Journal articles: '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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Treichl, Clemens, and August Reinisch. "Domestic Jurisdiction over International Financial Institutions for Injuries to Project-Affected Individuals." International Organizations Law Review 16, no. 1 (January 7, 2019): 105–36. http://dx.doi.org/10.1163/15723747-01601005.

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Project-affected individuals are increasingly bringing tort claims against international financial institutions in domestic courts. In the US, such plaintiffs such plaintiffs have regularly failed to overcome the obstacle of the defendant institutions’ jurisdictional immunity under the International Organizations Immunities Act. In pending litigation, the US Supreme Court has resolved a long-standing debate as to its scope. This paper examines the issue of jurisdictional immunity in the context of international project finance. It focuses on the specific frameworks established in treaties, analyses the interplay between international and domestic US norms and looks at possible implications of the exercise of domestic jurisdiction. A key finding is that US courts, at least previously, used to grant more extensive immunities than international law required. While doubts persist as to whether domestic courts are a suitable venue for claims brought by project-affected people, existing means of international dispute settlement should be strengthened.

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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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13

Nelson, Caleb. "Sovereign Immunity as a Doctrine of Personal Jurisdiction." Harvard Law Review 115, no. 6 (April 2002): 1559. http://dx.doi.org/10.2307/1342562.

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Burián, László. "Jurisdiction v. State Immunity in the 21st Century." Hungarian Yearbook of International Law and European Law 2, no. 1 (December 2014): 191–205. http://dx.doi.org/10.5553/hyiel/266627012014002001013.

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15

Hailbronner, Kay. "Immunity of International Organizations from German National Jurisdiction." Archiv des Völkerrechts 42, no. 3 (2004): 329. http://dx.doi.org/10.1628/0003892042683852.

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16

Fox, Hazel. "Enforcement Jurisdiction, Foreign State Property and Diplomatic Immunity." International and Comparative Law Quarterly 34, no. 1 (January 1985): 115–41. http://dx.doi.org/10.1093/iclqaj/34.1.115.

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17

Gombos, Katalin. "Rules of jurisdiction in the new Hungarian private international law." Hungarian Journal of Legal Studies 61, no. 1 (July 5, 2021): 52–70. http://dx.doi.org/10.1556/2052.2021.00285.

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AbstractOn 1 January 2018, a new act entered into force in Hungary. This act is the new code of private international law in Hungary. The basic purpose of this article is to present the jurisdictional rules of the new law. In the description I discuss how the new act differs from the rules of the old code. In addition, I focus on international and European trends in private international law. I also examine the extent to which the new Hungarian code complies with these trends, as well as discussing the peculiarities of the Hungarian regulation. The new Code uses the concept of jurisdiction as a rule for the ‘international distribution’ of cases and in the sense of public international law. Therefore, I also address in this article the definition of jurisdiction and other conceptual issues, the doctrines of immunity and the description of the jurisdictional system of the Code. I present the relationship between international, European and Hungarian rules which are relevant in private international law. In addition, I provide an overview of the novel system of jurisdictional rules in the Code.

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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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Maximilian, Pal. "Il “privilegium fori” nel codice di Teodosio II." Studia Universitatis Babeș-Bolyai Theologia Catholica 65, no. 2 (December 31, 2020): 52–70. http://dx.doi.org/10.24193/theol.cath.latina.2020.lxv.2.03.

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The article intends to present, briefly, one of the most important ecclesiastical privileges: privilegium fori, which is found in the Codex of Theodosius as a particular guarantee of the respect due to the sacred nature of clergy and freedom in the performance of their duties. According to this privilege, certain cases are removed from the jurisdiction of the State and devolved to the ecclesiastical judge, according to canonical discipline. It constitutes a form of personal immunity to civil law. By virtue of the privilegium fori, clergy must be tried only by ecclesiastical courts, to the exclusion of all others and without distinction of classes. This jurisdictional bond of clerigy to their own courts arises from a subjective delimitation of the judicial power of the Church and not from a privileged situation as it may be deduced from the expression with which it is known. If one understands that this is a privilege, then this is based on a mistaken premise, in other words, to attribute ordinary and universal character to State jurisdiction and special character to ecclesiastical jurisdiction, which leads to the qualification of the exemption from civil jurisdiction enjoyed by ecclesiastics as a personal privilege. The truth is very different, because the jurisdiction of the Church is its own, sovereign and autonomous, as derived from a Society that has the same characteristics. Moreover, jurisdiction being a correlative concept of the process, the independence of the canonical process carries with it that of ecclesiastical jurisdiction.

