Relevant bibliographies by topics / Immunity of jurisdiction

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  1. Journal articles
  2. Dissertations / Theses
  3. Books
  4. Book chapters
  5. Conference papers

Academic literature on the topic 'Immunity of jurisdiction'

Author: Grafiati
Published: 4 June 2021
Last updated: 1 February 2022

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Journal articles on the topic "Immunity of jurisdiction"

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JURATOWITCH, Ben. "Waiver of State Immunity and Enforcement of Arbitral Awards." Asian Journal of International Law 6, no. 2 (February 13, 2015): 199–232. http://dx.doi.org/10.1017/s204425131400040x.

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If a state has waived state immunity by agreement with a non-state entity in advance of court proceedings brought by that entity to enforce an arbitral award against that state, then the enforcement court should give effect to the waiver. That is the opposite of what the Hong Kong Court of Final Appeal decided in Democratic Republic of the Congo v. FG Hemisphere, but it is the approach reflected in the 2004 United Nations Convention on the Jurisdictional Immunities of States and their Property. After examining that Hong Kong case and that United Nations Convention, this paper considers the position in various jurisdictions. The prevalent position is in general terms that consent to arbitration usually constitutes waiver of state immunity from jurisdiction of a court to recognize the arbitral award as creating a debt binding on the state, but usually does not constitute waiver of state immunity from execution of that debt against the assets of the state. The conclusion of the paper includes a model waiver of state immunity from jurisdiction and from execution.
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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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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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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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N, Nikhilesh. "Immunity of State Owned Non-Commercial Ships and Vessel Protection Detachments in the Foreign Criminal Jurisdiction." Hasanuddin Law Review 6, no. 3 (December 3, 2020): 184. http://dx.doi.org/10.20956/halrev.v6i3.2425.

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This article studying the issue of sovereign immunity of ships and vessel protection detachments from criminal jurisdiction of foreign courts. The issue immunity of ships from foreign criminal jurisdiction can be understand from Schooner Exchange case onwards. In the initial stages the courts were given absolute immunity of the government ships in the foreign jurisdiction. Later on the courts, jurists and states classified the immunity in two heads such as personal immunity and functional immunity. Immunity not only given to the troika but also to the other officials engaged in the sovereign functions for their respective states with the exception of universal crimes. The status of the warships, government non commercial ships under the law of the sea convention is analysing. At the end the Article considering whether functional immunity applicable to the vessel protection detachments appointed by the states to protect their ship from piracy in accordance with the IMO guidelines.
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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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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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Farnelli, Gian Maria. "Back to Lotus? A Recent Decision by the Supreme Court of India on an Incident of Navigation in the Contiguous Zone." International Community Law Review 16, no. 1 (February 3, 2014): 106–22. http://dx.doi.org/10.1163/18719732-12341272.

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Abstract This article stems from a recent decision of the Indian Supreme Court concerning whether the criminal courts of the Indian State of Kerala have jurisdiction over two Italian marines accused of killing two Indian fishermen. The analysis is critical of the Court’s reasoning and findings over the two main defences raised by the accused: namely, the lack of jurisdiction of the coastal state on the basis of the law of the sea and in relation to the customary rule on the jurisdictional immunity of military personnel for acts carried out in their line of duty. Finally, this study also critically examines the operational decision of the Indian Supreme Court in providing for the establishment of a specific domestic court deemed competent to entertain its jurisdiction over the cause in view of its international nature.
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Chechi, Alessandro. "Judgment No. 238 – 2014 (IT. Const. Ct.)." International Legal Materials 54, no. 3 (June 2015): 471–506. http://dx.doi.org/10.5305/intelegamate.54.3.0471.

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On October 22, 2014, the Italian Constitutional Court rendered a decision on the constitutional legitimacy of certain domestic norms that required Italy’s compliance with the rule on state immunity sanctioned by the International Court of Justice (ICJ) with the Judgment Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening). The Constitutional Court declared that the international customary obligations on state immunity from jurisdiction can be applied automatically within the Italian legal order only as long as they are in conformity with the fundamental rights contained in the Constitution.
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SARZO, MATTEO. "The Dark Side of Immunity: Is There Any Individual Right for Activities Jure Imperii?" Leiden Journal of International Law 26, no. 1 (February 5, 2013): 105–25. http://dx.doi.org/10.1017/s0922156512000672.

