Journal articles: 'International law and State immunity'

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McGregor, Lorna. "State Immunity Jus Cogens." International and Comparative Law Quarterly 55, no. 2 (April 2006): 437–46. http://dx.doi.org/10.1093/iclq/lei091.

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The General Assembly first proposed that the International Law Commission look into the issue of state immunity in 1977. As State immunity, by its very nature, sits at the interface between traditional and contemporary notions of international law, the span of the negotiations over three decades inevitably exposed the resulting Convention to gaps and inconsistencies with evolving areas of international law. In 1999 the International Law Commission established a Working Group on Jurisdictional immunities of States and their property,

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Mihandoost, Fatemeh. "Immunity of International Organizations from the Perspective of International Law." Journal of Politics and Law 9, no. 1 (February 28, 2016): 41. http://dx.doi.org/10.5539/jpl.v9n1p41.

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<p>The purpose of this study is to identify the international immunity and its type. We also sought to evaluate the immunity of international organizations from the perspective of international law in this study. International organizations have immunity in the implementation of their programs and tasks. In fact, one of the principles of public international law is immunity that prevents the presence of a foreign state in state courts. In some cases, there is a possibility of cancellation of immunity and in other cases withdrawal of immunity is derived from a political mission. These cases include accepting to solve the commercial dispute through arbitration because contrary to the authority of the state judge, judgment to address the dispute is not one of the government figures; therefore, government summoned to court of arbitration is not considered as a violation of state sovereignty. In practice, immunity has changed over the time. In other words, immunity has been modified over time. Research method used in this article is a review of the literature and interviews with experts who examine and compare the rules and regulations and the existing notes at home and abroad, about the immunity of international organizations. In the current situation, international general discipline is contrary to this subject that the government or organization holding immunity, while being aware of that, definitely accepts the condition of turning to a referee, which attracts the other party’s confidence, and then refers to immunity in some stage of inspection or while implementing the sentence. The legal concept of immunity, in general, is the sense that its owner is immune from prosecution, law enforcement, and government officials and they will not be able to chase the holder of such immunity.</p>

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Mora, Paul David. "Xiaodong Yang,State Immunity in International Law." Journal of International Criminal Justice 14, no. 1 (February 10, 2016): 229–30. http://dx.doi.org/10.1093/jicj/mqw005.

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Yang, Xiaodong. "STATE IMMUNITY OUTSIDE THE STATE IMMUNITY ACT." Cambridge Law Journal 60, no. 1 (March 2001): 1–58. http://dx.doi.org/10.1017/s000819730165061x.

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IS the State Immunity Act 1978 the sole basis for deciding on State immunity? It is and it is not. This seemingly self-contradictory reply is due to the fact that, on the one hand, any proceedings directly or indirectly against a foreign State must be brought under the 1978 Act while, on the other, certain provisions of that Act might paradoxically render the Act itself inapplicable and therefore entail recourse to rules outside the Act for settling the issue of State immunity. This is amply illustrated by the decision of the House of Lords in Holland v. Lampen-Wolfe [2000] 1 W.L.R. 1573, which involved a claim for defamation brought by a US university professor teaching international relations at a US military base in England as part of an education programme provided by her university under a commercial agreement with the US Government. The claim was brought against the education services officer at the base, who had written a memorandum listing serious complaints about the plaintiff’s performance and questioning her professional competence. The US Government claimed immunity on the defendant’s behalf.

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Warbrick, Colin. "PUBLIC INTERNATIONAL LAW: I. IMMUNITY AND INTERNATIONAL CRIMES IN ENGLISH LAW." International and Comparative Law Quarterly 53, no. 3 (July 2004): 769–74. http://dx.doi.org/10.1093/iclq/53.3.769.

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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.

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Lord Lloyd-Jones. "FORTY YEARS ON: STATE IMMUNITY AND THE STATE IMMUNITY ACT 1978." International and Comparative Law Quarterly 68, no. 2 (April 2019): 247–69. http://dx.doi.org/10.1017/s0020589319000125.

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AbstractThis article addresses some of the changes in international law and foreign relations law which have impinged on the operation of the State Immunity Act 1978 in the first 40 years of its operation and some of the ways in which it has been supplemented by judicial decisions. It addresses, in particular, the initial need for legislation in this field, the circumstances in which agents of a State may be entitled to immunity, the relationship between State immunity in domestic law and Article 6 of the European Convention on Human Rights and Article 47 of the EU Charter of Fundamental Rights, the relationship of State immunity and rules of jus cogens, and the respective scope of State immunity and principles of non-justiciability.