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Blokker, Niels. "International Organizations: the Untouchables?" International Organizations Law Review 10, no. 2 (June 20, 2014): 259–75. http://dx.doi.org/10.1163/15723747-01002002.

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Immunity rules belong to the traditional standard rules of international organizations. It has long been accepted that international organizations and their staff need to enjoy immunity from the jurisdiction of national courts. This understanding is generally founded on the principle of functional necessity: international organizations need immunity in order to be able to perform their functions. However, the principle of the immunity of international organizations is increasingly criticized: if national courts cannot exercise jurisdiction over international organizations, who can? After outlining the intentions behind convening this Forum, this paper will discuss the origin of the immunity rules of international organizations. Next, it will give a brief overview of the codification of such rules, both in the 1940s and in recent years. Finally, it will present some observations on the question of whether there is a need to ‘update’ or revise the current immunity rules of international organizations.

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Nigro, Raffaella. "La disciplina dei militari impegnati all'estero in missioni umanitarie: in margine al caso Lozano." DIRITTI UMANI E DIRITTO INTERNAZIONALE, no. 3 (December 2009): 565–90. http://dx.doi.org/10.3280/dudi2009-003007.

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- In the well-known Lozano case, an Italian intelligence agent, Mr Nicola Calipari, remained killed in 2005 by an American soldier, Mr Mario Luis Lozano, while entering a US checkpoint on the way to the Baghdad airport soon after securing the release of an Italian journalist from Iraqi kidnappers. In the ensuing case, Italian courts addressed a number of sensitive questions, including that of jurisdiction over national troops involved, directly or indirectly, in so-called "humanitarian missions" abroad. Italian courts did have jurisdiction over the killing under Italian domestic law. Indeed, the murder of Mr Calipari can be regarded as a "political crime" under Article 8 of the Italian penal code. On such a premise, the question is whether Article 8 was superseded by a customary international law rule under Article 10 of the Italian Constitution aimed at excluding jurisdiction over Mr Lozano. State practice suggests that neither a customary rule on the exclusive jurisdiction of the sending State (as claimed by the Court of Assise of Rome in 2007) nor a customary rule on Mr Lozano's functional immunity (as claimed by the Court of Cassation in 2008) are established in customary international law. Rather, State practice reveals that a number of States are likely to recognize immunity from jurisdiction to the armed forces only in certain specific circumstances. Moreover, such immunity is quite different from the functional immunity traditionally enjoyed by diplomatic and consular agents, as well as from the immunities enjoyed by other high-ranking State officials, such as the Head of State, the Head of Government and the Minister for Foreign Affairs.

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Milisavljevic, Bojan. "The immunity of state officials from foreign criminal jurisdiction." Nauka, bezbednost, policija 20, no. 1 (2015): 17–30. http://dx.doi.org/10.5937/nbp1501017m.

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HUANG, H. "On Immunity of State Officials from Foreign Criminal Jurisdiction." Chinese Journal of International Law 13, no. 1 (March 1, 2014): 1–11. http://dx.doi.org/10.1093/chinesejil/jmu009.

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CHEPEL, O. D. "DIPLOMATIC AGENT’S IMMUNITY FROM JURISDICTION: THEORETICAL AND LEGAL ASPECTS." Law and Society, no. 4 (2021): 258–63. http://dx.doi.org/10.32842/2078-3736/2021.4.35.

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Murphy, Sean D. "Immunity Ratione Personae of Foreign Government Officials and Other Topics: The Sixty-Fifth Session of the International Law Commission." American Journal of International Law 108, no. 1 (January 2014): 41–57. http://dx.doi.org/10.5305/amerjintelaw.108.1.0041.

