Certain Criminal Proceedings in France; (Republic of the Congo v. France)

2021 ◽  
Vol 191 ◽  
pp. 172-218
Keyword(s):  
Diplomatic Relations ◽  
Criminal Proceedings ◽  
International Court Of Justice ◽  
State Immunity ◽  
Court Of Justice ◽  
Foreign State ◽  
Head Of State ◽  
Sovereign Equality ◽  
International Court ◽  
Judicial Investigation

International Court of Justice — Provisional measures of protection — Criteria — Prima facie basis for jurisdiction — Forum prorogatum — State consent to jurisdiction of International Court of Justice — Rules of the Court, Article 38 — Risk of irreparable prejudice — Link between risk of prejudice and rights claimed in the Application — Relevance of full extent of possible harm — Relevance of wider political consequences — Urgency — Non-extension and non-aggravation of dispute — Whether provisional measures required to prevent aggravation or extension of dispute — Removal of case from List State immunity — Head of State — Senior officials — Sovereign equality of States — Whether judicial investigation of foreign State officials violating principle of sovereign equality — Whether risk of irreparable prejudice to immunities Diplomatic relations — Risk of irreparable prejudice to diplomatic relations — Whether judicial investigation of foreign State officials constituting risk of irreparable prejudice to diplomatic relations between States Relationship of international law and municipal law — Head of State immunity — Compatibility of domestic criminal powers with principle of head of State immunity — Sovereign equality — Compatibility of domestic criminal powers with the principle of sovereign equality

IMMUNITY FOR INTERNATIONAL CRIMES: A REAFFIRMATION OF TRADITIONAL DOCTRINE

2002 ◽  
Vol 61 (2) ◽  
pp. 239-294 ◽  
Author(s):  
Xiaodong Yang
Keyword(s):  
International Law ◽  
Foreign Affairs ◽  
Criminal Proceedings ◽  
International Court Of Justice ◽  
State Immunity ◽  
Court Of Justice ◽  
Head Of State ◽  
International Court ◽  
Republic Of The Congo ◽  
Head Of Government

InArrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), decided on 14 February 2002, the International Court of Justice held that an incumbent Minister for Foreign Affairs was immune from criminal proceedings before a foreign domestic court, even if the charges involved crimes against humanity. Human rights advocates might well regard this decision as a serious setback. Decided against a widespread euphoria brought forth by, and largely due to a neglect of an important dictum in, the historic holding in Pinochet No. 3 [2000] 1 A.C. 147, the case serves further to clarify a crucial point of State immunity in current international law. The Pinochet case dealt with the immunity of a former, as opposed to a serving, Head of State. While the majority of the Law Lords only mentioned in passing that the immunity enjoyed by a serving Head of State ratione personae was absolute, the International Court of Justice stated, in unambiguous language, that: … in international law it is firmly established that, as also diplomatic and consular agents, certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal.

Immunities and Criminal Proceedings; (Equatorial Guinea v. France)

2021 ◽  
Vol 191 ◽  
pp. 219-373
Keyword(s):  
International Law ◽  
Customary Law ◽  
Vienna Convention ◽  
Diplomatic Relations ◽  
International Court Of Justice ◽  
State Immunity ◽  
Optional Protocol ◽  
Court Of Justice ◽  
International Court ◽  
Settlement Of Disputes