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Karagiannakis, Magdalini. "State Immunity and Fundamental Human Rights." Leiden Journal of International Law 11, no. 1 (March 1998): 9–43. http://dx.doi.org/10.1017/s0922156598000028.

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Should state immunity from jurisdiction be denied to states that violate fundamental human rights in breach of international law? This article critically discusses three analytical approaches which can be used to answer the question at the level of international law. These approaches are derived from a review of principles of state immunity and fundamental human rights, including ius cogens. The article goes on to examine why the results dictated by these approaches at the level ot international law may not be reflected by municipal legal systems, using US domestic statutes and case law as an example of how a domestic legal system has dealt with this question.

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O’Keefe, Roger. "The European Convention on State Immunity and International Crimes." Cambridge Yearbook of European Legal Studies 2 (1999): 507–20. http://dx.doi.org/10.1017/s1528887000003487.

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The European Convention on State Immunity provides for the immunity of states and their organs from the domestic courts of the respective Contracting States. In doing so, it makes no apparent distinction between those courts’ civil and criminal jurisdictions. Yet the vexed question of the immunity of state officials from the latter, especially in respect of crimes established under international law, has been spectacularly brought to the fore by the Pinochet case. It is on this question—the immunity of individual state officials from the criminal jurisdiction of foreign states specifically in respect of international crimes—that this article focuses.

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Milisavljevic, Bojan. "State immunity in international law: Overview of the work of the international law commission." Nauka, bezbednost, policija, no. 1 (2014): 21–31. http://dx.doi.org/10.5937/nbp1401021m.

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Kang, Woohyun. "Employment and State Immunity ‒ Focusing on the Relationship between State Immunity and International Human Rights Law ‒." Korea International Law Review 53 (June 30, 2019): 65–102. http://dx.doi.org/10.25197/kilr.2019.53.65.

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Akhtar, Zia. "Act of State, state immunity, and judicial review in public international law." Transnational Legal Theory 7, no. 3 (July 2, 2016): 354–82. http://dx.doi.org/10.1080/20414005.2016.1225358.

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12

Longobardo, Marco. "State Immunity and Judicial Countermeasures." European Journal of International Law 32, no. 2 (April 23, 2021): 457–84. http://dx.doi.org/10.1093/ejil/chab013.

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Abstract This article explores whether domestic courts can deny jurisdictional immunity of a state as a countermeasure. The article offers a survey of state practice that, according to some scholars, would support this argument, demonstrating that the corresponding practice is scarce, and that relevant domestic legislation denying jurisdictional immunity is not adopted as a countermeasure. Typically, countermeasures are adopted by political organs, which are responsible for the state’s international relations and which can assess what is a lawful response to a violation of international law. Domestic courts are not entitled to adopt countermeasures without the involvement of the executive organs that are competent for the international relations of the state. This article demonstrates that a domestic court’s denial of sovereign immunity as a countermeasure is unlawful without a prior determination of the government, and it is highly impractical when that determination is provided.

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Weatherall, Thomas. "Inviolability Not Immunity." Journal of International Criminal Justice 17, no. 1 (March 1, 2019): 45–76. http://dx.doi.org/10.1093/jicj/mqz011.

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Abstract Recent proceedings involving former Sudanese President Omar Al-Bashir have highlighted a novel intersection of international and domestic law: the domestic execution of international arrest warrants for an incumbent high state official. While the overwhelming trend over the past decade has been for international and domestic courts to analyse this issue from the perspective of immunity, that approach is not sufficient. The domestic execution of an international arrest warrant presents a question of inviolability, not immunity. Although the immunity and inviolability enjoyed by incumbent high state officials under customary international law often apply coextensively, the two doctrines are distinct in function and scope. While immunity precludes the exercise of jurisdiction by a foreign court, it is inviolability that operates as a privilege from physical interference by domestic authorities. The arrest and surrender of incumbent high state officials is likely to persist as both an objective and a challenge for international courts. If they are to succeed in this regard, international courts must account for why the privilege of inviolability does not bar the execution of international arrest warrants.

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Jalalian, Askar, and Zohreh Moradi. "Analysis on Principle of Sovereign Judicial Immunity in Municipal Courts in International Laws." International Letters of Social and Humanistic Sciences 30 (June 2014): 1–7. http://dx.doi.org/10.18052/www.scipress.com/ilshs.30.1.

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In this article principle of sovereign judicial immunity, developments and changes on this principle and change of principle of immunity from absolute to limited have been studied. Judicial immunity of foreign state in municipal courts is of the most important issues in international and national law. Judicial immunity in national law is a special situation which immunes holders from prosecution and exercising legal punishments and disturbance of government officials and international judicial immunity contains mentioned characteristics in international arena. Immunity isone of the principles of general international law which prevents summoning of a foreign state to municipal state courts. Absolute immunity which was considered as a dominant method in early 20th century gradually changed to limited immunity doctrine according which, acknowledger state has nocommitment about granting immunity to exercise incumbency of state and exercising limitedimmunity would lead to sovereignty exercise.