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The International Law Commission held its sixty-fifth session in Geneva from May 6 to June 7, and from July 8 to August 9, 2013, under the chairmanship of Bernd H. Niehaus (Costa Rica). The Commission devoted most of the sixty-fifth session to discussing three topics: immunity of state officials from foreign criminal jurisdiction, subsequent agreements and subsequent practice in relation to the interpretation of treaties, and protection of persons in the event of disasters. Notably, the Commission provisionally adopted three draft articles and commentaries identifying three categories of senior governmental officials—heads of state, heads of government, and foreign ministers—as entitled to immunity ratione personae from foreign criminal jurisdiction for their public or private acts, an immunity that ceases once they leave office.

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Stephens, Tim, and Donald R. Rothwell. "The LOSC Framework for Maritime Jurisdiction and Enforcement 30 Years On." International Journal of Marine and Coastal Law 27, no. 4 (2012): 701–9. http://dx.doi.org/10.1163/15718085-12341250.

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Abstract Rules of jurisdiction and immunity are central to public international law, and equally vital to the United Nations Convention on the Law of the Sea (LOSC). The LOSC established an extensive framework to regulate legislative and enforcement jurisdiction over ocean space; one that has proven to be remarkably durable, despite lingering uncertainties in the compromise reached between coastal and maritime states. State practice diverging from the LOSC’s jurisdictional scheme has been isolated and infrequent, and the scheme has been strengthened and elaborated by regional and global treaties addressing contemporary oceans governance challenges, especially in the arenas of pollution control and fisheries management. As the LOSC turns thirty, a key challenge will be keeping in check the designs of coastal states over adjacent maritime space as they look seawards to address pressing concerns of resource, food, energy and environmental security.

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Reinisch, August. "To What Extent Can and Should National Courts ‘Fill the Accountability Gap’?" International Organizations Law Review 10, no. 2 (June 20, 2014): 572–87. http://dx.doi.org/10.1163/15723747-01002016.

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International organizations are generally recognised as requiring privileges and immunities, in particular immunity from the jurisdiction of domestic courts, in order to remain independent and unimpeded in the fulfilment of their functions and duties. However, this approach often neglects the effect of a grant of immunity to international organizations, in that potential claimants may be deprived of their ability to raise claims against international organizations before the ‘natural forum’ of domestic courts. Recently, both legal doctrine and practice have devoted particular attention to the potential accountability gap created by sweeping jurisdictional immunities of international organizations. This has even led to calls for filling the gap by denying immunity. This paper will outline the development of the increased awareness of accountability gaps and assess the reactions so far. Finally, it will turn to an evaluation of the suitability of national courts as institutions for securing the accountability of international organizations.

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Ssenyonjo, Manisuli, and Saidat Nakitto. "The African Court of Justice and Human and Peoples’ Rights ‘International Criminal Law Section’: Promoting Impunity for African Union Heads of State and Senior State Officials?" International Criminal Law Review 16, no. 1 (February 5, 2016): 71–102. http://dx.doi.org/10.1163/15718123-01601003.

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On 27 June 2014 the African Union (au) Assembly adopted a protocol entitled ‘Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights’. This Protocol contains an annex entitled ‘Statute of the African Court of Justice and Human and Peoples’ Rights’. The Protocol and the Statute annexed to it provide for the establishment of a regional court in Africa to be known as the ‘African Court of Justice and Human and Peoples’ Rights’ (African Court). This Court will, among others, exercise criminal jurisdiction over a wide range of international crimes involving individual criminal responsibility and corporate criminal liability over legal persons (with the exception of States), which goes beyond any other international court or hybrid tribunal. This article considers reasons for establishing a regional court in Africa with criminal jurisdiction and examines the likely effectiveness of the African Court focussing on the wide jurisdiction conferred on the Court; the impact of immunity from criminal prosecution granted to serving au heads of State and other undefined ‘senior State officials’; and the need to strengthen national criminal jurisdictions to enable them to prosecute international crimes in Africa.

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Haddadi, Mahdi. "Jurisdiction of Iranian Courts to Deal with Civil Lawsuits against Foreign States." International Letters of Social and Humanistic Sciences 47 (February 2015): 46–54. http://dx.doi.org/10.18052/www.scipress.com/ilshs.47.46.