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AbstractThe following contribution interprets the ICJ decision on the case Jurisdictional Immunities of the State in a broader picture. The article focuses on the cause of action underlying the domestic civil claims, i.e. the primary rules providing for individual rights. Indeed, the traditional view, which conceives immunity as a ‘procedural’ rule, vigorously upheld by the Court, is not the only way to address this topic. In our view, state immunity is a substitute for other more sensitive questions, namely the definition of ‘state’, its prerogatives, and the individuals as right holders under international law. This approach points out a different rationale under state immunity, leading to major practical consequences in terms of the assessment of international jurisdiction.
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Dissertations / Theses on the topic "Immunity of jurisdiction"

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Chamlongrasdr, Dhisadee. "Implications from the undertaking to arbitrate : waiver of immunity from jurisdiction and from execution." Thesis, University of London, 2006. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.428121.

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Akman, Keder. "Challenges for the International Criminal Court and the crime of aggression : jurisdiction, immunity and politics." Thesis, Stockholms universitet, Juridiska institutionen, 2014. http://urn.kb.se/resolve?urn=urn:nbn:se:su:diva-101537.

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Lindén, Johan. "Immunity of International Organizationsand the Right of Access to Justice for Individuals." Thesis, Uppsala universitet, Juridiska institutionen, 2018. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-359979.

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International Organizations are a growing force in the global arena. While themandate and influence of the UN has increased over the last decades, the existinglegal regime regarding privileges and immunities remain the same as they were atthe founding of the organization. This has led to mass tort claims towards the UN,stemming from damages caused by the organizations. These damages often consistof human rights violations, something the organization is generally regarded as aprotector of, rather than violator.As individuals seek to obtain reparations and remedies for the damages inflictedupon them, they are generally obstructed by the claim for immunity by theinternational organization. This constitutes a conflict of competing interests thatthe domestic courts must address and solve. This conflict is central to my thesis,as I will discover how this issue has been tackled by the national as well asinternational courts, and which consequences the current legal practice has for theindividuals. The thesis concludes with a discussion on what needs to be done inorder to bridge the current accountability gap created by the immunity ofinternational organizations.
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Thoms, Anna. "Criminal Accountability of UN officials serving in peacekeeping operations : With focus on sexual exploitation and abuse." Thesis, Uppsala universitet, Juridiska institutionen, 2014. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-233221.

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The purpose of this thesis is to investigate the criminal accountability of UN officials. To do this, the question if UN officials are in fact held accountable and if so, who holds them accountable, will be investigated. Who has the legal authority to impose criminal accountability on UN employees committing crimes? Further, if they are not, what could be done to ensure criminal accountability?
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Shi, Xinxiang. "Diplomatic immunities ratione materiae under the Vienna Convention on Diplomatic Relations : towards a coherent interpretation." Thesis, University of Edinburgh, 2018. http://hdl.handle.net/1842/33152.

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Rules of diplomatic immunity, which nowadays are enshrined in the Vienna Convention on Diplomatic Relations, play an important role in interstate diplomacy because they ensure the efficient performance of diplomatic functions. This thesis investigates a particular form of diplomatic immunity - diplomatic immunity ratione materiae. Unlike diplomatic immunity ratione personae, which pertains to the personal status of a diplomatic agent, diplomatic immunity ratione materiae depends in essence on the official nature of a particular act In practice, however, the determination of diplomatic immunity ratione materiae may meet with many conceptual and practical difficulties. For one, it is not always easy to distinguish the official acts of a diplomatic agent, who represents the sending State in the receiving State, from his or her private acts. In case of disagreement between the two States, questions may also arise as to who has the authority to make a final determination. The Vienna Convention does not offer much guidance on these issues; on the contrary, the Convention complicates them by employing, without adequate explanation, distinct formulas for different kinds of diplomatic immunity ratione materiae. This thesis examines these formulas in detail. On a general level, it is submitted that diplomatic immunity ratione materiae for certain types of activity constitutes not only a procedural bar to court proceedings but also a substantive exemption of individual responsibility. More specifically, it is argued that each formula must be understood in the light of the rationale behind immunity, the type of immunity concerned, and the specific functions or duties performed. In case of controversy, weight should be given to the opinion of the sending State, although the authority to make a decision lies ultimately with the court of the receiving State.
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Franey, Elizabeth Helen. "Immunity, individuals and international law : which individuals are immune from the jurisdiction of national courts under international law?" Thesis, London School of Economics and Political Science (University of London), 2009. http://etheses.lse.ac.uk/309/.

