Public International Law - Week 6 Lecture - Immunities - PDF

Public International Law Week 6 Lecture : Immunities Anna Schmitt Nagelbach  Immunities - In international law certain persons and institutions are immune from the jurisdiction of foreign municipal courts. - The principal o...

Public International Law Week 6 Lecture : Immunities Anna Schmitt Nagelbach  Immunities - In international law certain persons and institutions are immune from the jurisdiction of foreign municipal courts. - The principal ones are foreign states, and foreign Heads of State, Diplomatic agents, Consuls, and international institutions, their officials and agents. Why are states or individuals immune from claims in another state? What is the rationale behind this idea? * promoting cooperation and peaceful relations between states Lecture 1 * protects sovereignty Anna Schmitt Nagelbach  Sovereign Immunity Equality of states A state has immunity from suit (claims) in the courts of another state: Article 2(1) UNC provides “the organization is based on the principle of the sovereign equality of all its Members” Domestic courts generally for individuals, not states Schooner Exchange Lecture v McFaddon 1 & Others case (US Supreme Court, 1812) Anna Schmitt Nagelbach Jurisdiction of a nation within its own territory is absolute. One sovereign cannot be tried in the courts of another. Schooner was a French war ship  did not fall within US jurisdiction The Schooner Exchange v McFaddon What happened in this case? The Schooner Exchange was a ship owned by John McFaddon. - sailed from Baltimore for St. Sebastian, Spain in 1809 - was then seized by order of Napoleon - was then armed and commissioned as a public vessel of the French government; renamed “Balaou” Lecture - later Balaou docked at1 a US port due to bad weather. McFaddon claimed Annathat he owned Nagelbach Schmitt it, and it had been illegally seized by France - district Court and Supreme Court found that the US did not have jurisdiction Jurisdiction of a nation within its own territory is absolute. One sovereign cannot be tried in the courts of another.  Sovereign Immunity Distinguising between sovereign (public) acts and commercial acts : Jure imperii  sovereign acts of states  sovereign immunity for a state possible Jure gestionis  state commercial transactions  no sovereign state immunity - NS enters into contract with foreign company to build new Lecture 1 trains - The company alleges that the NS Anna Schmitt Nagelbach did not pay them properly and brings a claim in its own state’s jurisdiction against the NL - The Dutch government says that NS is immune as a state-owned company  Personal Immunity Personal Immunity / ratione personae - Protects certain individuals from civil and criminal jurisdiction in foreign states - Heads of state, heads of government, foreign ministers - in public acts : foreign minister, ambassador - Also covers private acts - Lasts only while the person remains in their function Arrest Warrants Case (DRC v. Belgium) 2000 Can Lecture high-ranking 1 state officials accused of grave crimes (CAH) enjoy immunity from other states’ courts? Anna Schmitt Nagelbach  ICJ : “the immunities enjoyed under international law…do not represent a bar to criminal prosecution in certain circumstances…”  Arrest Warrants case Arrest Warrants Case (DRC v. Belgium) 2000 Can high-ranking state officials accused of grave crimes (CAH) enjoy immunity from other states’ courts?  ICJ : “the immunities enjoyed under international law…do not represent a bar to criminal prosecution in certain circumstances…” Belgium put out arrest warrants for high-ranking DRC officials - including Lecturethe1 Foreign Minister Kabila – accused of CAH and war crimes Anna Schmitt Nagelbach The judgment was controversial on scope and limitations of universal jurisdiction - Belgium obligated to prosecute / extradite those accused of most serious crimes  Functional Immunity Functional immunity / ratione materiae - Based on the official function - Extends to all state agents involved (broader scope than personal immunity) - Extends beyond the time holding position for legitimate official state functions Pinochet case Lecture - torture not a1 legitimate state function  no functional immunity Anna- Schmitt Nagelbach former heads of state NOT immune from prosecution for grave violations of IL  Vienna Convention Vienna Convention on Diplomatic Relations (1961) - functional necessity of diplomatic privileges and immunities for IR - character of diplomatic mission as representing its state - diplomatic relations based on consent Art. 41 and 42 – diplomats Lecture 1 - bound to respect national laws and regulations; not to Anna Schmitt interfere Nagelbach in the internal affairs of that state persona non grata  Libyan Embassy 1984 Lybian diplomat stationed in London fired shots from Embassy at demonstrators on the street Killed a British policewoman and injured others  Diplomatic crisis between the two countries Lybia refused to extradite the diplomat : diplomatic immunity Lecture 1 UK did not use persona non grata – Why not? Anna Schmitt Nagelbach Lybia recalled Ameri to Lybia ; he returned home Abuse of immunity? Parking Diplomats immune from parking rules: Unpaid traffic tickets to the UK owed by foreign diplomats : 12,000,000 British pounds NYC is owed over 16 million USD in unpaid parking tickets from diplomats Lecture 1 Anna Schmitt Nagelbach  Equality of states Why does a state have immunity from suit (claims) in the courts of another state? Article 2.1 of the UN Charter provides that “the organization is based on the principle of the sovereign equality of all its Members” Lecture 1 Anna Schmitt Nagelbach  Germany v. Italy Jurisdictional Immunities of States, ICJ 2012 - civil proceedings - Acts committed by the Third Reich during WWII (deportation, forced labor) - Italy brought claims against Germany in Italian courts - ICJ held that denying Germany immunity = breach of Italy’s international obligationsLecture 1 - Anna Schmitt state not deprivedNagelbach of immunity based on accusations of serious violations of int’l HR law / IHL - Universal jurisdiction (states enjoy sovereignty = immunities ; individuals can be held accountable