9. Immunities from National Jurisdiction

2016 ◽  
Author(s):  
Martin Dixon ◽  
Robert McCorquodale ◽  
Sarah Williams
Keyword(s):  
International Law ◽  
International Organisations ◽  
Sovereign Immunity ◽  
State Immunity ◽  
The United Kingdom ◽  
Head Of State ◽  
National Jurisdiction ◽  
Per Se ◽  
Heads Of State ◽  
The Relationship

States and international organisations and their representatives in the courts of other States enjoy immunity from legal process. This immunity can be split conveniently into State (or sovereign) immunity, and diplomatic and consular immunities. The first concerns foreign States per se (including the Head of State), while the second concerns the personal immunities enjoyed by representatives of those States. This chapter discusses the general principles of state immunity in international law; state immunity in the United Kingdom; Heads of State and other holders of high-ranking office; the relationship between immunity and acts contrary to international law; the immunities of international organisations and their staff; and diplomatic and consular immunities.

II. Ex parte Pinochet: Lacuna or Leap?

1999 ◽  
Vol 48 (4) ◽  
pp. 949-958 ◽  
Author(s):  
Colin Warbrick ◽  
Dominic McGoldrick ◽  
Eileen Denza
Keyword(s):  
International Law ◽  
The State ◽  
European Convention ◽  
Private Law ◽  
Criminal Proceedings ◽  
Sovereign Immunity ◽  
State Immunity ◽  
House Of Lords ◽  
Domestic Courts ◽  
Heads Of State

The Lords were not lost in admiration of section 20 of the State Immunity Act 1978. Lord Browne-Wilkinson described it as “strange” and “baffling”. It is certainly true that (as Lord Browne-Wilkinson continued) “Parliament cannot have intended to give heads of state and former heads of state greater rights than they already enjoyed under international law”.1 Nor was it intended that their rights should be inadvertently curtailed. The State Immunity Bill originally introduced into the House of Lords in 1977 would, by reflecting in UK statute law the European Convention on State Immunity2 make huge inroads into absolute sovereign immunity—tottering but not yet demolished through the repeated onslaughts of Lord Denning. The European Convention was however “essentially concerned with ‘private law’ disputes between individuals and States”.3 It was not intended to have any application to criminal proceedings—in so far as lawyers in 1977 even contemplated criminal proceedings in domestic courts against foreign States in their public capacity. It did not deal with the personal privileges or immunities of heads of state. There were no ready-made treaty rules on heads of state and no clear customary rules either.4

II. State Immunity, Diplomatic Immunity and Act of State: A Triple Protection Against Legal Action?

1998 ◽  
Vol 47 (4) ◽  
pp. 950-958 ◽  
Author(s):  
Colin Warbrick ◽  
Dominic McGoldrick ◽  
J. Craig Barker
Keyword(s):  
International Law ◽  
Theoretical Basis ◽  
The Other ◽  
Legal Action ◽  
State Immunity ◽  
The United Kingdom ◽  
Civil Suit ◽  
Recent Developments ◽  
Diplomatic Immunity ◽  
The Relationship

The relationship between State immunity and diplomatic immunity has always been a rather complex one. The two concepts undoubtedly have a common juridical background in the form of the concepts of sovereignty, independence and dignity.1On the other hand, recent developments in both fields have seen a move towards a more functional-based approach. Thus, in relation to diplomatic immunity, the dominant theoretical basis is that of functional necessity.2As regards State immunity, recent developments in both international law3and, more particularly, in UK law4, from absolute to restrictive State immunity, have resulted in a more functionally orientated approach, that is, a shift of emphasis in matters of State immunity from immunityratione personaeto immunityratione materiae.5Now two recent cases in the United Kingdom have raised the possibility that, in the case of diplomats at least, the two concepts may be combined to provide a double immunity for diplomatic agents against civil suit. More controversially, the cases have raised the possibility of a third type of protection based upon immunityratione personaein what could be said to amount to a modified act of State doctrine. The cases in question arePropend Finance Pty Ltd. v. Alan Sing and The Commissioner of the Australian Federal Police6and Re P (Diplomatic Immunity: Jurisdiction).7

scholarly journals A CRITIQUE OF THE DEMISE OF HEADS OF STATE IMMUNITY IN THE AGE OF HUMAN RIGHTS

2018 ◽  
pp. 108-127
Author(s):  
SELMAN OZDAN
Keyword(s):  
Human Rights ◽  
International Relations ◽  
International Law ◽  
Critical Role ◽  
State Immunity ◽  
Head Of State ◽  
Jus Cogens ◽  
Heads Of State ◽  
Peremptory Norms