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State immunity under international law extends to protect some individuals from criminal prosecution before national courts. This thesis aims to identify which individuals are immune from prosecution before the English courts, for what conduct, and for what period. The justifications for immunity are examined, and the extent of immunity ratione personae and immunity ratione materiae are explored. This thesis argues that immunity ratione personae is only narrowly available to high state officials, and that the immunity accorded, by consent, to special missions is sufficient to cover other official visits. In Pinochet (No 3) all seven judges agreed: 1. An ex-head of state is immune from prosecution for murder and conspiracy to murder alleged to have been committed in the forum state. 2. All state officials no matter how minor are entitled to continuing immunity This thesis analyses state practice in arresting or prosecuting foreign state officials, and argues that both of these statements are incorrect. This thesis argues that immunity does not attach to conduct alone, for a person to have continuing immunity ratione materiae they must have had immunity ratione personae. The forum state must have agreed to the official being present on its territory, and agreed to the purpose of the visit. Those officials present on the territory of a foreign state with the consent of that state who have immunity ratione personae have continuing immunity ratione materiae only for official conduct, acta jure imperii. This does not extend to acts of violence. Finally the development of the regime for the prosecution and punishment of international crimes by national courts is considered. The conflict with immunity is examined, and a possible reconciliation between the two principles is suggested by using the complementarity principle in the statute of the International Criminal Court.
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Ziaaddini, Ehsan. "A constructivist approach to international crimes and application of universal jurisdiction and immunity of officials in respect of international crimes." Thesis, Durham University, 2017. http://etheses.dur.ac.uk/12008/.

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This thesis analyses the application of rules of immunity and universal jurisdiction in respect of international crimes by adopting a constructivist approach to the interests of the international community and formation of customary international law. Accordingly, the study proposes an alternative understanding of customary international law in order to analyse the rules of immunity, universal jurisdiction and international crimes and their interrelated operations. The operation of the rules of immunity and universal jurisdiction regarding international crimes is conducted on the basis of a constructivist understanding of the interests of the international community to determine whether legitimate rules can be institutionalised in customary international law as well as rules based on the self-interests of States. This thesis also considers whether rules, based on their legitimacy, can comprise different legal implications in international law. In this context, the study considers how international crimes, which give rise to the dual responsibility for States and their nationals, are created by adopting a constructivist approach to customary law formation. This study further considers whether international crimes in international law are based on legitimacy rather than the self-interests of States, and whether they can give rise to different legal implications, specifically with regard to rules of universal jurisdiction and the immunity of officials. The development and application of the rules of jurisdiction and immunity are considered separately in international law on the basis of their development in customary international law. This study seeks to determine the appropriate general approach to the rules of jurisdiction by analysing both the permissive and prohibitive approaches to the rules of jurisdiction.
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Filbert, Nicksoni. "The Immunity Clause in the Statute of the 'African Criminal Court' and Its Impact in the Exercise of the Courts' Jurisdiction over the Crimes." University of the Western Cape, 2017. http://hdl.handle.net/11394/6348.

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Magister Legum - LLM (Criminal Justice and Procedure)
In June 2014, the AU adopted a Protocol which included in its annexe a Statute of the African Court of Justice and Human and Peoples' Rights. The Protocol proposes to expand the jurisdiction of the African Court of Justice and Human and Peoples' Rights (ACJHPR) by vesting it with criminal jurisdiction. The ACJHPR will comprise of three sections, namely, a General Affairs Section, a Human and Peoples' Rights Section and an International Criminal Law Section. The Malabo Protocol, therefore, confers the proposed ACJHPR with criminal jurisdiction over international and transnational crimes. Although the Malabo Protocol and its Statute are not yet in force, the fact that in Africa there is a possibility of having the 'African Criminal Court (ACC)' deserves a critical analysis.
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Fernandes, Camila Vicenci. "Imunidade de jurisdição de estado estrangeiro : novos desafios em relação aos direitos humanos." reponame:Biblioteca Digital de Teses e Dissertações da UFRGS, 2010. http://hdl.handle.net/10183/138245.

