized, and then incarnated as the rules of international law. Traditional sense but the words 'diplomatic law' is used to refer to the norms of international law governing the status of a diplomatic mission functions that are exchanged by the countries that have diplomatic relationship, it is different with current notions that not only include the diplomatic relations and consular between countries, but also representation of the state in relation to international organizations.
Of understanding, as mentioned above can be drawn the conclusion that some important factors that relations between nations to develop cooperation and friendship, the relationship is conducted through the exchange of diplomatic missions, including its officials. Thus, understanding the nature of diplomatic law are provisions or principles of international law governing diplomatic relations between the countries on the basis of common agreement and the provisions or the principles set out in legal instruments as a result of the codification of international law and custom development progress of international law.
In its development, diplomatic law has a scope that extends to not only include the diplomatic relations between states, but also relations and consular representation of the state in relation to international organizations that have particular responsibilities and membership of a global or international organization commonly known as the universal . Even within the framework of diplomatic law may also include provisions on the protection of safety, the prevention and punishment of crimes directed at diplomats.
Diplomatic officials sent by some other country to have considered having a special sacred nature. As a consequence, they have been granted diplomatic immunity and privileges, this is a rule of international law practice has been established, including property, buildings and communications. To show the totality of diplomatic immunity and privileges, there are 3 teory frequently used in this case, namely; exterritoriality theory, the representative character theory and theory of functional necessity. The nature and principles that are given to the diplomats by the recipient country's national laws. Granting of these rights based on reciprocity between states and is absolutely necessary in order to:
Develop friendly relations among nations, without considering the constitutional system and their different social systems.
Not for the individual but to ensure the operation of diplomatic officials duties efficiently, especially in the task of representing the state.
Diplomatic immunity and privileges will continue until the diplomats have a proper time before his departure after completing his task in any recipient country. But every time the recipient country can request the sending country to attract diplomats when he was declared persona non grata.
Essential International Law
What is the importance of international law is to provide a clear restriction on state authority in the implementation of interstate relations. This is contrary to the interests of international political organization that aims to maintain or increase power. Therefore, the law provides significant operational instructions about permissibility and prohibition to limit the absolute power of the state.
Reality linkages between the two dimensions of this relationship leads to the question the essence of law as a coercive force. Effectiveness of the legal problems in international relations raises two diameteral consequences are opposite each other. First, the structure of national laws is higher than in international law. This understanding of international legal implications of a country's domestic policy will be measured based on the national legal system. Here the new international law would apply if not in conflict with national law Siwak F. To be effective, international law also needs to be adopted prior to the national law, which is a process undertaken including through ratification. Essentially a legal doctrine of pacta sunc servanda which serves as a legal agreement for the parties. Agreement reflects the intention to achieve free voluntarily by the subject of international law that have equality with one another. In contrast, legal votes could not function effectively if there is no desire to submit to the state under the provisions arranged. Then the second understanding meanwhile argued that international law apply as domestic law Siwak F binding state without going through the process of adoption into national law. According to this paradigm is the foundation of international law governing the highest interstate relations. Source of binding force of international law is the principle of natural law (costumary) which places reason the international community as an ideal and an ideal source of the highest law. Regardless of whether or not this agreement, the state can legally bound by the principles of international law applicable by Siwak F universal or international customs. Customary itself proves that the practice of the state of the same thing and have been crystallized, so recognized by the international community has legal implications for the violations against him.
Diplomatic Law Definition