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The principle of immunity of state and their property from foreign state courts is a natural consequence of the adoption of the principle of equal sovereignty of states in the International law and the international community. The principle, except with the consent of a state and outside the exceptions generally accepted in international practice, prevents domestic courts to exercise jurisdiction over a foreign state or their property. However, some countries contrary to the exceptions have taken some steps to violate the principle of state immunity through legislative and judicial measures. In this regard, the Iranian government has been the subject of numerous lawsuits in Federal courts of the United States through which it has been sentenced in absentia to pay more than $ 12 billion. "Thelaw of Jurisdiction of the Justice of the Islamic Republic of Iran to Deal with Civil Lawsuits against Foreign States" is countermeasures to deal with the government violated the immunity of the Iranian government or its officials. Regardless of the many conceptual objections on this law, the act is in place to respond to a political rival with strong political incentives and without approaching to the foundations and the concepts of immunity of the state and adopting a clear stance against it. Thus, despite the adoption of this countermeasure, unfortunately, the Iranian government lacks a coherent formulated policy on the subject of the state immunity and in particular on how to deal with the governments violated its immunity.

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Fox, Hazel. "Commentary: The Advisory Opinion on the Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission of Human Rights: Who Has the Last Word on Judicial Independence?" Leiden Journal of International Law 12, no. 4 (December 1999): 889–918. http://dx.doi.org/10.1017/s092215659900045x.

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A critical analysis, considering first, the legal competence and propriety of the Court in giving an opinion pursuant to the dispute settlement machinery of the Convention on the Privileges and Immunities of United Nations, whereby advisory jurisdiction over disputes of the UN is equated to contentious jurisdiction between consenting states; and second, the effect in municipal law of a state's obligation to respect the UN Secretary-General's certificate that a UN expert is entitled to immunity from legal process. The Court preserves resort to local courts but requires communication of the UN certificate and immunity to be dealt with expeditiously as a preliminary issue.

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Keitner, Chimène I. "Case of Jones and Others v. the United Kingdom (Eur. Ct. H.R.)." International Legal Materials 53, no. 3 (June 2014): 538–79. http://dx.doi.org/10.5305/intelegamate.53.3.0538.

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In recent years, national and international courts have grappled with the questions of foreign state immunity and foreign official immunity from domestic jurisdiction over claims arising from human rights abuses committed under color of foreign law. Foreign state immunity involves the immunity ratione personae of the state as a juridical person, as well as that of the state’s agencies, instrumentalities, and political subdivisions. Foreign official immunity involves the immunity ratione personae of incumbent heads of state and diplomats, as well as the immunity ratione materiae of other current and former officials for acts performed in the scope of their official duties.

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Clark, Roger S. "Peacekeeping Forces, Jurisdiction and Immunity: A Tribute to George Barton." Victoria University of Wellington Law Review 43, no. 1 (June 1, 2012): 77. http://dx.doi.org/10.26686/vuwlr.v43i1.5047.

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George Barton wrote his PhD thesis at Cambridge on "Jurisdiction over Visiting Forces". He published three spinoffs from the thesis in the British Yearbook of International Law. In all of these – each a tour de force in examining elusive and arcane State practice – he was at great pains to deny various supposed customary rules recognising immunity of foreign armed forces in the courts of a State in which they were visiting by consent. He worked in the United Nations Secretariat in New York just as the practice of United Nations peacekeeping began to develop. In this tribute, I try to imagine that he returned to the subject some 60 years later. Affecting, as best I can, the style of Dr Barton circa 1950, I offer some guesses as to how he might assess six decades of developments in law and practice in the multilateral context in which the United Nations, and especially the Secretariat and the Security Council, have been major actors.

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Kim, Taehon. "The Relationship between Diplomatic and State Immunity from the Perspective of Immunity from Adjudicative Jurisdiction." Korea International Law Review 58 (February 28, 2021): 43–71. http://dx.doi.org/10.25197/kilr.2021.58.43.

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Dodge, William S. "Foreign Official Immunity in the International Law Commission: The Meanings of “Official Capacity”." AJIL Unbound 109 (2015): 156–60. http://dx.doi.org/10.1017/s2398772300001355.

