Summary | Public International Law | Jaar 3
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Week 4: International investment law
In international law, it is often said that states have jurisdiction over their territories and that this
jurisdiction is, in principle, exclusive and unlimited. Although, states shall not subject other states and
their representatives to their jurisdiction, hence the existence of state immunity.
States can typically claim jurisdiction on the basis of five (overlapping) principles:
I. Principle of territory: 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. What happens when two or more states get involved? Both states can
claim jurisdiction.
● Subjective territory: a state can claim jurisdiction because the crime took place on its
territory.
● Objective territory: a state can claim jurisdiction because it felt the effects.
II. Principle of nationality: states can claim authority over their nationals no matter where they
are. In case of dual nationality, both states would be entitled to claim their authority, although
in practice there will usually be a dominant nationality whose state will be keener to claim
authority than the other.
III. Principle of protection: states can claim jurisdiction over activities that endanger them, even if
those activities take place elsewhere and are ascribed to non-nationals [diplomates].
IV. Principle of passive personality: it holds that a state can prosecute anyone who harms its
nationals, no matter where this occurs. While the nationality principle is based on the
nationality of the suspect, the passive personality takes the nationality of the victim as its
starting point [highly controversial].
V. Universality principle: under this idea, some crimes are so abhorrent that all states can
legislate and prosecute, regardless of the involvement of their territory or nationals. This
principle has been utilised in connection with gross violations of human rights. This is also a
controversial principle, even though it is accepted, hence IL permits states to exercise
universal jurisdiction, few treaties actually make universal jurisdiction compulsory.
● It is important to note that universal condemnation of a crime is NOT the possibility of
universal jurisdiction. Like the Genocide Convention which prohibits genocide, but
does not provide for universal jurisdiction.
It follows from the above that states sometimes claim jurisdiction over acts occurring outside their
boundaries. If any of the other principles can be invoked, then this causes few problems, but
sometimes the exercise of extraterritorial jurisdiction is rendered problematic.
So if states can claim jurisdiction on the basis of several distinct principles, it would also logically
seeme to follow that several states may be able to claim jurisdiction over one and the same act:
concurrent jurisdiction.
Module 10: State Immunity
• State immunity: refers to the immunity of a state from the exercise of jurisdiction by the domestic
courts of another state, as well as the immunity of a state from enforcement measures. State
immunity is the immunity that a State enjoys in respect of:
a. Itself as an entity – jurisdictional immunity:
The immunity of a state from the exercise of jurisdiction (by the organs of another state,
notably its courts). Jurisdictional immunity proves a state with immunity with respect to the
inquiry of a foreign court into a specific claim and als immunity with regard to such court’s
adjudication, by means of a judgement or a declaration of rights and obligations of the parties
involved. In Articles 7 and 8 UNCSI are the conditions and implications of a state’s consent
laid down to the exercise of jurisdiction.
b. Its property – enforcement immunity:
The immunity of a state from enforcement (by the organs of another state, notably its courts).
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Enforcement immunity provides immunity with respect to the application, by a foreign state, of
coercive measures vis-ávis another state and its property; it thereby involves more
all-encompassing and intrusive mechanisms than the exercise of jurisdiction. Enforcement
measures concern, for instance, the making and execution of mandatory orders against a
state in respect of attachment of property, restitution, damages, penalties and production of
documents and witnesses. Property of the state should be interpreted in a broad sense,
covering all sorts of assets including immovable property, land, premises, movable property,
and a variety of rights such as intellectual property rights and bank accounts. The decisive
criterion is that such property is owned by a state.
→ Immunity from enforcement is in principle absolute. However, a restrictive approach
removes such immunity with respect to commercial transactions by states has become
generally accepted.
The concept of state immunity 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 on the basis of the status of a State as an international legal personality.
→ Note: state immunity is closely related to [but also very different from] the concepts of diplomatic immunity and
the immunity of high ranking state officials from criminal jurisdiction. These are immunity ratione materia: they
concern the individual persons (state officials) as opposed to the state itself as an state entity [immunity ratione
personea]. Since High-Ranking State Officials derive their immunity from the state, the State alone can confer or
remove immunity to its officials.
