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Immunity in International Law - Summary of the Law
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A summary of relevant case law, legislation and academic commentary of immunity in international law.
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Immunities revisionWhat is immunity?
Allows states/their officials/their property to be exempt from actions brought in domestic courts of foreign
states.
Why do we have immunity? It is vitally important.
- 1) It is necessary for international relations to take place. Officials would not leave their country if
they feared prosecution. Allows open channels of communication. See Denza:
“…constitutes the procedural framework for the construction of IL and international relations. It guarantees
the efficacy and security of the machinery through which States conduct diplomacy, and without this
machinery States cannot construct law whether by custom or agreement on matters of substance.”
- 2) Principle of sovereign equality: if one state’s court could judge officials of one and not vice-versa,
it would make one state subservient to the other. See Marshall CJ in The Schooner Exchange:
every sovereign is understood to waive the exercise of a part of that complete exclusive territorial
jurisdiction, which has been stated to be the attribute of every nation.’
Distinction between State Immunity and Personal Immunity:
- SI attaches to the State/ its organs/ institutions acts of state
- PI attaches to holders of office those who carry out acts of state (diplomats, ambassadors etc.).
Distinction not clearly defined in law. E.g. head of state sometimes treated as organ of state, sometimes as
personal capacity.
Distinction between jurisdiction and immunity:
- Questions of immunity only arise when we have established jurisdiction. No jurisdiction = no need
for immunity.
- See Arrest Warrant Case. Immunity = procedural bar to jurisdiction.
Distinction between immunity and impunity:
- Being immune in a particular domestic court, does not mean other courts cannot hear the claim.
E.g. International C
Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening)
- Immunity does not apply on the international level with I Courts. Immunity in NC impunity in IC.
- Immunity just means not that court.
Sources of law on Immunities in the UK:
- Common law
- CIL (incorporated into domestic law)
- Legislation (State Immunities Act 1978)
- Treaty Law: Vienna Convention on Diplomatic Relations and Diplomatic Privileges Act 1964 which
incorporates the former
What is absolute immunity?
- Traditionally, there was no situation in which a foreign organ could be subject to the jurisdiction of
the UK courts up until the 1960’s. Immunity was absolute.
- Parlement Belge: Immunity ‘[p]uts all the private movable property of a State, which is in its
possession for public purposes, in the same category of immunity as the person of a Sovereign, or of
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