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15

Tiwari, Ayush. "Extent of Functional Immunity Granted to State Officials." Christ University Law Journal 8, no. 1 (January 1, 2019): 81–102. http://dx.doi.org/10.12728/culj.14.4.

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Being a part of the international community has greatly altered the relations between different states. This article will focus on the concept of diplomatic immunity, and, specifically, functional immunity provided to state officials in the realm of international law. A thorough insight into the Vienna Convention regarding Diplomatic Immunity has furthered the scope of present research. Furthermore, a line of distinction is drawn between personal and functional Immunity. This paper will also take a look into the assumptions relating to functional immunity within international law and also evaluate its doctrinal approaches. Additionally, the legal ambit of the official Act, the importance for states to recognize functional immunity is also discussed. This article will not only talk about provisions established in law but also the customs which are adopted in relation to the functioning of rationemateriae. The possibility of weighing functional immunity alongside the states’ civil and criminal jurisdiction is also evaluated in the concluding part.

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Mora, Paul David. "Jurisdictional Immunities of the State for Serious Violations of International Human Rights Law or the Law of Armed Conflict." Canadian Yearbook of international Law/Annuaire canadien de droit international 50 (2013): 243–87. http://dx.doi.org/10.1017/s0069005800010857.

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SummaryIn its recent decision in Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), the International Court of Justice (ICJ) held that Italy had failed to respect immunities enjoyed by Germany under international law when the Italian courts allowed civil actions to be brought against Germany for alleged violations of international human rights law (IHRL) and the law of armed conflict (LOAC) committed during the Second World War. This article evaluates the three arguments raised by Italy to justify its denial of immunity: first, that peremptory norms of international law prevail over international rules on jurisdictional immunities; second, that customary international law recognizes an exception to immunity for serious violations of IHRL or the LOAC; and third, that customary international law recognizes an exception to immunity for torts committed by foreign armed forces on the territory of the forum state in the course of an armed conflict. The author concludes that the ICJ was correct to find that none of these arguments deprived Germany of its right under international law to immunity from the civil jurisdiction of the Italian courts.

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17

Byers, Michael. "State Immunity: Article 18 of the International Law Commission' Draft." International and Comparative Law Quarterly 44, no. 4 (October 1995): 882–93. http://dx.doi.org/10.1093/iclqaj/44.4.882.

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18

Bröhmer, Jürgen. "Diplomatic Immunity, Head of State Immunity, State Immunity: Misconceptions of a Notorious Human Rights Violator." Leiden Journal of International Law 12, no. 2 (June 1999): 361–71. http://dx.doi.org/10.1017/s0922156599000151.

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This decision of the House of Lords is significant because it is the first decision of a major court of an important country refusing to grant a former head of state immunity from adjudication in the context of alleged gross violations of human rights. It is shown that state immunity, diplomatic immunity and head of state immunity are to be distinguished and the rules pertaining to head of state immunity are explained. Whereas the author agrees with the result of Lords' decision, he disagrees with the reasoning because the majority circumvented the immunity question by artificially qualifying the alleged human rights violations of General Pinochet as private acts.

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Mushoriwa, Linda. "The Immunity Question before the International Criminal Court: Revisiting African Sovereignty and the Colonial Origins of International Law." African Journal of International and Comparative Law 29, no. 3 (August 2021): 341–61. http://dx.doi.org/10.3366/ajicl.2021.0370.

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This article discusses the contentious issue of Head of State of immunity before the International Criminal Court (ICC) in the context of the historical link between the colonial confrontation of the nineteenth century and the development of the doctrines of state sovereignty and immunity. It examines the philosophical underpinnings of the immunity in international criminal law debate and concludes that a clear understanding of the role that colonialism played in the development of international law is pivotal to understanding the concerns raised by the African Union and individual African leaders regarding the indictment of African leaders by the ICC.

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Bakircioglu, Onder. "Germany v Italy: The Triumph of Sovereign Immunity over Human Rights Law." International Human Rights Law Review 1, no. 1 (2012): 93–109. http://dx.doi.org/10.1163/22131035-00101002.

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This article analyses the doctrine of State immunity within the context of the recent judgment of the International Court of Justice (ICJ) concerning the Jurisdictional Immunities of the State (Germany v Italy: Greece intervening). The object of this article is to explore the implications of the State immunity from foreign judicial proceedings in cases of jus cogens crimes. Challenging the assumption that the law of immunity is merely procedural in nature, this article argues that there can be no immunity in cases of undisputed international crimes.