Speaking of diplomatic law certainly can not be separated from what is called the diplomacy. Diplomacy is a way of communication carried out between various parties, including negotiation between representatives who have been approved. There are some experts who tried to give definis of diplomacy, some of which are:
1.Random House Dictionary:
"The conduct by Government officials of negotiations and other relations is between nationas; the art of science of conducting such negotiations; skill in managing negotiations, handling of people so that there is little or no ill-will TACT".
2.Sir Ernest Satow:
"Diplomacy is the application of intelligence and TACT to the conduct of official relations between the Goverments of Independent States, sometimes extending also to their relations with vassal states; or more briefly still, the conduct of business between States by peaceful means".
3.Quency Wright (in the book The Study of International Relations) provides limits in 2 ways:
a. The employment of TACT, shrewdness, and skill in any negotiation or transaction.
b. The art of negotiation in order to achieve the maximum of cost, within a system of politics in which war is a possibility.
Nicholson 4.Harold:
a. The management of internal relations by means of negotiation.
b. The method by which these relations are adjusted and manage by Ambassadors and
envoys.
c. The business of art of the diplomatist.
d. Skill or address in the conduct of international intercourse and negotiations.
5. Brownlie:
"... Diplomacy comprises any means by which states establish or maintain mutual relations,
communicate with each other, or carry out political or legal transactions, in each case
through their authorized agents ".
If viewed from the traditional understanding, diplomatic law is used to refer to the norms of international law governing the status and functions of diplomatic missions that are exchanged by the countries that have diplomatic relationship. Definition of diplomatic law traditionally has now been extended because of diplomatic law now includes not only diplomatic and consular relations between countries, but also include state representation in relation to international organizations.
There are several important factors to be gained from understanding the law of diplomatic previously mentioned above, namely:
Relations between nations to develop cooperation and friendship.
Relationship was conducted by an exchange of diplomatic missions.
The officials concerned should be recognized status as a diplomatic representative.
Of the factors mentioned above, the notion of diplomatic law are essentially the provisions or principles of international law governing diplomatic relations between the countries on the basis of common agreement and the provisions or the principles set forth in the legal instruments as results from the codification of international customs law and advances the development of international law.

B. Development of Diplomatic Law Codification
In social interaction, such countries are familiar with consular missions and diplomatic in a very general sense as it is now known in the 16th century and the 17th, and the classification of the Diplomatic Heads of Mission have been set out in the Congress of Vienna in 1815 as follows:
1.Duta-ambassadors and emissaries (Ambassadors and legate)
2.Minister plenipoteniary and envoys extraordinary
Business 3.Kuasa (charge d 'affaires)
And after the United Nations was founded in 1945, two years later established the International Law Commission. After thirty years (1949-1979), the commission has been dealing with 27 topics and subtopik international law, 7 of them are there laws regarding diplomatic, namely:
1.Pergaulan and diplomatic immunity
2.Pergaulan and consular immunity.
3.Misi-specific mission
4.Hubungan between states and international organizations
5.Masalah protection and not be disturbed gugatnya diplomatic officials and others who receive special protection under international law.
6.Status diplomatic courier and the diplomatic bag is included in the diplomatic courier.
7.Hubungan between countries with international organizations

C. UN Conventions Concerning Diplomatic Law
1. 1961 Vienna Convention on diplomatic relations
After the founding of the United Nations in 1945, for the first time the development of codification of international law including diplomatic law has started in 1949 by the Intensive International Law Commission, especially on the provisions concerning the immunity and diplomatic relations that have been outlined in detail.
1961 Vienna Convention consists of 53 chapters covering almost all important aspects of a permanent diplomatic relations between countries. In addition, there are also 2 protocol options citizenship issues and the need to resolve the dispute, each of which consists of chapters 8-10. Vienna Convention and its 1961 protocol with the two already in effect since April 24, 1964 to December 31, 1987. There are a total of 151 countries to the parties to the Convention, where 42 of them are parties to the protocol option of obtaining citizenship and 52 countries have become parties to the protocol of having the option to resolve the dispute.
1-19 Article 1961 Vienna Convention regarding the establishment of diplomatic missions, the right and the means for removal and transfer of credentials from the Diplomatic Heads of Mission (Ambassador); chapters 20-28 of the immunity and privileges of diplomatic missions, including the which the various tax exemption. Section 29-36 is about the immunity and privileges granted to diplomats and privileges for family members and care staff who work in them and contain 48-53 articles about various provisions of the signing, accession, ratification and entry into force of the Convention.

2. 1963 Vienna Convention on consular relations
For the first time to hold a codification of business rules of the institution has been done in consultation Konverensi American countries in 1928 in Havana, Cuba, where in that year approved the Convention on Consular Agents. After that, felt there was not a serious enough effort to hold a further codification of the rules on consular relations until after the UN General Assembly asked the International Law Commission to do the codification of the problem.

3. New York Convention of 1969 on a special mission
The Convention of Vienna in 1961 and 1963 have been put codification of existing common law, while the convention is intended to provide a more organized rules regarding special missions have different objectives with limited diplomatic missions permanent.

