scholarly journals How far does the Systemic Approach to Immunities take us?

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 16-21 ◽  
Author(s):  
Philippa Webb
Keyword(s):  
International Law ◽  
Legal Order ◽  
Systemic Approach ◽  
Legal Certainty ◽  
Draft Article ◽  
Criminal Jurisdiction ◽  
International Legal Order ◽  
Systemic Nature ◽  
International Law Commission ◽  
Law Commission

The International Law Commission (ILC) explains in its 2017 Commentary to Draft Article 7 of its Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction that the draft articles are “intended to apply within an international legal order whose unity and systemic nature cannot be ignored.” The quest for coherence is admirable. It enhances legal certainty and predictability in an evolving area of the law. But a systemic approach can also go too far—stretching analogies and ignoring differences, seeing a trend where there is none. The trajectory of the ILC's work on Draft Article 7 illustrates certain dangers.

System Values and Understanding Legal Language

2008 ◽  
Vol 21 (1) ◽  
pp. 29-61 ◽  
Author(s):  
MAKSYMILIAN DEL MAR
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Legal Order ◽  
Legal Language ◽  
International Legal Order ◽  
Institutional Contexts ◽  
International Law Commission ◽  
Fragmentation Of International Law ◽  
Law Commission ◽  
The Ideal

AbstractThis paper argues that the concerns and methodology of the recently completed Report of the International Law Commission (ILC) over the fragmentation of international law presuppose a particular way of understanding legal language which tends to separate the understanding of rules from their factual adaptability to certain recurring social problems faced within specific institutional contexts. The paper argues that separating rules from their factual adaptability focuses the analysis on surface coherence – coherence at the level of abstract terms and phrases. It is the argument of this paper that this presupposition is not warranted, and that the understanding of rules cannot be thus separated. An alternative model of the understanding of legal language is developed on the basis of the work of Bernard Jackson and Geoffrey Samuel. This is further supplemented by the approach to the study of institutional contexts in the recent work of Robert Summers and John Bell. Together, these resources can lead to the analysis of the deep coherence of the international legal order, that being one that prioritizes not the unity of that order, but its responsiveness. The ideal of responsive law is elaborated upon by reference to the work of Philip Selznick and Philippe Nonet. Finally, a different agenda for the ILC is offered on the basis of the methodology of deep coherence. The upshot is that the paper calls for a reorientation of international legal theory, away from concerns about ‘the law itself’ and towards an engagement with the responsiveness of legal work performed in international legal institutions.

scholarly journals Immunity Ratione Materiae of State Officials from Foreign Criminal Jurisdiction: Where is the State Practice in Support of Exceptions?

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 4-8 ◽  
Author(s):  
Sean D. Murphy
Keyword(s):  
International Law ◽  
War Crimes ◽  
The State ◽  
Crimes Against Humanity ◽  
Draft Article ◽  
Criminal Jurisdiction ◽  
State Practice ◽  
International Law Commission ◽  
Law Commission

In the summer of 2017, the UN International Law Commission adopted Draft Article 7 and an associated draft annex for its project on immunity of state officials from foreign criminal jurisdiction. The draft article identifies six “crimes under international law in respect of which immunity ratione materiae shall not apply”: genocide; crimes against humanity; war crimes; crime of apartheid; torture; and enforced disappearance. Given the divergences within the Commission when considering and adopting Draft Article 7 (as evidenced by the plenary debate in 2016 and 2017, the unusual recorded vote on whether to refer the matter to the Commission's drafting committee, and the Commentary), it is difficult to conclude that the Commission is expressing a view that Draft Article 7 reflects lex lata.

scholarly journals The “International Crime” Exception in the ILC Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction: Two Steps Back?

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 27-32 ◽  
Author(s):  
Rosanne van Alebeek
Keyword(s):  
International Law ◽  
International Crime ◽  
Customary International Law ◽  
Draft Article ◽  
The Real ◽  
Criminal Jurisdiction ◽  
International Crimes ◽  
Functional Immunity ◽  
International Law Commission ◽  
Law Commission

In addressing the topic of the immunity of state officials from foreign criminal jurisdiction, the International Law Commission (ILC) took on one of the most contentious issues in contemporary international law. The question whether functional immunity applies when officials are accused of having committed international crimes has divided courts and scholars alike, and the ILC was deeply split. The “international crimes” exception set forth in Draft Article 7 was, exceptionally, put up for a vote, with twenty-one votes cast in favor of provisional adoption, one abstention, and eight negative votes. Because the ILC has a mandate to both codify and progressively develop international law, these figures do not help resolve what was arguably the real bone of contention: whether or not the exception is already part of customary international law—that is, whether it is lex lata.

scholarly journals Foreign Official Immunity in the International Law Commission: The Meanings of “Official Capacity”

AJIL Unbound ◽  
2015 ◽  
Vol 109 ◽  
pp. 156-160
Author(s):  
William S. Dodge
Keyword(s):  
International Law ◽  
Criminal Jurisdiction ◽  
International Crimes ◽  
International Law Commission ◽  
Law Commission

Of all the issues facing the International Law Commission (ILC) in its work on the topic of “Immunity of State Officials from Foreign Criminal Jurisdiction,” how to define “act performed in an official capacity” is certainly one of the most difficult and important. If serious international crimes, like torture, are considered acts performed in an official capacity, then foreign officials responsible for such crimes may (unless an exception applies) be immune from criminal jurisdiction in other states for such acts even after they leave office.

