The Law of State Immunity

2015 ◽  
Author(s):  
Fox Hazel ◽  
Webb Philippa
Keyword(s):  
High Profile ◽  
International Crimes ◽  
National Courts ◽  
State Immunity ◽  
Recent Developments ◽  
The Law ◽  
Extraterritorial Jurisdiction ◽  
Universal Civil Jurisdiction ◽  
International Rule ◽  
Relevant Material

Revised and updated to include recent developments since 2013, this new edition provides a detailed guide to the operation of the international rule of State immunity which bars one State's national courts from exercising criminal or civil jurisdiction over claims made against another State. Building on the analysis of its two previous editions, it reviews relevant material at both international and national levels with particular attention to US and UK law; the 2004 UN Convention on Jurisdictional Immunities of the State and its Property (not yet in force), and also seeks to assess the significance of recent changes in the evolution of the law. Although the restrictive doctrine of immunity is now widely observed by which foreign States may be sued in national courts for their commercial transactions, the immunity rule remains controversial, not only by reason of the recognition of a single State's right to deny a remedy for a wrong — China, a major trading State, continues to adhere to the absolute bar — but also by the exclusion of any reparation or relief for the commission on the orders of a State of grave human rights violations. The complexity and moral challenge of the issues is illustrated by high profile cases. The expanding extraterritorial jurisdiction of national courts with regard to torture in disregard of pleas of act of State and nonjusticiability offers a further challenge to the exclusionary nature and continued observance of State immunity. Recent developments in key areas are examined, including: impleading; public policy and non-justiciability; universal civil jurisdiction for reparation for international crimes; the application of the employment exception to embassies and diplomats; immunity from enforcement and procedural measures; immunity of State officials, and tensions between national constitutional requirements and superior international norms.

Part II The Sources of the Law of State Immunity, 6 The Restrictive Doctrine of State Immunity: Its Recognition in State Practice

2015 ◽  
Author(s):  
Fox Hazel ◽  
Webb Philippa
Keyword(s):  
Civil Law ◽  
National Courts ◽  
State Immunity ◽  
The Us ◽  
State Practice ◽  
History Of ◽  
General Recognition ◽  
The Law ◽  
The Uk ◽  
International Law Commission

This chapter recalls the history of the law of State immunity through the decisions of the national courts in both common and civil law jurisdictions and recounts the general recognition in common and civil law jurisdictions of the restrictive doctrine as well as its adoption by national legislation in 1976 in the US (the Foreign Sovereign Immunities Act 1976 (FSIA)) and in 1978 in the UK (the State Immunity Act 1978 (SIA)) followed by similar legislation in some Commonwealths and other countries. The conclusion drawn from State practice in surveys conducted by the International Law Commission (ILC) and the Council of Europe is that there is wide and ever increasing support for a restrictive doctrine of immunity.

La sentenza della Corte internazionale di giustizia relativa al caso Germania c. Italia: profili di diritto intertemporale

2012 ◽  
pp. 335-349
Author(s):  
Fabrizio Marongiu Buonaiuti
Keyword(s):  
World War Ii ◽  
International Law ◽  
The State ◽  
State Responsibility ◽  
World War ◽  
International Crimes ◽  
State Immunity ◽  
The Icj ◽  
The Law ◽  
Jus Cogens

The author comments on the judgment delivered by the ICJ on 3rd February 2012 in the case of Germany v. Italy, concerning jurisdictional immunity of the State against actions for compensation in respect of crimes committed during World War II. The article focuses on the intertemporal law aspects of the case, commenting that the ICJ, while correctly identifying State immunity rules as having a procedural nature, failed in clarifying that whenever their application requires a qualification of the relevant facts, this is to be performed pursuant to the law in force at the time they were committed. Arguably, at the time of the conflict, the category of jus cogens norms had not yet been sufficiently established, nor had a special regime of State responsibility for international crimes or for serious breaches of peremptory rules of general international law developed yet. Therefore, the supposed prevalence of the breached norms on State immunity rules, which the ICJ has correctly excluded due to the different nature of either set of rules, arguably was to be excluded for intertemporal reasons altogether.