4. New York Convention on the prevention and punishment of crimes against person -
who according to international law, including diplomats.
In its development, diplomatic law has noted further progress with particular required by a convention, an important obligation for the recipient country to prevent any attack directed at a person, freedom and honor of the diplomats as well as to protect the diplomatic representation of the building. In 1971, the Organization of American States has approved a convention on the matter. In the trial that the 24 in the year 1971, in connection with the increasing crime committed to the diplomatic missions, including the diplomats, the UN General Assembly has requested the International Law Commission to prepare draft articles on the prevention and punishment of crimes committed against people a protected person of international law. Convention on the issue was finally approved by the UN General Assembly in New York on December 14, 1973 with rseolusi 3166 (XXVII).
In the preamble, emphasized the importance of the rules of international law should not be disturbed gugatnya and need special protection to people who under international law must be protected, including the obligations of states in addressing and overcoming the problem. 1973 New York Convention is composed of 20 chapters and although only a few provisions, but enough to cover the various aspects relating to the protection and punishment of violations.

5. 1975 Vienna Convention on the representation of the state in relation to the
International organizations that are universal.
The importance of this convention the formulation actually encouraged by the situation where the growth of international organizations so rapidly both in number and scope of legal issues arising from the relationship with the state of international organizations.
In a further development, there are problems in the trial in 1971 who filed three issues, namely:
1.Dampak that may occur in exceptional circumstances such as lack of recognition, lack of decision, diplomatic and consular relations, or a weapon in disputes between members of the international organization itself.
2.Perlu inclusion of provisions on dispute settlement
3.Delegasi observers from the countries to the various bodies and conferences.

D. Source of International Law

Talking about the source of diplomatic law certainly can not be separated from sources of international law because of diplomatic law is basically a part of international law itself.
According to Article 38 of the Statute of the International Court, the source of diplomatic law include:
a. Convention or international agreement.
b. International habit.
c. Common law principles
d. Legal doctrine.

1. convention or international agreement.
Conventions or international agreements in general are essentially involves many countries as parties, therefore, convention or treaty is commonly known to have a multilateral character. While in the particular sense, the convention can occur with only a few countries and if only between the 2 countries have, generally referred to the bilateral nature.
Conventions or international agreements in general are known and can be accepted as a source of international law. However, we need to remember that many international treaties do not create a general rule in international law, but merely a statement of the rules that already exist. Therefore, international treaties yan can be considered as a source of international law is not the ordinary international treaties, but in a special type called the treaty that created the law (treaty law making).
But also need to understand if the agreement creates a legal nature can not be enforced or do not have the binding for countries that perform specific rejection of the agreement. Examples of international agreements that created the law:
1.The Final Act of the Congress of Vienna (1815) on Diplomatic Ranks.
2.Vienna Convention on Diplomatic Relations and Optional Protocols (1961)
Beside the convention, there was also a resolution or a declaration issued primarily by the UN General Assembly that could cause problems if they can be considered to have legal obligations are binding.
With regard to the issue of the resolution that, traditionally, resolutions and declarations that do not possess such agreements should be considered to have no compulsory powers for not creating law, but in addition to the traditional view that, started to develop a theory of the agreement reached on a consensus basis for countries to its ties with the legal obligations are concerned.
Although there are two opinions as it has been proposed above, the force of law for a resolution is still not clear limitations. Existing problems is when the resolution was approved by a majority of member states, whether the resolution has a binding legal force.
In this case, the resolution produced by normal road would not make, formulate or change the resolution it became international law. However, the new resolution was said to have binding force if the resolution is universally supported, or if the UN General Assembly has declared intention to create a resolution that states the law or legal basis and if the contents of this resolution is reflected in the common customs country. Examples of resolutions that became a source of international law, resolution 3166 (XXVIII).

2. international customs
Concerning the status of international custom as a source of international law has been stated in Article 38 of the Statute of the International Court and is considered the reality of general practice accepted as law, however, the legal basis of international practice before has aroused opposition, especially for newly established country.
Problems concerning the legal basis of international practice is debated in the International Law Commission and in particular the UN General Committee when formulating the draft Article 24 of the Statute of the International Law Commission agreed that:
"A general recogintion among states of a certain practice as obligatory", The Emergence of a
principle or rule of Customary international law would seem to require presence of the following elements:
a. Concordant practice by a number of states with reference of a type of situation
failing within the domain of interantional relations;
b. Continuation or repetition of the practice over the considerable period of time;
c. Conception that the practice is required by, or consistent with, prevailing
international law; and
d. General acquiescence in the practice by other States.
Habit and international agreements are the main source of diplomatic law, while other sources of diplomatic law in nature is a subsidiary is:
a. Common law principles.
b. Doctrine or the international court decision.
What is meant by common law principles are general principles recognized in the law recognized by nations. Especially on the Court's decision, the source of this law essentially has no binding force (as well as general legal principles) except for certain parties involved in a case.