International Court of Justice — Provisional measures — Diplomatic relations — Immunity of State officials and State property — Prima facie jurisdiction — United Nations Convention on Transnational Organized Crime, 2000 (“Palermo Convention”) — Optional Protocol to Vienna Convention on Diplomatic Relations concerning the Compulsory Settlement of Disputes, 1961 — Plausibility — Article 22 of Vienna Convention on Diplomatic Relations, 1961 — Inviolability of diplomatic premises — Whether building located at 42 Avenue Foch could plausibly be regarded as housing diplomatic mission of Equatorial Guinea — Irreparable prejudice — Urgency — Link between provisional measures requested and rights sought to be protected International Court of Justice — Jurisdiction — Palermo Convention — Whether references to customary international law incorporate those rules of customary law into the Convention — Sovereign equality of States — Whether dispute regarding alleged breach of customary law principle within jurisdiction of the Court under the Palermo Convention — Vienna Convention on Diplomatic Relations, Optional Protocol — Dispute regarding status of buildings claimed as premises of diplomatic mission International Court of Justice — Admissibility — Abuse of process — Abuse of rights — Whether reasons not to exercise jurisdiction under Optional Protocol to the Vienna Convention on Diplomatic Relations — Matter for preliminary objections — Whether exceptional circumstances existing — Whether Application inadmissible on that basis — Abuse of rights — Whether ground of inadmissibility when establishment of rights claimed properly a matter for merits Treaties — Palermo Convention — Subject matter of dispute — Procedural preconditions to Court’s jurisdiction under Article 35(2) of Palermo Convention — Scope of jurisdiction ratione materiae under Palermo Convention — Article 4 of Palermo Convention — Incorporation of customary rules of international law on State immunity by reference to principles of sovereign equality, territorial integrity and non-intervention in internal affairs of other States — Alleged overextension of jurisdiction by France in implementing provisions of Palermo Convention 220Diplomatic relations — Vienna Convention on Diplomatic Relations, 1961 — Optional Protocol to Vienna Convention on Diplomatic Relations concerning the Compulsory Settlement of Disputes, 1961 — Subject matter of dispute — Procedural preconditions to Court’s jurisdiction under Articles II and III of Optional Protocol — Meaning of “premises of the mission” under Article 1(i) of Vienna Convention — Whether definition of “premises of the mission” falling within scope ratione materiae of Vienna Convention — Whether a dispute concerning inviolability of the building at 42 Avenue Foch State immunity — Jurisdictional immunity — Head of State immunity — Vice-President of State accused of misappropriation of funds and money laundering by authorities of another State — Whether entitled to immunity — Basis for any claim to immunity — Customary international law — Whether incorporated into Palermo Convention

The Immunity of Heads of States in US Courts after the Decision of the International Court of Justice

2003 ◽  
Vol 72 (3) ◽  
pp. 313-339 ◽  
Author(s):  
Simon de Smet
Keyword(s):  
International Law ◽  
The United States ◽  
International Court Of Justice ◽  
Customary International Law ◽  
State Immunity ◽  
Court Of Justice ◽  
Head Of State ◽  
International Court ◽  
The World ◽  
The U.S

AbstractThis article investigates the law of Head of State immunity in the United States in light of the recent decision by the International Court of Justice in the Arrest Warrant Case (DRC v. Belgium). It does so by analyzing the U.S. law and comparing it with the customary international law on Head of State immunity as laid out by the world court. The article demonstrates that there are two competing strands in the recent jurisprudence of U.S. courts, neither of which is in conformity with international law. The reasons for this discrepancy are examined and explained in light of the underlying debate about the role of customary international law in the U.S. constitutional system. In conclusion, the author suggests that the best solution to the current dilemma is for the U.S. courts to apply the rules on Head of State immunity as explained by the world court and avoid as much as possible interference by the executive.

Immunities and Criminal Proceedings (Equatorial Guinea v. France) (I.C.J.)

2021 ◽  
pp. 1-96
Author(s):  
Péter Kovács
Keyword(s):  
Legal Status ◽  
Equatorial Guinea ◽  
Criminal Proceedings ◽  
International Court Of Justice ◽  
Charles De Gaulle ◽  
Court Of Justice ◽  
International Court ◽  
De Gaulle

On December 11, 2020, the International Court of Justice (ICJ or Court) delivered by majority its judgment on the merits of the litigation between Equatorial Guinea and France concerning the legal status of a building at 42 Avenue Foch, situated in Paris, in the very elegant 16th district, close to the Arc de Triomphe (Place de l'Étoile/Place Charles de Gaulle).