This paper presents an unspoken aspect of Head of State immunity, namely that such immunity is at odds with the expectation that international law should be applied to challenge resistance to and promote respect for human rights. It considers the question of whether Head of State immunity gives rise to de facto impunity in the case of violations of human rights recognised as peremptory norms (jus cogens) committed by such Heads of State. While this paper emphasises the critical role of Head of State immunity in the context of international relations, it argues that Heads of State should not exempt from punishment when violations of those human rights are at stake.

scholarly journals The Pinochet Judgement: New Accountability for Old Dictators

2001 ◽  
Vol 32 (2) ◽  
pp. 463
Author(s):  
Sarah L Murphy
Keyword(s):  
United Kingdom ◽  
New Zealand ◽  
Crimes Against Humanity ◽  
Sovereign Immunity ◽  
The United Kingdom ◽  
Head Of State ◽  
House Of Lords ◽  
International Obligations ◽  
Main Components ◽  
Heads Of State

This article analyses the groundbreaking 1999 judgment of the House of Lords on the question of the extradition of Pinochet from the United Kingdom to Spain for crimes committed during his time as Head of State of Chile. It examines the two main components of the judgment:  that Pinochet's status as former Head of State of Chile did not allow him to benefit from sovereign immunity for acts of torture committed during his reign; and that he could be extradited to Spain for acts of torture committed after 1989, when the United Kingdom codified its obligations under the Torture Convention.  It supports the conclusion that the laws against torture override the immunity of former Heads of State, and suggests that the reasoning could be extended to apply to other crimes against humanity, and where the accused is an incumbent Head of State.  On the question of extradition, it argues that the Law Lords had several avenues open under which Pinochet could have been extradited to face all counts of torture. It concludes with an analysis of the New Zealand legislation and case law on sovereign immunity, the prosecution of crimes against humanity, and extradition, and suggests several law reforms to bring New Zealand legislation in line with evolving international obligations to prosecute or extradite the perpetrators of crimes against humanity. 

Understanding Diplomatic and Consular Inviolability—Learning from the Jamal Khashoggi Tragedy

2021 ◽  
Vol 54 (1) ◽  
Author(s):  
Shannon Bosch
Keyword(s):  
International Law ◽  
State Responsibility ◽  
Legal Research ◽  
State Immunity ◽  
Head Of State ◽  
Growing Body

The tragic killing of Jamal Khashoggi in the Saudi Consulate in Turkey has once again exposed the potential for abuse of privileges afforded diplomatic and consular missions. This incident, which involves torture and murder, occurred at a time when there was, and still is, a growing body of international jurisprudence that demands accountability for breaches of international law. These trends have seen a dilution in head-of-state immunity and increased calls for state responsibility in such instances. Understanding and interpreting the 1961 Vienna Conventions on consular and diplomatic inviolability, in light of these trends, will help to retain their relevance, foster growing accountability, and prevent breaches of international law. This is a piece of doctrinal legal research.

Book III Privileges and Immunities, 12 Privileges and Immunities of the State, The Head of State, State Officials, and State Agencies

2016 ◽  
Author(s):  
Fox Hazel
Keyword(s):  
International Law ◽  
The State ◽  
Legal Person ◽  
State Agencies ◽  
General Description ◽  
Customary International Law ◽  
State Immunity ◽  
Head Of State ◽  
Written Form ◽  
The Law

This chapter provides an account of the immunities of the State, its officials, and state agencies in international law. It first offers a general description of the plea of state immunity and a brief historical account of the development of the law of state immunity. Then it briefly sets out the law relating to the immunities of the State itself as a legal person, followed by the law applicable to its officials and to state agencies. In addition an account based on customary international law will be provided on the immunities of senior state officials. The chapter concludes by taking note of the extent to which the practice of diplomatic missions at the present time accords with requirements of state immunity law as now set out in written form in the 2004 UN Convention on the Jurisdictional Immunities of States and their Property.