The Role of Treaties in Pursuing the Objectives of the UN Charter

2019 ◽  
pp. 68-86
Author(s):  
Christian J. Tams
Keyword(s):  
United Nations ◽  
International Law ◽  
International Organizations ◽  
Legal Order ◽  
Master Plan ◽  
International Law Commission ◽  
Binding Mechanisms ◽  
Law Commission

Treaties are a central building block of the United Nations legal order. They have particular significance for the objectives set out in the UN Charter: these need to be implemented and effectuated, and treaties concretizing the Charter’s broad objectives can help achieve that aim. The Charter text, perhaps surprisingly, does not reflect this adequately. Unlike constituent documents of other international organizations, the Charter formulates no master plan for the UN’s use of treaties, and only occasionally mentions treaties explicitly. Its guidance is primarily indirect: some Charter objectives are formulated in such vague terms that without follow-up action, including follow-up action that takes the form of treaties, they would be meaningless. The drafter’s surprising caution means that the role of treaties in pursuing UN objectives is primarily shaped by practice rather than the Charter text. In the seven decades since the UN’s establishment, treaties—prepared in highly diverse processes, including by the International Law Commission (ILC) and within specialized agencies—have sprawled. In the absence of a Charter master plan, they have grown to cover large parts of the continent of international law. A sole focus on the gigantic network of treaties, however, risks overlooking the fact that more often than not, member states and UN organs prefer other means of pursuing Charter objectives (resolutions, statements, and other non-binding mechanisms). The landscape of treaties is as uneven as it is diverse.

scholarly journals Methodological Flaws in the ILC's Study on Exceptions to Immunity Ratione Materiae of State Officials from Foreign Criminal Jurisdiction

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 9-15 ◽  
Author(s):  
Qinmin Shen
Keyword(s):  
International Law ◽  
War Crimes ◽  
Crimes Against Humanity ◽  
General Assembly ◽  
Draft Article ◽  
Criminal Jurisdiction ◽  
International Crimes ◽  
The Core ◽  
Un General Assembly ◽  
International Law Commission

In July 2017, the UN International Law Commission (ILC) provisionally adopted Draft Article 7 on exceptions to immunity ratione materiae of state officials from foreign criminal jurisdiction, by a recorded vote of twenty-one votes in favor, eight votes against, and one abstention. In the view of the majority of ILC members, immunity ratione materiae does not apply to the six international crimes listed in the draft article—genocide, crimes against humanity, war crimes, apartheid, torture, and enforced disappearance—either because of a limitation or because of an exception. The unusual practice of adopting a draft article by recorded vote demonstrated the deep controversy among the ILC members themselves. After all, exceptions to official immunity lie at the core of the project of “Immunity of State Officials from Foreign Criminal Jurisdiction” that was started a decade ago by the ILC. This divisive Draft Article 7 naturally garnered criticism and equally deep controversy among states in discussions on the ILC's work report at UN General Assembly Sixth Committee in late October 2017.

Lessons from the ILC’s Work on ‘Immunity of State Officials’: Melland Schill Lecture, 21 November 2017

2019 ◽  
Vol 22 (1) ◽  
pp. 34-69
Author(s):  
Michael Wood
Keyword(s):  
International Law ◽  
Clear View ◽  
Criminal Jurisdiction ◽  
Current State ◽  
International Law Commission ◽  
Law Commission

The topic Immunity of State officials from foreign criminal jurisdiction has been on the programme of work of the International Law Commission since 2007. After ten reports from two Special Rapporteurs, by June 2019 it has yet to complete a first reading, not least because the topic has proved highly contentious both within the Commission and among States. The Commission could only adopt a central provision (on exceptions to immunity ratione materiae), exceptionally, having recourse to voting. There are several lessons to be learnt from the handling of the topic over the last twelve years, including for such crucial aspects of the Commission’s working methods as the choice of topics; the need for a clear view of the Commission’s aim in taking up a topic; the need for rigour in assessing the current state of international law; the importance of dialogue, within the Commission and between the Commission and States; and the utility or otherwise of voting.

scholarly journals The Right of Intervention for the Protection of Nationals : Reassessing the Doctrinal Debate

2005 ◽  
Vol 30 (2) ◽  
pp. 441-493
Author(s):  
Jean Raby
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Legal Order ◽  
Practical Reasons ◽  
The Past ◽  
International Legal Order ◽  
The Subject ◽  
The Right ◽  
International Law Commission ◽  
Self Defence

The legality of a forceful intervention by a state to protect its nationals has been the subject of a continuing controversy over the past 15 years. Many see it as an unlawful use of force prohibited by the Charter of the United Nations, others see it as a lawful exercice of a self-standing right recognized under contemporary international law, some finally claim it falls under the scope of self-defence. The author proposes not to restate that debate, but more to reassess it, examining and challenging some of the arguments raised on both sides of the question. Within that debate, it will be concluded that the international legal order does indeed recognize the validity of the use of force for such a purpose : if the avenue of self-defence is rejected, for conceptual as well as practical reasons, the right of intervention to protect nationals is indeed, for the author, part of the comtemporary international legal order. Then, the author wishes to broaden the debate and proposes another option, which has not been explored by scholars and publicists but which is found more satisfactory than any other approach : intervention to protect nationals can be justified under international law because of the existence, in a particular case, of a "state of necessity" as defined by the International Law Commission.

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