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Ivanova, Tatyana N. "IMMUNITY OF THE STATE IN THE INTERNATIONAL PRIVATE TRANSPORT LAW: COMPARATIVE LEGAL STUDY." Public international and private international law 6 (October 29, 2020): 23–26. http://dx.doi.org/10.18572/1812-3910-2020-6-23-26.

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This article is a study of issues of state immunity in international private transport law. The article as a whole is of an overview nature and will be useful for further research in this area. The author explores the legal regulation of the issue in countries such as Germany, Spain, Hong Kong, North Korea, Ukraine, Norway, Turkey. The paper also examines the development trends of the doctrine of the immunity of a foreign state abroad as a whole, highlights general and special features in the legislative regulation of the immunity of a foreign state in the above countries, and also provides and analyzes relevant judicial practice. In addition, the author explores the issue of jurisdictional immunity in the field of transport law, as well as the question whether it is necessary to involve the state in international commercial arbitration, and concludes that there are no obstacles to the participation of states in arbitration, as the very signing by the state of an arbitration clause means the state’s voluntary renunciation of jurisdictional immunity. In conclusion, based on the analysis, the author formulates some general trends in the legal regulation of foreign immunity abroad. Based on the analysis, it is also concluded that in foreign countries, for the most part, there is no legislative regulation of issues of jurisdictional immunity in international private law.

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Gardiner, Richard. "UN Convention on State Immunity: Form and Function." International and Comparative Law Quarterly 55, no. 2 (April 2006): 407–10. http://dx.doi.org/10.1093/iclq/lei088.

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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?

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Mora, P. D. "Hazel Fox QC. The Law of State Immunity." European Journal of International Law 21, no. 1 (February 1, 2010): 249–50. http://dx.doi.org/10.1093/ejil/chq012.

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Yang, Xiaodong. "IMMUNITY FOR INTERNATIONAL CRIMES: A REAFFIRMATION OF TRADITIONAL DOCTRINE." Cambridge Law Journal 61, no. 2 (June 24, 2002): 239–94. http://dx.doi.org/10.1017/s0008197302221601.

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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.

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O’Keefe, Roger. "The European Convention on State Immunity and International Crimes." Cambridge Yearbook of European Legal Studies 2 (1999): 507–20. http://dx.doi.org/10.5235/152888712802815770.

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The European Convention on State Immunity provides for the immunity of states and their organs from the domestic courts of the respective Contracting States. In doing so, it makes no apparent distinction between those courts’ civil and criminal jurisdictions. Yet the vexed question of the immunity of state officials from the latter, especially in respect of crimes established under international law, has been spectacularly brought to the fore by the Pinochet case. It is on this question—the immunity of individual state officials from the criminal jurisdiction of foreign states specifically in respect of international crimes—that this article focuses.

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Verdier, Pierre-Hugues, and Erik Voeten. "How Does Customary International Law Change? The Case of State Immunity." International Studies Quarterly 59, no. 2 (October 24, 2014): 209–22. http://dx.doi.org/10.1111/isqu.12155.

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Garnett, Richard. "State Immunity in Employment Matters." International and Comparative Law Quarterly 46, no. 1 (January 1997): 81–124. http://dx.doi.org/10.1017/s0020589300060127.

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An area which has received little attention in the academic literature of foreign State immunity to date is that concerning immunity in employment matters.1 This omission can probably be explained by the scant case law which has hitherto existed on the subject. However, in recent years the number of decisions has increased due to the fact that employment by States of foreign nationals has become far more common. Developing countries in particular, as they seek to create new industries, have become increasingly reliant on advisers and technicians from the developed world.

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Bornkamm, Paul Christoph. "State Immunity Against Claims Arising from War Crimes: The Judgment of the International Court of Justice inJurisdictional Immunities of the State." German Law Journal 13, no. 6 (June 2012): 773–82. http://dx.doi.org/10.1017/s2071832200020733.

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The recent judgment of the International Court of Justice (ICJ) in theCase Concerning Jurisdictional Immunities of the State(Germany v. Italy; Greece Intervening) marks the climax of a series of legal proceedings before Greek, Italian, and German courts, as well as the European Court of Human Rights (ECHR) stretching over a period of more than fifteen years. The international community had eagerly awaited the ICJ's findings on the issue at the heart of the dispute, namely the scope of state immunity before foreign courts in cases concerning claims arising from serious violations of international humanitarian law. While most expected the Court to rule in favor of Germany and to uphold state immunity in principle, it was unclear whether the Court would acknowledge the increasing erosion of immunity with respect to serious violations of human rights or international humanitarian law. To the disappointment of many, the Court took a conservative approach and rejected the idea of an emerging exception from state immunity.