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O presente trabalho examinará a temática da imunidade de jurisdição do Estado estrangeiro em relação às violações aos Direitos Humanos. Na primeira parte, será abordada a configuração do instituto da imunidade de jurisdição do Estado estrangeiro, analisando seus fundamentos (soberania, independência, igualdade e dignidade), operando a distinção entre jurisdição, competência e imunidade do Estado estrangeiro, abordando a questão da transição do paradigma absoluto ao relativo e examinando como se deu esta transição na jurisprudência do Brasil. Na segunda parte do trabalho, tratar-se-á da oposição entre os Direitos Humanos em relação à imunidade de jurisdição do Estado estrangeiro, examinando-se as novas abordagens teóricas a respeito (teoria da renúncia implícita, teoria da hierarquia normativa, teoria da jurisdição universal, teoria da opção e da calculabilidade do risco, teoria e teoria do benefício coletivo), bem como suas repercussões jurisprudenciais, além de se propor uma síntese entre as teorias, para, finalmente, analisar o panorama jurisprudencial brasileiro na questão da imunidade de jurisdição em relação a violações de Direitos Humanos por Estado estrangeiro.
This paper will examine the issue of sovereign immunity regarding Human Rights violations. The first part will look at the configuration of the State’s jurisdictional immunity, analyzing its foundations (sovereignty, independence, equality and dignity), operating the distinction between jurisdiction, competence and sovereign immunity, addressing the transition from the absolutist paradigm to a relative one and examining how this transition occurred in Brazilian case-law. In the second part, the opposition between Human Rights and State’s jurisdictional immunity will be addressed by examining new theoretical approaches about the issue ( the implied waiver theory, the normative hierarchy theory, the universal jurisdiction theory, the option-risk calculability theory and the theory of collective benefit) as well as its repercussions in case law, in addition to proposing a synthesis between the theories, to finally analyze the Brazilian case-law on the question of sovereign immunity and Human Rights violations.
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Daneshvar, Fatemeh. "L’immunité juridictionnelle des États et des organismes d'État." Thesis, Université de Lorraine, 2018. http://www.theses.fr/2018LORR0270.

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L'immunité juridictionnelle des États a été pendant des siècles une question incontestée fondée sur le principe de l'égalité des Etats et sur leur indépendance absolue. Cette règle a été élaborée à une époque où tenter une action contre un État dans un pays étranger aurait été considéré comme une violation de sa souveraineté. Toutefois, les fonctions des Etats ont changé au cours des siècles. Désormais, les Etats s’engagent dans les activités commerciales comme une personne privée et jouent un rôle essentiel dans ce secteur.Alors, bien que le droit de l'immunité soit lié à l'octroi de l'immunité aux États pour leur permettre d'accomplir efficacement les fonctions publiques, le droit international moderne n'exige pas que les tribunaux d'un Etat s’abstiennent de connaître un litige simplement parce que l’État étranger n'a pas la volonté de défendre.Ce travail de recherche, est donc consacré à l’étude de l’immunité de juridiction et l’immunité d’exécution afin de montrer le droit international actuel sur la matière.Cette thèse vise à examiner une question spécifique qui a été mise en évidence au cours de ces dernières années. Comment et dans quelle mesure les États et ses démembrements devraient être soumis à des règles spécifiques de l'immunité d’Etat ?
The issue of jurisdictional immunity of states was for centuries an undisputed matter based on the principle of state equality and absolute independence of states. The rules were developed at a time when it was thought to be an infringement of a state's sovereignty to bring proceedings against it or its officials in a foreign country. However, the functions of states have changed over the centuries and nowadays states are involved in commercial activities as a private person and accordingly play an essential role in the commercial activities of the world. In fact, the issue of state immunities is an increasingly important and rapidly developing area of international law and practice. The state practice reflects the emerging global consensus that States and State enterprises can no longer claim absolute, unrestrained immunity from the proper jurisdiction of foreign courts, especially for their commercial activities. Therefore, although the law of state immunity is related to the grant of immunities to states to enable them to carry out their public functions effectively, modern international law does not require the courts of one state to refrain from deciding a case merely because a foreign state is an unwilling defendant. It is therefore important to know how a plea of state immunity may be made and to what type of dispute it applies
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Books on the topic "Immunity of jurisdiction"

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Chamlongrasdr, Dhisadee. Foreign state immunity and arbitration. London: Cameron May, 2007.

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Jurisdiction and sovereign immunity in Nigerian commercial law. Lagos, Nigeria: Nigerian Institute of International Affairs, 2007.