The Economic Community of West African States and International Law

1989 ◽  
Vol 27 (2) ◽  
pp. 233-250 ◽  
Author(s):  
Sunday Babalola Ajulo
Keyword(s):  
World War Ii ◽  
International Law ◽  
Sierra Leone ◽  
West African ◽  
Cape Verde ◽  
Economic Community ◽  
World War ◽  
International Organisations ◽  
Legal Personality ◽  
Heads Of State

The Economic Community of West African States (Ecowas) was established by the Treaty signed in Lagos on 25 May 1975 by the Heads of State and Government (or their representatives) from Benin, Burkina Faso, Côte d'Ivoire, The Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Mauritania, Niger, Nigeria, Senegal, Sierra Leone, and Togo. They were joined a few months later by Cape Verde, thereby increasing the number of member-states to 16. Following the post-World War II convention whereby international organisations formally insert in their constitutive instruments a declaratory statement concerning their status, it is not surprising that Article 60(1) stipulated that the Community ‘shall enjoy legal personality’. Although such organisations may be similar they are never identical, and this is why the nature and scope of the legal personality of each needs to be ascertained and discussed.

Are Emirate Rulers Immune from Civil Suits in English Courts?

2013 ◽  
Vol 27 (2) ◽  
pp. 97-124
Author(s):  
Lucas Bastin
Keyword(s):  
International Law ◽  
Federal Government ◽  
United Arab Emirates ◽  
Abu Dhabi ◽  
State Immunity ◽  
Head Of State ◽  
Political Roles

Abstract This article considers whether the rulers of the seven United Arab Emirates are immune from civil suits before English courts. It commences by summarising the constitutional structure of the UAE and political roles which the Emirate rulers play within its federal government, before setting out the relevant English and international law of State and head of State immunity. Having explained this background, this article assesses the position of each ruler and concludes that the rulers of Abu Dhabi and Dubai are immune from civil suits before English courts but that the rulers of Sharjah, Ra’s al-Khaimah, Fujairah, Umm al-Qaiwain and Ajman are less likely to attract immunity.

scholarly journals THE OBLIGATION TO PROSECUTE HEADS OF STATE UNDER THE ROME STATUTE OF THE INTERNATONAL CRIMINAL COURT (ICC) AND CUSTOMARY INTERNATIONAL LAW: THE AFRICAN AND U.S. PERSPECTIVES

2019 ◽  
Vol 7 (1) ◽  
pp. 33-56
Author(s):  
Fareed Mohd Hassan ◽  
Noor Dzuhaidah Osman
Keyword(s):  
International Law ◽  
Rome Statute ◽  
The United States ◽  
Trial Chamber ◽  
Criminal Court ◽  
Criminal Prosecution ◽  
Customary International Law ◽  
Head Of State ◽  
Jus Cogens ◽  
Heads Of State

The United States (U.S.), a Signatory, but not a State Party to the Rome Statute, entered into various Bilateral Agreements (BIAs) with almost all State Parties to the Rome Statute prohibiting the arrest, surrender, or prosecution of the US Head of State before the International Criminal Court (ICC). Similarly, the African Union (AU) Members, being the majority State Parties to the Rome Statute have decided in the AU Assembly of Heads of State and Government not to cooperate with the ICC and to grant immunity to African Heads of State after the ICC Pre-Trial Chamber issued two arrest warrants against the Sudanese President for allegedly committing genocide, crimes against humanity and war crimes. This paper examines the tension between States’ obligations under the Rome Statute to prosecute, surrender and arrest a head of State, including when referred to by the UN Security Council on the one hand, and the AU decision, the U.S. BIAs and customary international law which grants immunity to a sitting head of State from criminal prosecution by either an international or a foreign court on the other hand. It argues that States are bound by the obligations enshrined under the Rome Statute and both the AU decision and the BIAs are inconsistent with the duty of states to uphold jus cogens norms including those proscribed under the Rome Statute

Part I Context, Challenges, and Constraints, 4 The ICC and the AU

2015 ◽  
Author(s):  
Maunganidze Ottilia Anna ◽  
du Plessis Anton
Keyword(s):  
Human Rights ◽  
African Countries ◽  
International Crimes ◽  
State Immunity ◽  
Court Of Justice ◽  
Head Of State ◽  
Political Background ◽  
The Impact ◽  
The Relationship

The relationship between the ICC and the AU has become a frequent bone of contention. The impact is naturally political, but it has also had an appreciable influence on ICC practice. This chapter analyses the legal and political background to the persistent disagreement, including the origin and foundation of divergent positions, such as, for instance, on head of state immunity and cooperation duties. It cautions against an oversimplification of ‘African’ views while also highlighting the progress made by some African countries in investigating, prosecuting, and adjudicating international crimes. It further examines the proposed expansion of the African Court of Justice and Human Rights’ jurisdiction to deal with serious crimes, including international crimes, and the implications thereof.

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