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Del Mar, Katherine. "The Effects of Framing International Legal Norms as Rules or Exceptions: State Immunity from Civil Jurisdiction." International Community Law Review 15, no. 2 (2013): 143–70. http://dx.doi.org/10.1163/18719732-12341248.

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Abstract The finding by the International Court of Justice in the case concerning Jurisdictional Immunities of the State that Italy violated its obligation to respect Germany’s immunity from civil jurisdiction comes as no surprise. The anticipated conclusion of the Court is the outcome of the powerful tradition of framing State immunity as a rule to which an exercise of jurisdiction by a domestic court is an exception expressly established under customary international law. As technically faultless as this finding may appear, it sits uncomfortably with deeper, structural developments in international law that challenge the very application of the ‘rule-exceptions’ framework of State immunity. This article questions the underlying assumption upon which the Court’s judgment is premised: that State immunity operates as a predominant rule, to which only exceptions that are established under customary law can apply, and it proposes an alternative understanding of the doctrine of State immunity.

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Eboe-Osuji, Chile. "State Immunity, State Atrocities, and Civil Justice in the Modern Era of International Law." Canadian Yearbook of international Law/Annuaire canadien de droit international 45 (2008): 223–70. http://dx.doi.org/10.1017/s0069005800009322.

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SummaryThe exercise of civil jurisdiction by a national court over a foreign sovereign has been a perennial source of controversy in international relations. It resulted in the development of the doctrine of state immunity, founded on the notion of the comity of nations. The doctrine at some point was considered an absolute rule. With time, exceptions to the rule were accepted, notably in the area of commercial activities. In recent times, there has been a movement to recognize a further exception involving violation of jus cogens norms in order to limit the tendency of certain state agents to engage in gross violations of human rights and humanitarian norms. Yet this movement has encountered strong resistance. The resistance is apparent in three decisions rendered respectively by the European Court of Human Rights, the Ontario Court of Appeal, and the British House of Lords. In this article, it is contended first that the resistance noted in these cases is largely founded on fundamental misconceptions. It is further contended that the comity of nations is no longer sustainable as a rational basis for the doctrine of state immunity, especially in the face of jus cogens as a peremptory norm of international law.

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OZDAN, SELMAN. "A CRITIQUE OF THE DEMISE OF HEADS OF STATE IMMUNITY IN THE AGE OF HUMAN RIGHTS." Age of Human Rights Journal, no. 11 (December 19, 2018): 108–27. http://dx.doi.org/10.17561/tahrj.n11.6.

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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.

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Denza, Eileen. "The 2005 UN Convention on State Immunity in Perspective." International and Comparative Law Quarterly 55, no. 2 (April 2006): 395–98. http://dx.doi.org/10.1093/iclq/lei086.

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State immunity is highly unusual among established areas of public international law in that it has been created and developed largely through cases in national courts and through national legislation. In sharp contrast to diplomatic and consular privileges and immunities, the role of reciprocity and of diplomatic negotiation in shaping the rules of state immunity has been rather limited. While national courts have purported to apply these rules as international law, they have inevitably viewed them within the frame-work of the constitutional approach taken by the particular national legal order to rules of international law and they have looked to earlier national precedents rather than to cases in other jurisdictions. In consequence, cross-fertilization has been rather limited and the process of response by national courts to the changing functions of States in the modern world has been painfully slow. Over the past 30 years, the uncertainties and inadequacies of leaving state immunity rules to national courts has been addressed mainly through national statutes—but while the draftsmen and legislators have paid careful attention to other statutes and tried to follow their best features, this process has compounded the perception of the courts that state immunity is an area of national law, to be interpreted and refined at national level.

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Farnelli, Gian Maria. "A Controversial Dialogue between International and Domestic Courts on Functional Immunity." Law and Practice of International Courts and Tribunals 14, no. 2 (August 24, 2015): 255–89. http://dx.doi.org/10.1163/15718034-12341293.

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The present contribution stems from a number of judicial decisions concerning immunity of State officials from foreign domestic jurisdiction, with specific regard to criminal jurisdiction. In particular, the article aims at analysing current trends concerning immunity of State officials from foreign domestic jurisdiction. In order to do so, an analysis of the customary rules concerning immunity of State officials, either personal or organic, is sketched out first of all, also taking into consideration the recent work of the International Law Commission on the topic in point. Subsequently, international and domestic case law are dealt with. In particular, the analysis considers the stance taken by international as well as domestic courts with regard to organic immunity in cases of international or common crimes. Lastly, some conclusions are drawn, also pointing towards some small openings in current case law so as to suggest a possible balance between competing claims.