→ State immunity also differs from the immunity of IOs, which is more closely related to the concept of diplomatic
immunity [refers to immunity enjoyed by diplomats of a sending state, in the receiving state and thus ensures that
diplomats can do their work on behalf of their sending state without interference by the receiving state].
Law of State Immunity
The concept of State immunity originated in and is still based on customary international law. The
customary IL rules have been codified to a certain extent, in several conventions; UNCSI which was
adopted by the General Assembly but has not yet entered into force. Nevertheless, due to its
codification of customary roles.
In Jurisdictional Immunities of the State, the Court referred to the UNCSI when it discussed the
customary rules of state immunity and applying them to cases at hand [para. 53 t/m 58].
Defining the scope of the immunity plea
In the event of legal proceedings before a domestic court of another state, a state may invoke state
immunity which, when successful, forms a restraint on the exercise of jurisdiction by the foreign court.
Which matters? Immunity can be pleaded before any tribunal exercising judicial or quasi-judicial
powers, including administrative tribunals, whether it concerns criminal, civil, family or other matters.
However, it is important to note that state immunity does not preclude responsibility. In other words,
state immunity only prevents a national court from hearing a given case that involves a foreign state. It
does not result in an exemption of that state from responsibility for internationally wrongful acts.
→ An example is Jurisdictional Immunities of the State, in which the Court had to examine whether
Italy had failed to respect the immunity of Germany by instigating proceedings against Germany, in an
Italian court, for the treatment of Italian citizens in WWII [para. 54]. The ICJ ruled in favour of
Germany, reasoning that Italy should have respected the immunity of Germany. As the judgement
also shows, an unjustified denial of state immunity may result in State responsibility.
Which entities? Article 2(1) UNCSI illustrates that state immunity is all-encompassing, as it protects
the state as an international legal person as well as its organs (parliament, components of
government, entities and representatives). Furthermore, according to this paragraph [which reflects
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customary IL] all other entities and state agencies who are entitled to and do perform acts in exercise
of sovereign authority, are also protected.
Exceptions to jurisdictional immunity
In certain circumstances, immunity may not be invoked.
I. The waiver of immunity by a state: a state can decide to waive its immunity, thereby giving
consent to the exercise of jurisdiction by the domestic court of another state. States may
agree to waive its jurisdictional immunity by means of:
● a treaty,
● by a written contract, or;
● via a declaration before the court in question.
Jurisdictional immunity may be waived, for instance, as a sign of friendly relations among states; or a
state may specifically request this from another state before establishing economic relations between
them. For a waiver of immunity to be considered valid, it needs to meet three criteria:
a. Consent to waive jurisdictional immunity must be given by an authorised
representative of the state.
b. The expression of such consent must be unequivocal and certain. In other words: it
could be in writing or expressed implicitly by the state in the proceedings (e.g. by
appearing in court without arguing an immunity plea).
c. A weaver of immunity from enforcement requires a separate waiver of immunity from
jurisdiction. In other words: a waiver of jurisdictional immunity does not imply a waiver
of immunity from enforcement (Article 20 UNCSI).
II. The restrictive immunity doctrine: no immunity in case of commercial transactions. This
doctrine regulates the immunity of states and their property in the courts of foreign states. In
case of sovereign acts [acts that only states can do] the state retains its jurisdictional
immunity. But for acts with a private/commercial law nature [acts that anyone can do] the
state cannot invoke immunity in national proceedings before foreign courts.
● Article 10(1) UNCSI: lays down the general rule which prohibits the immunity plea in
case of commercial acts.
● Articles 10-17 UNCSI: more restrictions to the immunity plea.
A difficulty regarding the application of the restrictive
immunity approach, is how a distinction can be
drawn between sovereign acts and commercial acts.
According to state practice, a distinction can be
made between these two types of acts by looking at
the nature of the act or its purpose. Both criteria are
laid down in Article 2(2) UNCSI.
There is no consensus as to which test should
prevail in practice, but there seems to be a slight
preference from scholars to give the nature-test
more weight than the purpose-test, based on the
argument that reliance on the purpose-test alone
could result in abuse, meaning that no act would be
qualified as a commercial transaction.
Restrictions to enforcement immunity
In Jurisdictional Immunities of States the ICJ affirmed, the international rules ‘governing immunity
from enforcement and those governing jurisdictional immunity are distinct, and must be applied