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Of all the issues facing the International Law Commission (ILC) in its work on the topic of “Immunity of State Officials from Foreign Criminal Jurisdiction,” how to define “act performed in an official capacity” is certainly one of the most difficult and important. If serious international crimes, like torture, are considered acts performed in an official capacity, then foreign officials responsible for such crimes may (unless an exception applies) be immune from criminal jurisdiction in other states for such acts even after they leave office.

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Shen, Qinmin. "Methodological Flaws in the ILC's Study on Exceptions to Immunity Ratione Materiae of State Officials from Foreign Criminal Jurisdiction." AJIL Unbound 112 (2018): 9–15. http://dx.doi.org/10.1017/aju.2018.9.

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In July 2017, the UN International Law Commission (ILC) provisionally adopted Draft Article 7 on exceptions to immunity ratione materiae of state officials from foreign criminal jurisdiction, by a recorded vote of twenty-one votes in favor, eight votes against, and one abstention. In the view of the majority of ILC members, immunity ratione materiae does not apply to the six international crimes listed in the draft article—genocide, crimes against humanity, war crimes, apartheid, torture, and enforced disappearance—either because of a limitation or because of an exception. The unusual practice of adopting a draft article by recorded vote demonstrated the deep controversy among the ILC members themselves. After all, exceptions to official immunity lie at the core of the project of “Immunity of State Officials from Foreign Criminal Jurisdiction” that was started a decade ago by the ILC. This divisive Draft Article 7 naturally garnered criticism and equally deep controversy among states in discussions on the ILC's work report at UN General Assembly Sixth Committee in late October 2017.

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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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Ryngaert, Cedric. "The Immunity of International Organizations Before Domestic Courts: Recent trends." International Organizations Law Review 7, no. 1 (2010): 121–48. http://dx.doi.org/10.1163/157237310x523803.

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AbstractThis article addresses the international organizations' immunity defence before domestic courts, and its relationship with the organizations' internal dispute settlement mechanisms. The focus of the article lies primarily on private law disputes between international organizations and individuals, and on (employment) disputes between organizations and their staff in particular. It draws inductively on cases that have recently been decided or made available, and that draw attention to three main issues: 1. the legal nature of the immunity of international organizations, 2. the weighing of the individual's right to a remedy and the organization's immunity and, to a lesser extent, 3. the relationship between the immunity from jurisdiction and the immunity from enforcement.

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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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Devaney, James G., and Christian J. Tams. "In re Arbitration Between the Italian Republic and the Republic of India Concerning the “Enrica Lexie” Incident." American Journal of International Law 115, no. 3 (July 2021): 513–19. http://dx.doi.org/10.1017/ajil.2021.25.

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On May 21, 2020, a Tribunal established under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) rendered an Award regarding the 2012 Enrica Lexie incident, which involved the death of two Indian fishermen at the hands of Italian Marines. The Award is lengthy and wide-ranging, finding that: (1) Italy and India had concurrent jurisdiction over the incident; (2) the Tribunal had incidental jurisdiction to determine the immunity of the Italian Marines; (3) the Marines enjoyed immunity as state officials; but nevertheless that (4) India was entitled to compensation for the loss of life, physical harm, damage to property, and moral harm. The Award has been received more positively by Italy than India, but neither party has indicated that they intend to do anything other than comply with it.

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Bulykina, Tetiana. "Problems of implementation of immunity of state officials from criminal jurisdiction." Entrepreneurship, Economy and Law 5 (2019): 333–36. http://dx.doi.org/10.32849/2663-5313/2019.5.62.

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41

Turns, David. "Pinochet's fallout: jurisdiction and immunity for criminal violations of international law." Legal Studies 20, no. 4 (November 2000): 566–91. http://dx.doi.org/10.1111/j.1748-121x.2000.tb00160.x.

