Recent Developments of International Law Commission Work on Immunity of State Officials from Foreign Criminal Jurisdiction

Immunity is a well bedded concept within international law and mainly within the principle of sovereign equality of states. There are different procedural implications of the concept of immunity – diplomatic and consular privileges and immunities, State jurisdictional immunities and also immunity of State officials from foreign criminal jurisdiction. The Article focuses on the latter one and portrays on recent developments of immunity of State officials from foreign criminal jurisdiction as it is elaborated by the UN International Law Commission (‘ILC’). The author frames (in the introduction) the concept of immunity and especially the immunity of State officials and puts it in a large theoretical structure of international law and in the work of ILC. Then, he focuses his attention on the phenomenon of progressive development of international law (2) and how it is used with respect to the topic considerated by the ILC. He then presents main ILC conclusions regarding limitations and exceptions to immunity of State officials (3) and finally outlines latest development (4) of the ILC work dealing mainly with relationship between foreign criminal jurisdiction and international criminal jurisdiction and other procedural questions.

The Arbitral Award in the Enrica Lexie Case and its Questionable Recognition of Functional Immunity to the Italian Marines Under Customary International Law

The dispute between Italy and India on the Enrica Lexie incident has finally been decided by the Award handed down on 21 May 2020 by the Arbitral Tribunal to which the Parties had referred the case. After having concluded that it had jurisdiction on the issue of the immunity of the two Italian marines involved in the case at hand, the majority judgment (by three votes to two) affirmed that under customary international law the latter enjoyed functional immunity from the criminal jurisdiction of India. This article will argue that the Arbitral Tribunal’s conclusions are unconvincing, first and foremost, considering that, based on State practice, it is not possible to affirm without reservations that a settled customary rule exists under international law conferring immunity to all State officials, and regardless of the type of functions they perform. In fact, immunity has often been recognized as applying only to certain categories of State officials, and on the basis of the governmental nature of the functions they perform on behalf of the State. Given the doubtful existence under customary international law of a clear rule establishing the functional immunity of all State officials, for all the acts performed in the exercise of their functions, this article argues that the Arbitral Tribunal should have firstly ascertained the existence of a specific customary rule on the immunity of the military abroad, together with the exact content of such rule and, secondly, whether this was applicable in the case of the Enrica Lexie. As current practice stands, military forces abroad are entitled to immunity only under specific circumstances, which do not seem to occur in the present case. In particular, this article maintains that the Italian marines were not entitled to functional immunity. While the acts they performed did indeed fall within their typical functions, they were exercised on behalf of a private subject and not on behalf of the Italian State.

Functional Immunity of the Marines on the Enrica Lexie: A Reply To Raffaella Nigro

This article is a short reply to Raffaella Nigro’s assessment of the Arbitral Tribunal award in the Enrica Lexie case. Professor Nigro analyzes the rule of functional immunity of State officials from foreign criminal jurisdiction and argues that it cannot be applied to the two marines, even supposing that military personnel are covered by such a rule. Professor Nigro bases this conclusion on the facts that the marines were stationed on a commercial vessel and were servicing the interests of the private shipowner. In reply, this author reaffirms the existence of a rule of customary international law on functional immunity and argues that military personnel assigned to commercial vessels are carrying out these duties in order to protect Italian interests and contribute to the defeat of piracy. Therefore, the marines on board the Enrica Lexie were (and still remain) under the protection of the rule on immunity from foreign criminal jurisdiction.

A new criminal jurisdiction to combat cross-border money laundering

Purpose The purpose of this study is to analyze the emergence of the changing face of criminal jurisdiction in dealing with cross-border money laundering that develops dynamically due to the development of globalization. Design/methodology/approach This research was a doctrinal legal research using conceptual approach concerning the very strict principle of territorial jurisdiction in criminal law. This study also used case approach related to the application of extraterritorial jurisdiction and long-arm jurisdiction in some cross-border money laundering cases. The collection of legal materials was carried out through literature as well as case study and was analyzed qualitatively based on data reduction, presentation and concluding. Findings This study revealed that territorial jurisdiction which was originally strictly enforced by state sovereignty over crimes that occurred in its territory then changed widely with multi-territorial perspective. Because of its condition, the state then expands its authority to deal with money laundering as a cross-border crime involving more than one territorial state, namely, by using extraterritorial jurisdiction and then developed into a long-arm jurisdiction trend that allows state authorities to prosecute foreigners outside its state boundaries. Originality/value The research finding can be used as one of the alternatives by countries to break the territorial jurisdiction in combating the cross-border money laundering.

Transnational Criminal Courts

Sara Wharton and Robert J Currie examine the various failed or not fully realized attempts to establish an alternative to national criminal jurisdiction over transnational crimes, in the shape of various different models of transnational criminal court. They range from the mixed commissions against slavery in the 19th century to the criminal chamber of the African Court sketched out in the Malabo Protocol. A variety of reasons appear to drive these initiatives but they have one thing in common—an incapacity within the current system to deal with certain kinds of transnational crime at all or in a politically acceptable manner.

A Short History of Jurisdiction in Transnational Criminal Law

Florian Jeßberger explores the development of criminal jurisdiction in multilateral suppression conventions. He identifies general trends, such as extension, specification and standardization, and shows that suppression conventions oscillate between simple replication of firmly settled bases of jurisdiction and integration of innovative, typically subject-matter-specific bases, often pushing the boundaries of the established law of criminal jurisdiction. He also points to the repercussions of jurisdictional rules in transnational criminal law on the ambit of domestic criminal law, by (as treaty practice) shaping the permissive rules under customary international law which limit domestic authority to punish.

The Criminal Jurisdiction and Applicable Law concerning the Fu Yuan Yu Leng 999 Case

On 13 August 2017, a Chinese-flagged carrier vessel, Fu Yuan Yu Leng 999, entered the Galapagos Marine Reserve (gmr) without giving appropriate notice, on the captain’s explanation that he entered the area to shelter the vessel from strong winds. Ecuadorian naval aircraft and a coastguard ship began to pursue the vessel from the internal waters and it was intercepted within the territorial sea. This area belongs to the new marine sanctuary of the gmr, where high levels of protection are implemented, and all fishing activities are prohibited. This incident reflects that, as the world’s largest distant-water fisheries (dwf) nation, much more needs to be done by China to crack down on illegal, unreported and unregulated (iuu) fishing and to promote the orderly development of dwf.