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Gordon, Michael W. Foreign state immunity in commercial transactions. Salem, N.H: Butterworth Legal Publishers, 1991.

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State immunity and cultural objects on loan. Leiden: Martinus Nijhoff Publishers, 2012.

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Morgan, Edward M. International law and the Canadian courts: Sovereign immunity, criminal jurisdiction, aliens' rights, and taxation powers. Toronto: Carswell, 1990.

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Morgan, Edward M. Foreign state debtors in the domestic courts: A theory of sovereign immunity. [Toronto, Ont.]: International Business and Trade Law Programme, 1988.

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Alebeek, Rosanne van. The immunity of states and their officials in international criminal law and international human rights law. Oxford: Oxford University Press, 2008.

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Alebeek, Rosanne van. The immunity of states and their officials in international criminal law and international human rights law. Oxford: Oxford University Press, 2008.

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Bu de yuan yin guo jia huo mian de su song: Guo jia ji cai chan guan xia huo miao li wai wen ti yan jiu = The proceedings in which state immunity cannot be invoked. Guangzhou: Ji nan da xue chu ban she, 2011.

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Martino, Gerardo. L' immunità giurisdizionale degli stati stranieri tra regionalismo ed universalismo. Salerno: Elea press, 1990.

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Book chapters on the topic "Immunity of jurisdiction"

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Orakhelashvili, Alexander. "Immunity from jurisdiction." In Akehurst's Modern Introduction to International Law, 230–50. Eighth edition. | Milton Park, Abingdon, Oxon; New York, NY: Routledge, 2019.: Routledge, 2018. http://dx.doi.org/10.4324/9780429439391-11.

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Voetelink, Joop. "Immunity." In Status of Forces: Criminal Jurisdiction over Military Personnel Abroad, 125–47. The Hague: T.M.C. Asser Press, 2015. http://dx.doi.org/10.1007/978-94-6265-057-2_7.

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Onida, Valerio. "Moving Beyond Judicial Conflict in the Name of the Pre-Eminence of Fundamental Human Rights." In Remedies against Immunity?, 331–35. Berlin, Heidelberg: Springer Berlin Heidelberg, 2021. http://dx.doi.org/10.1007/978-3-662-62304-6_17.

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AbstractSentenza 238/2014 can be criticized insofar as it seems to ground Italy’s refusal to comply with the Jurisdictional Immunities Judgment of the International Court of Justice on the basis of the right of access to a judge for the victims of the conduct of German armed forces during World War II. Indeed, the principle of state’s immunity to the civil jurisdiction of other states regarding the conduct of their own armed forces does not in itself breach a victim’s right of access to a judge, which theoretically in this case might also be granted by a German court. However, Sentenza 238/2014 has the merit of highlighting, in the specific case of the Italian Military Internees (IMIs), the violation of the victims’ right to an effective judicial protection of their fundamental rights, given that German jurisdictions excluded every reparation that favoured IMIs. Such fundamental rights must prevail over the international rules relating to state immunity because, according to the supreme principles of the Italian constitutional order and to international law itself, fundamental human rights violations related to crimes against humanity must benefit from an effective protection. The impasse between Italy and Germany should be solved through a new joint initiative between the two governments (carried out ideally under a common understanding of the two Presidents of the Republic), which should examine the applicants’ cases in order to grant them reparation. Though symbolic, such reparation will have an important moral dimension.
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Zimmermann, Andreas. "Would the World Be a Better Place If One Were to Adopt a European Approach to State Immunity? Or, ‘Soll am Europäischen Wesen die Staatenimmunität Genesen’?" In Remedies against Immunity?, 219–33. Berlin, Heidelberg: Springer Berlin Heidelberg, 2021. http://dx.doi.org/10.1007/978-3-662-62304-6_12.