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Fox, Hazel. "In Defence of State Immunity: Why the UN: Convention on State Immunity is Important." International and Comparative Law Quarterly 55, no. 2 (April 2006): 399–406. http://dx.doi.org/10.1093/iclq/lei087.

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The Convention on State Immunity adopted by the UN General Assembly in 2004 represents in treaty form a finished product of some 22 years of work 1 It indicates a consensus of State support for the restrictive doctrine of State immunity in its application to civil proceedings relating to commercial matters in national courts. It is a considerable achievement from the view point of the specialist lawyers and diplomats who have steered the project to UN endorsement.

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Focarelli, Carlo. "Denying Foreign State Immunity for Commission of International Crimes: The Ferrini Decision." International and Comparative Law Quarterly 54, no. 4 (October 2005): 951–58. http://dx.doi.org/10.1093/iclq/lei044.

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The Italian Court of Cassation has recently delivered a judgment of great interest denying State immunity to Germany for commission of crimes under customary international law on the exclusive basis of international law.

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Sanger, Andrew. "I. IMMUNITY OF STATE OFFICIALS FROM THE CRIMINAL JURISDICTION OF A FOREIGN STATE." International and Comparative Law Quarterly 62, no. 1 (January 2013): 193–224. http://dx.doi.org/10.1017/s002058931200053x.

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AbstractIn Khurts Bat, the English High Court held that Mr Bat, a Mongolian State official charged with committing municipal crimes on German territory, was not immune from the jurisdiction of German courts and could therefore be extradited to Germany. This article examines the three theories of immunity put forward in that case: (1) special missions immunity, (2) high-ranking official immunity, and (3) State immunity. It focuses on the question of whether State officials charged with municipal crimes may plead immunity ratione materiae from the criminal jurisdiction of a foreign State by examining key examples of State practice.

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Love, Ben. "The International Court of justice: Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening)." International Legal Materials 51, no. 3 (June 2012): 563–605. http://dx.doi.org/10.5305/intelegamate.51.3.0563.

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On February 3, 2012, the International Court of Justice (‘‘ICJ’’ or ‘‘Court’’) issued a widely-anticipated judgment in a dispute over state immunity between Italy and Germany. The Court found that Italy violated its international law obligation to respect the jurisdictional immunity of the German state by: (i) allowing individuals to bring civil claims against Germany in Italian courts for violations of international humanitarian law committed by the German Reich between 1943 and 1945; (ii) declaring Greek judgments finding similar international law violations by Germany enforceable in Italy; and (iii) taking measures of constraint against public and non-commercial property owned by Germany in Italy. The Court accordingly found that Italy must ensure that the decisions of its courts infringing upon Germany’s immunity cease to have effect.

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Warbrick, Colin, Dominic McGoldrick, and J. Craig Barker. "II. State Immunity, Diplomatic Immunity and Act of State: A Triple Protection Against Legal Action?" International and Comparative Law Quarterly 47, no. 4 (October 1998): 950–58. http://dx.doi.org/10.1017/s0020589300062631.

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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

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Keitner, Chimène I., and Scott Dodson. "Jam v. International Finance Corp." American Journal of International Law 113, no. 4 (October 2019): 805–11. http://dx.doi.org/10.1017/ajil.2019.49.

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In Jam v. International Finance Corp., the U.S. Supreme Court held that the International Organizations Immunities Act of 1945 (IOIA) affords international organizations (IOs) the same immunity from suit in U.S. courts that foreign governments currently enjoy under the Foreign Sovereign Immunities Act of 1976 (FSIA), which codifies the restrictive theory of foreign sovereign immunity. The International Finance Corporation (IFC) had argued that the IOIA, which grants international organizations the “‘same immunity’ from suit … ‘as is enjoyed by foreign governments’” (p. 15), should be understood to provide international organizations with absolute immunity, which it argued foreign governments enjoyed prior to the United States’ explicit adoption of the restrictive theory in 1952. Under the restrictive theory, a foreign state is immune from suit for its sovereign acts (acta jure imperii), but not for its commercial acts (acta jure gestionis). By interpreting language in the IOIA as granting the “same immunity” to international organizations as foreign governments enjoy at the time the suit is filed, the Supreme Court aligned the regime for IO immunity with that of foreign state immunity, except in cases where the IO's founding charter provides a different rule or where the executive branch has explicitly limited immunity. It remains to be seen what IO activities are deemed “commercial” under this regime and what types of transactions are found to have a sufficient nexus to the United States to fall within the FSIA's commercial-activity exception.

