Visitas a los sitios de trabajo

102 Murray & Co. v. Ashok Kr. Newatia & anr. AIR 2000 SC 833.

103 High Court of Judicature at Allahabad through its Registrar v. Raj Kishore & ors. (1997) 3 SCC 11.

104 Bijay Kumar Mahanty v. Jadu Ram Chandra Sahoo (2003) 1 SCC 644 105 MALCOLM N. SHAW, INTERNATIONAL LAW 766 (6th ed., CUP 2008).

decisions.106 _{As already argued above, under the Aressian legal system, charges pertaining}

to filing of false affidavit are criminal in nature.107 _{On account of the criminal proceedings,}

the Ambassador is entitled to complete immunity, thus rendering the contempt proceedings violative of international law.

A.2.1 That mere filing of affidavit does not amount to waiver of diplomatic immunity 39. The Respondent contends that the submission of an affidavit cannot be interpreted as the

waiver of diplomatic immunity. Article 32(2) of the VCDR states that the waiver of diplomatic immunity must be ‘express’108 _{and the same has been affirmed by subsequent}

decisions109_{. With respect to the specific question of whether filing of affidavit amounts to}

waiver of immunity, the British110 _{and American Courts}111 _{have held that mere filing of}

affidavit cannot amount to waiver of diplomatic immunity. In the present fact scenario, in the absence of any express waiver by the Boressian Ambassador, it cannot be said that diplomatic immunity has been waived.

A.2.3 In arguendo, even if the filing of affidavit amounts to waiver, the Boressian Ambassador cannot autonomously waive diplomatic immunity.

40. The Respondent contends that diplomatic immunity is not the personal right of the Ambassador and can be only be waived by the State to which the Ambassador belongs and not the Ambassador himself.112 _{Article 32(1) of the VCDR provides that ‘immunity} from jurisdiction of diplomatic agents may be waived by the sending State’ and this

principle has been codified into customary international law.113.

106 The Iranian Hostages case, ICJ Reports, 1980 61 ILR, p. 530; see also Dickinson v. Del

Solar [1930] 1 KB 376; 5 AD, p. 299

107 Supra 91.

108 Art. 32 (2), VCDR.

109 Public Prosecutor v. Orhan Olmez 87 ILR, p. 212.

110 Propend Finance Pty Ltd and Others v. Sing and Others 111 ILR 611, p. 641-442( Laws, J)

111 United States Circuit Court of Appeals, Second Circuit, Banco de Espana v. Federal

Reserve Bank of New York 114 F.2d 438 (1940), at pp. 444-445.

112 Fayed v. Al-Tajir, [1987] 2 All ER 396.

41. It is our submission that the ambassador cannot waive diplomatic immunity without any prior declaration by Boressia. It can thus be stated that even if the filing of an affidavit does in fact amount to waivement, such waivement cannot happen autonomously of any

declaration from Boressia. Consequently, the contempt proceedings initiated against the Ambassador are in violation of international law since Boressia has not waived the diplomatic immunity of its Ambassador.

A.3 VCDR overrides the provisions of the Aressian domestic law.

42. Aressia and Boressia by virtue of being parties to the VCDR114 _{are obligated to abide by}

its provisions on account of the customary principle of pacta sunt servanda.115_Art.27

provides that States cannot violate International Law on the ground of complying with its municipal law.116 _{Aressia cannot circumvent international law by pleading compliance with}

municipal law. In the present case, even if the Boressian Ambassador is guilty under domestic law, he cannot be proceeded against as he enjoys immunity under international law and by instituting proceedings against the Ambassador in concurrence with its

domestic laws, Aressia has violated international law by derogating the obligations laid on it under Article 31 of VCDR.

B. ARESSIA HAS VIOLATED ART.29 OF VCDR

B.1 The detention of the Boressian Ambassador is a “constraining act of authority.” 43. Art.29 of VCDR provides that the most essential purpose behind according diplomatic immunity to the agent is to protect the agent from any act which may hinder the ability of the agent to perform his duties.117 _{In order to determine whether any act of the receiving}

113 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, ICJ Reports 2002, p. 3 at p. 21, para. 52; Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), ICJ Reports 2008, p. 177 at p. 232, para. 153

114 Aressia acceded to the VCR on 15th _{Oct 1965 and Boressia succeeded to it on 13}th _Jan

1978.

115 Gabcikovo–Nagymaros 7, 78–9. 116 Art.27, VCLT.

117 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, ICJ Reports 2002 3, at 22, ¶54.

State hinders the performance of a diplomat, the ICJ has laid down the test of “Constraining Act of Authority.”118

44. In the present scenario, an order has been issued for the confiscation of the Boressian Ambassador’s passport and also for his detention. As a diplomat cannot perform his functions completely without the liberty of free travel, the orders imposing restrictions on the Boressian Ambassador are in violation of Art.29 of the VCDR.

CONCLUSION AND PRAYER

For the foregoing reasons, the Union of Boressia, respectfully requests this Honourable Court to:

1. DECLARE that the introduction of GM Pink Bibo is a step towards protection and preservation of that species;

2. DECLARE that the change in genetic make-up in Pink Bibo of River Bhargavi in Aressian region is a natural process;

3. DECLARE that the number of Pink Bibo of River Bhargavi in Boressian region has increased and hence the lifting of all bans is justified;

4. DECLARE that the destruction of mangrove forest will adversely affect the habitat of Pink

118 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, ICJ Reports 2008, 177 at 237, ¶170.

Bibo and hence is a violation of international environmental law and general principles of international law;

5. DECLARE that the Ambassador is entitled to get diplomatic immunity and hence the said proceedings are a violation of international law.

Respectfully submitted, ____________________ Agents for Boressia