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This article provides a general overview, and analysis of the litigation surrounding General Augusto Pinochet's detention in London in 1998 and the subsequent attempts to extradite him to Spain, for trial on charges relating to human rights abuses committed during the period of his militaty dictatorship in Chile between 1973 and 1990. The complicated sequence of events, from proceedings in the Spanish courts (which started in 1996) up to Pinochet's release from British custody on medical grounds in 2000, is examined und the potential consequences of the two substantive House of Lords decisions are explored from a British-based public international lawyer's perspective. The focus of the analysis is not so much on the detailed technicalities of personal immunity in English law: as on the broad concepts of State jurisdiction over international crimes and immunity for such crimes in international criminal law: notable aspects discussed include the future of universal jurisdiction in customary international law and the position of that law in the UK's municipal courts.

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Gaillard, Emmanuel, and Isabelle Pingel-Lenuzza. "International Organisations and Immunity from Jurisdiction: to Restrict or to Bypass." International and Comparative Law Quarterly 51, no. 1 (January 2002): 1–15. http://dx.doi.org/10.1093/iclq/51.1.1.

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The development of international organisations and the increasing significance of their role in a wide range of fields, has put at issue the adequacy of the rules governing their operation, with regard to the needs of modern justice. In particular, the question of the scope of the immunity from jurisdiction of international organisations is the subject of some debate, as the multiplication of disputes involving international organisations has led courts to address this topic with increasing frequency.1

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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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Forteau, Mathias. "Immunities and International Crimes before the ILC: Looking for Innovative Solutions." AJIL Unbound 112 (2018): 22–26. http://dx.doi.org/10.1017/aju.2018.11.

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The International Law Commision's (ILC's) work on Immunity of State officials from Criminal Jurisdiction, which started ten years ago, has generated over time high expectations. In light of progress in international criminal law, the ILC is expected to strike a reasonable balance between the protection of sovereign equality and the fight against impunity in case of international crimes. It requires the Commission to determine whether or not immunity from criminal jurisdiction applies or should apply when international crimes are at stake. At its 2017 session, the ILC eventually adopted Draft Article 7 on this issue, which proved quite controversial and did not meet states’ approval. The purpose of this essay is to shed some light on the main shortcomings of this provision and to identify possible alternatives that could permit the ILC to overcome the deadlock concerning its adoption.

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Macdonald, Roderick A. "Jurisdiction, Illegality and Fault: An Unholy Trinity." Revue générale de droit 16, no. 1 (May 2, 2019): 69–100. http://dx.doi.org/10.7202/1059311ar.

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The relationship between fault and ultra vires is one of the most difficult aspects of the law of Crown Liability. It sets clearly into relief the policy conflicts which arise when private law risk allocation regimes (the adversarial adjudicative imposition of liability rules grounded in a concept of corrective justice) are invoked to police the functioning of public law risk allocation regimes (the allocation through various non-adjudicative procedures of the benefit and burden according to a variety of conceptions of distributive justice). The Crown Liability Act and article 94 of the Code of Civil Procedure both incorporate as against the Crown rules of private law delictual behaviour which were originally developed for regulating activity between private parties as such. They, therefore, compel courts to determine whether jurisdictional error per se constitutes fault. The history of twentieth century attempts to reconcile ultra vires and fault is a history of the judicial search for boundary criteria between realms of public and private law. These boundaries have been, among others, a good faith test, functional criteria such as judicial and legislative immunity or immunity for planning functions, the notion of breach of statutory duty, and so on. Each of these attempts has ultimately be repulsed by the desire of litigants to recover against the Crown on the widest possible basis. Modern theories of jurisdiction being so all-embracing and modern conceptions of fault being so comprehensive, the courts are constantly being asked to develop an absolute equation between fault and ultra vires. The paper concludes by exploring several options for harmonizing private law and public law risk allocation regimes. It recommends a restructuring of the Crown Liability Act so as (i) to permit recovery on a variety of no fault bases, (ii) to permit recovery even when intra vires acts have been undertaken (if these cause significant or disproportional damage) and (iii) to permit the immunization of certain governmental functions from private law liability even when the decisions in question have been taken in an ultra vires fashion.

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Tanaka, Yoshifumi. "Between the Law of the Sea and Sovereign Immunity: Reflections on the Jurisdiction of the Annex VII Arbitral Tribunal in the Enrica Lexie Incident Case." Law & Practice of International Courts and Tribunals 20, no. 2 (August 17, 2021): 367–93. http://dx.doi.org/10.1163/15718034-12341450.

