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Problem 6 To try or not to tryE-lesson: 10 & 11
Literature: Chapter 5
Legislation: UNCSI & Statute of the International Criminal Court
Case Law: Jurisdictional immunities of the State & The Arrest Warrant
Introduction
State immunity is the immunity that a State enjoys in respect of itself (jurisdictional immunity) and its
property (enforcement immunity) from the jurisdiction of the domestic courts of another State.
The following scenario illustrates what state immunity means:
In State B, a lawsuit is initiated against State A, in the domestic courts of State B.
State immunity of State A means that State A does not have to appear in the courts of State
B;
In other words, State A is immune for the exercise of jurisdiction by State B;
Also, even should State A decide to appear before the courts of State B, any foreign judgment
cannot be enforced with regards to the state property of State A;
In other words, State A enjoys immunity from enforcement.
The concept of state immunity finds its origin in the Latin principle par in parem non habet imperium,
which means that an equal has no power over an equal.
The equals in the case of state immunity being states;
State immunity, therefore, derives from the principle of sovereign equality of States,
as reflected in Article 2(1) UN Charter, which is one of the fundamental principles of
the international legal order.
State immunity is accorded (toegekend) on the basis of the status of a State as an international legal
personality, which is also referred to as an immunity ratione personae.
This is closely related, but different from, the concepts of diplomatic immunity and the
immunity of high ranking state officials from criminal jurisdiction;
Diplomatic immunity and the immunity of high ranking state officials are different forms of
immunity, namely ratione materiae, for example in a functional context.
The immunities of High-Ranking State Officials are derived from the immunity of the State. Therefore,
the State alone can confer (verlenen) or remove immunity with respect to its officials.
Diplomatic immunity refers to immunity enjoyed by diplomats of a sending state, in the
receiving country, the country in which the diplomats work;
It ensures that diplomats can do their work on behalf of the state who send them,
without interference by the receiving state;
It therefore ensures safe passage (doorgang) and prohibits the receiving state to
initiate a lawsuit or prosecution against the diplomats in their domestic courts.
However, diplomats may be expelled by the receiving state to their home state;
The international rules on diplomatic relations have been codified in the
Vienna Convention on Diplomatic Relations.
Five principles
States can typically claim jurisdiction on the basis of five (overlapping) principles. Importantly, they are
not laid down in any multilateral treaty, or even found in domestic legislation.
What happens is that a national criminal code specifies a list of offences, and academic commentators
subsequently deduce that this particular code evidences one or the other of internal law’s principles.
Moreover, international law does not bind States, so they are under no obligation to accept for
example the principle of universal jurisdiction. Except and to the extent that a treaty may provide for
universal jurisdiction in respect of a particular crime.
Many treaties are concluded precisely with a view to coordinate in case of jurisdictional
conflicts.
The first three principles correspond, roughly, to the three defining elements of statehood. Since a
State is defined by having territory, a population, and a government, its jurisdiction enables it to
exercise authority over territory, over its population, and so as to protect its government.
, Since some territory (and a lot of water) is outside the jurisdiction of any single State, some ideas had
to be developed to cover events happening in the interstices between State jurisdictions.
This let to the emergence of a principle of universality as well as the idea that on board ships
and aircraft, flag-state jurisdiction applies;
Some States have accepted a principle of passive personality of jurisdiction, but this is a fairly
recent intervention which is not only considered politically controversial, but is also difficult to
justify in functional terms.
I. Territoriality
The principle of territoriality signifies that sovereignty and territory go hand in hand. The main idea is
that States can exercise authority over all acts that take place on their territory through legislation, and
prosecute all those who violate the laws in force on that territory.
Things may get difficult when two or more States are involved. For example, when a man
standing in State A shoots someone across the border in State B.
In such a case it is generally accepted that both States can claim jurisdiction. State A can do
so on the basis of the theory that the behaviour originated in its territory (subjective
territoriality), whereas State B can invoke (objective territoriality), because the effects of the
action were felt in State B.
II. Nationality
If the principle of territoriality is undisputed (onbetwist), so, too, is the principle of nationality. State can
claim authority over their nationals (including for purposes of prosecution) no matter where they are.
A well-known example is that US nationals are under a duty to pay taxes to the United States,
even if they reside elsewhere;
But the more common field of application is criminal law. The Dutch suspect of a murder
committed in Japan can be prosecuted by the Dutch authorities. Whether this is smart is a
different matter. It seems likely that the production of evidence and the questioning of
witnesses may be easier in Japan than in Holland, but that takes nothing away from the
circumstance that the Dutch have the right to prosecute.
In case of dual nationality (individuals who are nationals of two states), both States would be entitled
to claim their authority. In practice, there will usually be a dominant nationality whose State will be
keener to claim authority than the other.
Jurisdiction on board ships and aircraft is linked to the nationality of these vehicles. This entails that
the legislation of the laws of the country of nationality (the flag State) apply on board.
III. Protection
It is also generally accepted that States can claim jurisdiction over activities that endanger them, even
if those activities take place elsewhere and are ascribed to non-nationals.
For instance, a group of Russian printing counterfeit US dollars in a basement in Hamburg,
Germany, could be subject to the authority of the United States on the basis of this principle;
Territoriality would point to Germany and nationality to Russia, but the United States
could claim jurisdiction by arguing that the national interest was at stake. After all, the
influx of large amounts of counterfeit money could have serious economic effects;
Other examples of crimes are such matters as the planning of a coup d’etat, or immigration
fraud or attacks on diplomats abroad.
State Immunity
Law of State Immunity
The concept of State immunity originated in, and is still based on customary international law. They
have been codified to a certain extent, in several conventions.
The most comprehensive (uitgebreide) convention is the United Nations Convention on
Jurisdictional Immunities of States and Their Property (UNCSI).
The UNCSI has been prepared by the International Law Commission (ILC) and was adopted in 2004
by the UN General Assembly. The General Assembly adopted the UNCSI based on the understanding
that the convention does not cover criminal proceedings and only focuses on immunity of States from
jurisdiction with regard to domestic civil/administrative proceedings.
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