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Hopkins, John. "Government of foreign state–proof of existence." Cambridge Law Journal 57, no. 3 (November 1998): 429–71. http://dx.doi.org/10.1017/s0008197398243017.

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THE State speaks with one voice in international law. And that voice, of course, is the executive's, usually, but not invariably, that of the Foreign and Commonwealth Office (FCO). Upon a variety of matters a certificate as to certain facts issued by the executive will be regarded by the courts as conclusive of them. This function was, historically, a matter of common law though there are now several statutory provisions in that regard, most notably the Diplomatic Privileges Act 1964 s. 4 and the State Immunity Act 1978 s. 21 identifying defendants who will have immunity from the jurisdiction (see [1998] C.L.J. 4).

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Warbrick, Colin, Dominic McGoldrick, and Eileen Denza. "II. Ex parte Pinochet: Lacuna or Leap?" International and Comparative Law Quarterly 48, no. 4 (October 1999): 949–58. http://dx.doi.org/10.1017/s0020589300063776.

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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

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Voyiakis, Emmanuel. "Access to Court v State Immunity." International and Comparative Law Quarterly 52, no. 2 (April 2003): 297–332. http://dx.doi.org/10.1093/iclq/52.2.297.

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This comment discusses three recent judgments of the European Court of Human Rights in the cases of McElhinney v Ireland, Al-Adsani v UK, and Fogarty v UK. All three applications concerned the dismissal by the courts of the respondent States of claims against a third State on the ground of that State's immunity from suit. They thus raised important questions about the relation the European Convention on Human Rights (the Convention)—especially the right to a fair trial and access to court enshrined in Arcticle 6(1)—and the law of State immunity.

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Negri, Stefania. "Sovereign Immunity v. Redress for War Crimes: The Judgment of the International Court of Justice in the Case Concerning Jurisdictional Immunities of the State (Germany v. Italy)." International Community Law Review 16, no. 1 (February 3, 2014): 123–37. http://dx.doi.org/10.1163/18719732-12341273.

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Abstract In the judgment delivered in the case concerning Jurisdictional Immunities of the State (Germany v. Italy), the International Court of Justice held that under the present state of international customary law State immunity encompasses all acta jure imperii, regardless of whether they are unlawful. Following the ruling that States are entitled to jurisdictional immunities before foreign courts even if their sovereign acts amount to violations of peremptory norms, the Court found that Italy had violated Germany’s immunity from jurisdiction and enforcement. In rendering such a conservative judgment, the Court missed a double opportunity: to contribute to the development of international law by interpreting the rule on sovereign immunity in harmony with international human rights law and its dynamics, and to finally serve justice for the victims of war crimes.

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de Smet, Simon. "The Immunity of Heads of States in US Courts after the Decision of the International Court of Justice." Nordic Journal of International Law 72, no. 3 (2003): 313–39. http://dx.doi.org/10.1163/157181003771013780.

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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.

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Robinson, Darryl. "The Impact of the Human Rights Accountability Movement on the International Law of Immunities." Canadian Yearbook of international Law/Annuaire canadien de droit international 40 (2003): 151–93. http://dx.doi.org/10.1017/s006900580000802x.

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SummaryIn the last decade, the human rights accountability movement has made remarkable inroads into the classical law of immunities. The developments strike a new equilibrium between the need to promote accountability and the need to protect international discourse. These developments form a coherent picture if one looks to the underlying rationales of these areas of law. Immunities ratione materiae, enjoyed by current and former officials, protect official functions on behalf of a state. The landmark Pinochet decision affirmed that official functions could not include the commission of international crimes condemned by international law. Conversely, immunity ratione personae flows from a different rationale. This form of immunity protects only certain high officials representing their state and only during office and facilitates official visits by precluding arrest on any grounds. The International Court of Justice Yerodia decision and other developments confirm that this immunity remains absolute, irrespective of the conduct alleged. However, even this absolute immunity may be relinquished through Security Council enforcement action or acceptance of the jurisdiction of the International Criminal Court.

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Dodge, William S. "Jurisdiction, State Immunity, and Judgments in the Restatement (Fourth) of US Foreign Relations Law." Chinese Journal of International Law 19, no. 1 (March 1, 2020): 101–35. http://dx.doi.org/10.1093/chinesejil/jmaa004.

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Abstract In 2018, the American Law Institute published the Restatement (Fourth) of Foreign Relations Law, which restates the law of the United States governing jurisdiction, state immunity, and judgments. These issues arise with great frequency in international cases brought in US courts, including cases involving Chinese parties. This article provides an overview of many of the key provisions of the Restatement (Fourth). The article describes the Restatement (Fourth)’s treatment of the customary international law of jurisdiction, as well the rules of US domestic law based on international comity that US courts apply when deciding international cases.