Jurisdictional Immunities of States and International Organizations

2018 ◽  
Author(s):  
Edward Chukwuemeke Okeke
Keyword(s):  
International Organizations ◽  
International Courts ◽  
National Courts ◽  
State Immunity ◽  
International Legal Order ◽  
The Law ◽  
Diplomatic Immunity ◽  
Heads Of State ◽  
The Relationship ◽  
Conceptual Confusion

This book covers the relationship between the jurisdictional immunities of States and international organizations, addressing their similarities and dissimilarities. Their relationship with diplomatic immunity is also examined. It considers that the immunity of international organizations was historically conceived in terms of diplomatic immunity and State immunity. The major aim of this book is to clarify the conceptual confusion that has often bedeviled the understanding of the law of the (different but interrelated) jurisdictional immunities of both States and international organizations. The approach is to holistically analyze and synthesize select and relevant opinions of international courts and national courts. To achieve this, the book focuses more on what the law is than on what it should be. An understanding of the law is more useful to a practitioner than a criticism of it. The book is not an exegesis on everything immunity. The distinct jurisdictional immunities of heads of State and of diplomats are beyond the scope of this book, and are only tangentially examined. The book concludes by making the case that the jurisdictional immunities of States and international organizations are not only sustainable but also necessary for the international legal order to foster international relations and cooperation. The author intends to position the book to be of use both to scholars and to practicing lawyers and legal advisers in government and international organizations, as well as to lawyers whose practice concerns issues and laws of privileges and immunities.

Introduction

2015 ◽  
Author(s):  
Fox Hazel ◽  
Webb Philippa
Keyword(s):  
International Relations ◽  
International Law ◽  
The State ◽  
State Immunity ◽  
Recent Developments ◽  
The Absolute ◽  
The Law

The Introduction begins by defining the law of State immunity. The law of State immunity relates to the grant in conformity with the international law of immunities to States to enable them to conduct effective public functions and to the representatives of States to secure the correct conduct of international relations. The Introduction goes on to define the plea of immunity and outlines the functions which state immunity serves. It proceeds to examine the sources of the law of State immunity and looks in detail at recent developments in this. The Introduction then presents the three models on which immunity is based. These are: the absolute doctrine (the independence of the State), the restrictive doctrine, and immunity as a procedural plea. Finally, it outlines the structure of the rest of the book.

Should the 2004 un State Immunity Convention serve as a model/starting point for a future un Convention on the Immunity of International Organizations?

2014 ◽  
Vol 10 (2) ◽  
pp. 319-331
Author(s):  
Philippa Webb
Keyword(s):  
United Nations ◽  
Rule Of Law ◽  
International Organizations ◽  
State Immunity ◽  
Starting Point ◽  
Draft Convention ◽  
United Nations Convention ◽  
The Law ◽  
International Rule

This paper argues that the 2004 United Nations Convention on Jurisdictional Immunities of States and their Property should not serve as a model for a new convention with regard to international organizations. It has been suggested that there would be some advantages in preparing a draft convention on the jurisdictional immunity of international organizations: it would make the law governing the immunities of international organizations more ‘easily ascertainable’; a convention would progressively develop the law; and it would make a useful counterpart and parallel convention to the 2004 convention. However, this paper contends that each of these reasons — while appealing from the perspective of harmonization and a notion of an accessible and predictable international ‘rule of law’ — does not overcome the problems of principle, practice and precedent. However, the immunities afforded to State officials may have greater value as a model for the immunities of officials of international organizations.

PUBLIC INTERNATIONAL LAW: I. IMMUNITY AND INTERNATIONAL CRIMES IN ENGLISH LAW

2004 ◽  
Vol 53 (3) ◽  
pp. 769-774 ◽  
Author(s):  
Colin Warbrick
Keyword(s):  
International Law ◽  
English Court ◽  
Public International Law ◽  
International Crimes ◽  
State Immunity ◽  
English Law ◽  
The Law

The texts of two brief judgments by district judges at Bow Street are reproduced below. In each case, an application was made for proceedings against a serving foreign official to answer allegations in England of conduct which constituted crimes against international law which were within the jurisdiction of the English court, even though committed abroad and by non-UK nationals. In each case, the judge decided that the official was protected by the law of State immunity rationae personae against the proceedings and the applications were dismissed.