Forum Prorogatum Returns to the International Court of Justice

2003 ◽  
Vol 16 (4) ◽  
pp. 701-713 ◽  
Author(s):  
SIENHO YEE
Keyword(s):  
Criminal Proceedings ◽  
Judicial Process ◽  
National Interests ◽  
International Court Of Justice ◽  
General Acceptance ◽  
Court Of Justice ◽  
Peaceful Settlement ◽  
International Court ◽  
The Icj

The ICJ interpreted Article 36(1) of its Statute – more specifically, the phrase ‘all cases which the parties refer to it’ – as permitting it to adopt the doctrine of forum prorogatum as a jurisdictional principle and to adapt this doctrine to the circumstances of international judicial process, as an informal way of founding its jurisdiction over the merits of a dispute. The resort to this doctrine has given rise to some concerns and has not received the general acceptance of states. The Certain Criminal Proceedings in France case marks the successful return of the doctrine to the ICJ and shows that the doctrine is a valuable tool for nationalists seeking to protect national interests and for internationalists seeking to promote the peaceful settlement of international disputes.

scholarly journals Criminal Proceedings Against Albers

2013 ◽  
Vol 107 (3) ◽  
pp. 632-638
Author(s):  
Filippo Fontanelli
Keyword(s):  
World War Ii ◽  
International Law ◽  
World War ◽  
Criminal Proceedings ◽  
Sovereign Immunity ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
Court Of Appeal

In August 2012, the First Criminal Division of the Court of Cassation (Supreme Court or Court), the highest Italian domestic court, issued a judgment upholding Germany’s sovereign immunity from civil claims brought by Italian war crime victims against Paul Albers and eight others in the Italian courts (Albers). In so doing, the Court overruled its own earlier decisions and also reversed the judgment of April 20, 2011, by the Italian Military Court of Appeal (Military Court), which had upheld such claims relating to war crimes committed by German forces in Italy during World War II. With this ruling, the Court of Cassation put an end to its decade long effort to find an exception to the well-known rule of customary international law providing for sovereign immunity from foreign civil jurisdiction for actsjure imperii. Thisrevirementresulted from the Court’s decision to give effect to the judgment of the International Court of Justice (ICJ) inGermany v. Italy.

Judgment No. 238 – 2014 (IT. Const. Ct.)

2015 ◽  
Vol 54 (3) ◽  
pp. 471-506
Author(s):  
Alessandro Chechi
Keyword(s):  
The State ◽  
Legal Order ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
International Court Of Justice ◽  
State Immunity ◽  
Court Of Justice ◽  
International Court ◽  
Constitutional Legitimacy

On October 22, 2014, the Italian Constitutional Court rendered a decision on the constitutional legitimacy of certain domestic norms that required Italy’s compliance with the rule on state immunity sanctioned by the International Court of Justice (ICJ) with the Judgment Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening). The Constitutional Court declared that the international customary obligations on state immunity from jurisdiction can be applied automatically within the Italian legal order only as long as they are in conformity with the fundamental rights contained in the Constitution.

Settlement of Disputes

2016 ◽  
Author(s):  
Denza Eileen
Keyword(s):  
General Rule ◽  
Vienna Convention ◽  
Diplomatic Relations ◽  
Criminal Proceedings ◽  
International Court Of Justice ◽  
National Courts ◽  
Optional Protocol ◽  
International Court ◽  
Diplomatic Immunity ◽  
Settlement Of Disputes

This chapter considers the Optional Protocol concerning the Compulsory Settlement of Disputes as discussed in the Vienna Convention on Diplomatic Relations. As a general rule, disputes over the interpretation or application of the Convention must be resolved speedily by the Ministry of Foreign Affairs and other authorities of the receiving State in determining whether criminal proceedings may be brought, by national courts when diplomatic immunity is pleaded, or by governments in deciding on whether a member of mission should be recalled or more generally on the level at which they wish to maintain diplomatic relations. According to the protocol, disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.

Final Clauses

2016 ◽  
Author(s):  
Denza Eileen
Keyword(s):  
United Nations ◽  
Secretary General ◽  
The Other ◽  
General Assembly ◽  
Vienna Convention ◽  
Diplomatic Relations ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Article 50

This chapter looks into Articles 48 to 53 of the Vienna Convention on Diplomatic Relations. Article 48 states that the Convention shall be open for signature by all States Members of the UN or any of the specialized agencies or Parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a Party to the Convention. Article 49 on the other hand states that the present Convention is subject to ratification, while Article 50 expresses that the Convention shall remain open for accession by any State. Article 51 enumerates the date of the enforcement of the ratifications submitted to the UN, and Article 52 states that the Secretary-General shall inform all States the deposit of instruments of ratification and the date of enforcement. Lastly, Article 53 states that the original texts of the Convention shall be deposited with the Secretary-General, who shall send certified copies thereof to all States.

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