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De Brabandere, Eric. "Immunity of International Organizations in Post-conflict International Administrations." International Organizations Law Review 7, no. 1 (2010): 79–119. http://dx.doi.org/10.1163/157237310x523812.

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AbstractThe role played by international organizations in international law has evolved in the past decades. However, the continued application of an absolute system of immunities to international organizations has often led to a perception of impunity, in particular when organizations are involved in the administrations of foreign territories. Even though absolute immunity has been described as an 'anachronism', this article argues that international organization immunity serves a useful and essential purpose. The grant of privileges and immunities to international organizations is indispensable to allow the organization to effectively and independently carry out its functions. The functional reflections that lie at the basis of the immunities system of international organizations still are extremely pertinent when organizations exercise administrative duties in place of a state. This articles thus claims that there is a need to maintain immunities in order to preserve institutional autonomy, even when the UN or another international organization has taken up administrative duties in a state or territory, and suggests that, instead of proposing a revision or abolition of the system of immunities, the focus should be placed on the establishment of effective alternative mechanisms to assess alleged violations of the international legal obligations of the organization.

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Mazzeschi, Riccardo Pisillo. "ACCESS TO JUSTICE IN CONSTITUTIONAL AND INTERNATIONAL LAW: THE RECENT JUDGMENT OF THE ITALIAN CONSTITUTIONAL COURT." Italian Yearbook of International Law Online 24, no. 1 (October 22, 2015): 7–23. http://dx.doi.org/10.1163/22116133-90000070a.

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In its judgment No. 238/2014 the Italian Constitutional Court, whilst appearing to show respect for the ICJ’s 2012 judgment in Jurisdictional Immunities of the State, makes notable criticisms of that judgment and insists on its own role in the progressive development of international law in the field of State immunity. In particular, the main legal argument of the Constitutional Court, based on the fundamental and inviolable character of the right of access to justice in constitutional law, can also be used, although modified to some extent, in international law. The Court’s argument can also resolve the possible conflict between the international norm of State immunity, on the one hand, and the international norms on fundamental human rights and access to justice, on the other. The present contribution seeks to demonstrate that: (a) the right of access to justice and the connected right to reparation for violations of fundamental human rights are established by two customary international norms; (b) there is a potential conflict between these norms and the norm of State immunity; (c) this conflict becomes real and concrete when the limits on access to justice and reparation laid down by immunity are unjustified in accordance with the rule of “equivalent protection”; and (d) the solution to that conflict derives from the normative superiority of the customary norms on access to justice and reparation (being peremptory in nature when functionally linked to the violation of fundamental human rights) over the norm of State immunity. The judgment of the Constitutional Court, utilizing legal reasoning that can also translate to the level of international law, demonstrates that osmosis may occur between the arguments used in constitutional and international law, and that today there is growing interaction between the domestic and international legal orders and their common values. The law of human rights, placed at the very center of the Constitutional Court’s judgment, is the field in which this community of values emerges most clearly.

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Markovich, Stephanie. "Balancing State Sovereignty and Human Rights." Potentia: Journal of International Affairs 1 (October 1, 2009): 57–74. http://dx.doi.org/10.18192/potentia.v1i1.4368.

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To what extent are state officials held accountable for their actions? This essay will examine a specific aspect of this question, namely whether there is an exception to the general rule that the Head of State, Head of Government and Foreign Minister are immune from prosecution in another country’s national courts for serious international crimes. It will begin with a brief review of the relevant treaty provisions relating to immunity of state officials. Second, it will examine some pre-Arrest Warrant case law specifically on the issue of potential exceptions to the immunity rule for state officials. Third, it will review the Arrest Warrant Case, an ICJ decision that halted this trend and discuss some of the issues left unresolved by the decision. Fourth, it will review the ICJ’s discussion of immunity post-Arrest Warrant in Djibouti v. France. Finally, it will explore the concept of jus cogens and whether this could help reconcile the competing interests (state sovereignty and accountability for serious international crimes) at play in this issue. This essay will conclude that while the jus cogens nature of serious international crimes does not equate to an automatic carte blanche for removing immunity, it does strongly support the developing norm of limited exceptions to the general rule of immunity.

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Murphy, Sean D. "Immunity Ratione Materiae of State Officials from Foreign Criminal Jurisdiction: Where is the State Practice in Support of Exceptions?" AJIL Unbound 112 (2018): 4–8. http://dx.doi.org/10.1017/aju.2018.8.

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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.

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Journal articles on the topic 'International law and State immunity'

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