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Abstract The jurisdiction ratione materiae of an international court or tribunal in a particular dispute settlement system relies on a sensitive balance between the safeguard of the consensual basis of jurisdiction and the need for the effective settlement of international disputes. Thus, the scope of the jurisdiction ratione materiae of an international court or tribunal constitutes a crucial issue in international adjudication. This issue was vividly raised in the 2020 Enrica Lexie Incident arbitration between Italy and India. In this case, the arbitral tribunal constituted in accordance with Annex VII to the UN Convention on the Law of the Sea held that it had jurisdiction to decide the issue of immunity that necessarily arose as an incidental question in the application of the Convention. However, the validity of the Tribunal’s approach needs careful consideration. Therefore, this article critically examines the Arbitral Tribunal’s approach in the Enrica Lexie Incident arbitral award.

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Ronzitti, Natalino. "The Enrica Lexie Incident: Law of the Sea and Immunity of State Officials Issues." Italian Yearbook of International Law Online 22, no. 1 (2013): 1–22. http://dx.doi.org/10.1163/22116133-02201002.

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This article examines the case of the Enrica Lexie, a commercial ship having on board military personnel engaging in anti-piracy duties who was involved in an incident with persons on a fishing vessel off the Indian coast. It takes into consideration India’s claim to exercise its criminal jurisdiction over the Italian marines indicted of having killed two Indian fishermen, the judgments passed by India’s courts and the multiple aspects of the ensuing controversy between India and Italy. It is argued that the two marines enjoy functional immunity, even if it is admitted that India has jurisdiction over the case. The article concludes that new conventional law is needed for incidents like that of the Enrica Lexie paralleling Article 97 UNCLOS on collisions on the high seas.

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Wouters, Jan, and Leen De Smet. "The ICJ's Judgment in the Case Concerning the Arrest Warrant of 11 April 2000: Some Critical Observations." Yearbook of International Humanitarian Law 4 (December 2001): 373–88. http://dx.doi.org/10.1017/s1389135900000908.

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On 14 February 2002, the International Court of Justice (the Court) delivered its judgment in the case concerning the Arrest Warrant of 11 April 2000. In this case, the Court had the opportunity to take an authoritative stance on, and to contribute to the development of, two major questions in the field of immunities and jurisdiction of contemporary international law: do Ministers for Foreign Affairs enjoy immunity against prosecution by national courts of another state for crimes under international law, and how far can a state go in granting universal jurisdiction to its domestic courts?

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Lando, Massimo, and Nilüfer Oral. "Jurisdictional Challenges and Institutional Novelties – Procedural Developments in Law of the Sea Dispute Settlement in 2020." Law & Practice of International Courts and Tribunals 20, no. 1 (March 29, 2021): 191–221. http://dx.doi.org/10.1163/15718034-12341444.

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Abstract In 2020, law of the sea tribunals rendered one decision on jurisdiction and decided one case on the merits. First, the arbitral tribunal in the Azov Sea and Kerch Strait dispute dismissed the jurisdictional objections raised by the Russian Federation and thus will proceed to hear the merits of Ukraine’s claims. Second, the arbitral tribunal in the Enrica Lexie Incident case found, after upholding its jurisdiction in relation to the dispute before it, that the Italian marines who had shot an Indian fisherman in India’s Exclusive Economic Zone were entitled to immunity under international law and that Italy had breached certain provisions of the United Nations Convention on the Law of the Sea (UNCLOS). These two arbitral awards have confirmed and developed certain trends in the jurisprudence of law of the sea tribunals. In addition, a novelty in 2020 was the conclusion of a Model Agreement between Singapore and the International Tribunal for the Law of the Sea (ITLOS), for the latter to be able to discharge its judicial business in Singapore. Last, the Meeting of the States Parties to UNCLOS elected five new members of ITLOS and re-elected two.

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Reinisch, A. "The Immunity of International Organizations and the Jurisdiction of their Administrative Tribunals." Chinese Journal of International Law 7, no. 2 (May 14, 2008): 285–306. http://dx.doi.org/10.1093/chinesejil/jmn020.

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Journal articles on the topic 'Immunity of jurisdiction'

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