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AbstractThis chapter argues not only that there is no European Sonderweg (or ‘special way’) when it comes to the law of state immunity but that there ought not to be one. Debates within The Hague Conference on Private International Law in the late 1990s and those leading to the adoption of the 2002 UN Convention on Jurisdictional Immunities of States, as well as the development of the EU Brussels Regulation on Jurisdiction and Enforcement, as amended in 2015, all demonstrate that state immunity was not meant to be limited by such treaties but ‘safeguarded’. Likewise, there is no proof that regional European customary law limits state immunity when it comes to ius cogens violations, as Italy and (partly) Greece are the only European states denying state immunity in such cases while the European Court of Human Rights has, time and again, upheld a broad concept of state immunity. It therefore seems unlikely that in the foreseeable future a specific European customary law norm on state immunity will develop, especially given the lack of participation in such practice by those states most concerned by the matter, including Germany. This chapter considers the possible legal implications of the jurisprudence of the Italian Constitutional Court for European military operations (if such operations went beyond peacekeeping). These implications would mainly depend on the question of attribution: if one where to assume that acts undertaken within the framework of military operations led by the EU were to be, at least also, attributable to the troop-contributing member states, the respective troop-contributing state would be entitled to enjoy state immunity exactly to the same degree as in any kind of unilateral military operations. Additionally, some possible perspectives beyond Sentenza 238/2014 are examined, in particular concerning the redress awarded by domestic courts ‘as long as’ neither the German nor the international system grant equivalent protection to the victims of serious violations of international humanitarian law committed during World War II. In the author’s opinion, strengthening the jurisdiction of international courts and tribunals, bringing interstate cases for damages before the International Court of Justice, as well as providing for claims commissions where individual compensation might be sought for violations of international humanitarian law would be more useful and appropriate mechanisms than denying state immunity.
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Palchetti, Paolo. "Right of Access to (Italian) Courts über alles? Legal Implications Beyond Germany’s Jurisdictional Immunity." In Remedies against Immunity?, 39–53. Berlin, Heidelberg: Springer Berlin Heidelberg, 2021. http://dx.doi.org/10.1007/978-3-662-62304-6_2.

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AbstractThe main consequence of Sentenza 238/2014 is that Germany has been denied jurisdictional immunities before Italian courts. However, the inflexible conception of the right of access to courts adopted by the Corte Costituzionale gives rise to a number of questions that go well beyond the issue at stake in Judgment 238/2014. First, there is the issue of whether the right of access to justice should also prevail over the international customary rule on immunity from execution. Secondly, one may ask whether the need to protect the right provided by Article 24 of the Italian Constitution could trump the criteria established by Italian law for exercising civil jurisdiction in order to allow access to justice in respect to all international crimes, even those committed outside Italian territory and involving individuals having no link to Italy. Finally, there is the question of whether a sacrifice of the right of access to justice would be justified if alternative, non-judicial means of redress were available to the victims; in particular, whether an alternative means of redress should in any case ensure to each and every individual victim full compensation or whether instead, in light of the specific circumstances of the case—the fact that the crimes occurred in the course of an international armed conflict affecting hundreds of thousands of victims—such alternative means could provide only symbolic compensation based on a lump sum settlement. This chapter aims at exploring these and possibly other issues arising in connection to the broad interpretation of the principle of access to justice given by the Corte Costituzionale.
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van Sliedregt, Elies. "Head of State Immunity for Former Leaders." In Criminal Jurisdiction 100 Years after the 1907 Hague Peace Conference, 90–111. The Hague: T.M.C. Asser Press, 2009. http://dx.doi.org/10.1007/978-90-6704-601-5_4.

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7

Voetelink, Joop. "The State, the Armed Forces and the Concept of Immunity." In Status of Forces: Criminal Jurisdiction over Military Personnel Abroad, 149–67. The Hague: T.M.C. Asser Press, 2015. http://dx.doi.org/10.1007/978-94-6265-057-2_8.

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8

Paulus, Andreas L. "Between a Rock and a Hard Place: Italian Concerns Between Constitutional Rights and International Law." In Remedies against Immunity?, 337–42. Berlin, Heidelberg: Springer Berlin Heidelberg, 2021. http://dx.doi.org/10.1007/978-3-662-62304-6_18.