UN Convention on State Immunity: Form and Function

2006 ◽  
Vol 55 (2) ◽  
pp. 407-410 ◽  
Author(s):  
Richard Gardiner
Keyword(s):  
International Law ◽  
Customary Law ◽  
Vienna Convention ◽  
Form And Function ◽  
National Courts ◽  
State Immunity ◽  
Adoption And Implementation ◽  
The Law ◽  
And Function ◽  
Number Of Parties

The eventual product of the International Law Commission's (ILC) work on state immunity hasbeen in the form of a Convention. This prompts the question whether widespread ratification (or accession etc) will be necessary for clear rules of international law on state immunity to become firmlyestablished or whether a substantial codifying effect could be achieved even if the Convention does not attract a great number of parties. The latter has sometimes been said of much of the Vienna Convention on the Law of Treaties. As the law on state immunity has undergone much of its substantial development by practice of national courts (albeit that the piecemeal adoption and implementation of treaties has played some part), could this process not simply continue with the Convention providing guidance or a model? If the trend from absolute to restrictive immunity could occur by development of customary law, are there not still adequate means of consolidating customary law without the need for states actually to become parties to the treaty?

National Courts Step Up

2020 ◽  
pp. 265-314
Author(s):  
Beth Van Schaack
Keyword(s):  
Criminal Court ◽  
The European Union ◽  
Criminal Cases ◽  
Sources Of Resistance ◽  
International Crimes ◽  
National Courts ◽  
Domestic Courts ◽  
Penal Codes ◽  
Perpetrators And Victims ◽  
Extraterritorial Jurisdiction

Following the discussion of the options for invoking the International Criminal Court (ICC) or creating a new international institution to address the crimes in Syria, chapter 7 explores the potential for domestic courts to fill this impunity gap. Principles of complementarity, including the incorporation of international crimes into the world’s domestic penal codes, have contributed to the emergence of more empowered and aggressive domestic courts when it comes to the prosecution of grave crimes of international concern. The chapter demonstrates the way in which classic principles of domestic criminal jurisdiction—territoriality, effects, nationality (active and passive), protective, and universal jurisdiction—could all be, and are all being, activated to address the presence of perpetrators and victims found outside the Syrian battlespace. This chapter offers a taxonomy of the criminal cases proceeding to date in domestic courts around the world, some involving the state’s own nationals, some involving perpetrators found within the territorial state, and some proceeding in various ways while the defendant is still in absentia. This chapter offers explanations for the developments afoot within states—and the European Union in particular—that have enabled domestic courts to emerge as the most promising venue for justice. While compiling a number of overarching observations about this collection of cases, the chapter also acknowledges their inherent limitations, in general and when it comes to Syria in particular, as well as sources of resistance to the expansion of these forms of extraterritorial jurisdiction.

12. Immunities Enjoyed by Officials of States and International Organizations

2018 ◽  
Author(s):  
Chanaka Wickremasinghe
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Criminal ◽  
Diplomatic Relations ◽  
Individual Rights ◽  
International Crimes ◽  
Judicial Decisions ◽  
International Criminal Tribunals ◽  
Recent Developments ◽  
Extraterritorial Jurisdiction

This chapter examines the immunities enjoyed by various categories of officials of States and international organizations. It identifies jurisdictional immunity as one of the key legal techniques by which diplomatic relations and, more broadly, international relations and cooperation can be maintained. It recognises that recent developments in international law have increasingly required that immunities be scrutinised and justified, particularly where they impact on individual rights. Among the most striking of such challenges to immunities are those that have arisen in relation to measures which seek to bring an end to the impunity of persons who commit the most serious international crimes, including measures such as the development of extraterritorial jurisdiction and the establishment of international criminal tribunals. A range of judicial decisions is reviewed in order to determine how international law has attempted to reconcile such conflicting priorities in this respect.

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