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AbstractSentenza 238/2014 has led to a sharp dissonance between the international law of state immunity as interpreted by the International Court of Justice (ICJ) and Italian constitutional law as understood and applied by the Corte Costituzionale. While the interpretation and application by the Italian Constitutional Court (ItCC) of the access-to-courts provision in the Italian Constitution may not have been inevitable, this does not remove the need for finding a solution to the stalemate between international and domestic law. On the one hand, the easy solution, namely that the rejection of German state immunity from jurisdiction does not necessarily remove immunity from execution into German property, appears unlikely to be accepted by the ItCC because it would give stones rather than bread to the complainants and render court access a futile exercise. On the other hand, bringing Sentenza to its logical conclusion would result in Italy having to return to Germany what Italian courts took from her by requiring compensation—either by way of the general international law of restitutio in integrum, which the Corte Costituzionale has neither contemplated nor contradicted, or by way of the 1961 Treaty between Germany and Italy in which Italy promises to indemnify Germany against any further claims. Thus, a compromise would have to distinguish between full access to the Italian courts notwithstanding international immunity—as required by the ItCC—and substantive law, which could accept a more symbolical recognition of the suffering of the victims. That recognition could stem from a direct source other than the two states involved, such as a common fund, and address only the small group of immediate victims who were unjustly, if arguably legally, excluded from the previous compensation scheme of the 1960s. It is by no means certain, however, whether such an outcome would be acceptable to all sides—including the Corte itself. Thus, legal certainty would have to be established as quickly as possible so that the victims can still receive at least symbolic compensation.
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Krieger, Heike. "Sentenza 238/2014: A Good Case for Law-Reform?" In Remedies against Immunity?, 71–89. Berlin, Heidelberg: Springer Berlin Heidelberg, 2021. http://dx.doi.org/10.1007/978-3-662-62304-6_4.

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AbstractSentenza 238/2014 is an important judgment which does not only concern the concrete case at hand but also pushes for a change in the law of state immunity. However, such attempts at law-making by national courts may not always attain their goal but may exert adverse effects which are harmful for the international legal order. Sentenza 238/2014 may have an impact on three different yet related issues central to the future development of international law: the relationship between international and national law, exceptions to immunities, and individual reparations in cases of mass atrocities.This chapter criticises law-making through non-compliance with international judicial decisions by national courts. Judges in democratic states under the rule of law who try to push for law-reform, by initiating non-compliance with decisions of international courts, should be aware that they may act in the company, and thereby in support of, courts in regimes with autocratic tendencies, such as the Russian Constitutional Court, which refuses to comply with judgments of the European Court of Human Rights. Furthermore, the chapter argues that immunity from jurisdiction and immunity from execution should be kept distinct and that human rights exceptions should not be applied to immunity from execution. Such a differentiation remains justified because measures of constraint against property used for government non-commercial purposes intrude even further onto sovereign rights than the institution of proceedings before courts in the forum state. It is particularly difficult for states to protect assets and other property situated in a foreign state. These assets may therefore be more susceptible to abusive enforcement measures while simultaneously forming an essential basis for the actual conduct of international relations.The chapter concludes by advocating a cautious approach to individual reparations in cases of mass atrocities. This more cautious approach observes the complexities of ending armed conflicts and negotiating peace deals. An individual right to monetary compensation based on civil claims processes does not allow for taking into account broader political considerations related to establishing a stable post-war order. Such a right is conducive to bilateral settlements between the state parties concerned, which might create new injustices towards other groups of victims. It might also overburden negotiations for a settlement to an ongoing armed conflict.The chapter thereby starts from the assumption that the stability of the international legal order itself as guaranteed by concepts such as immunities or the respect for its judicial organs serves to protect human rights, albeit indirectly.
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Winch, Phoebe D. "State Immunity and the Execution of Investment Arbitration Awards." In Public Actors in International Investment Law, 57–77. Cham: Springer International Publishing, 2021. http://dx.doi.org/10.1007/978-3-030-58916-5_4.

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AbstractThe doctrine of state immunity occupies a fundamental place in international law. The application of the doctrine, largely left to the national laws of states, is not consistent. One particular area of inconsistency is the treatment of the plea of state immunity from execution of arbitral awards resulting from investor-state disputes. The issue of state immunity from execution has come to the fore in light of a number of recent attempts by award-creditors to attach their awards against the assets of a foreign state located in jurisdictions considered to be “pro-enforcement”, such as France and Belgium. This chapter considers the plea of state immunity and the execution of investment arbitration awards from the perspective of the forum state. In particular, it addresses the introduction of procedural and substantive amendments to French and Belgian laws on state immunity following these attempts by award-creditors to seize foreign state assets located in their respective jurisdictions. The chapter posits a way forward for investors seeking to navigate the landscape governing state immunity from execution.
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Conference papers on the topic "Immunity of jurisdiction"

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"Immunity from Jurisdiction with Special View to Kuala Luampur War Crime Tribunal." In International Conference on Trends in Economics, Humanities and Management. International Centre of Economics, Humanities and Management, 2015. http://dx.doi.org/10.15242/icehm.ed0315033.

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