7 : Jurisdiction and immunities

Question 1

What is the doctrine of domaine réservé ? (3)

Answer 1

1/ comprises all the matters that fall within the domestic jurisdiction of the State

2/ the State is the sole judge here, and can thus act as it wishes in these matters

3/ the scope of the domaine réservé has to be evaluated in consideration of the existing rules of IL => when a matter is governed by IL, it no longer falls within the domaine réservé

Question 2

What does the scope of matters falling within the domestic jurisdiction of a State depend on ?

Answer 2

The evolution of IL

Question 3

What is jurisdiction regarding States ?

Answer 3

The authority for States to enact and enforce their laws

Question 4

What are 3 forms of a State’s jurisdiction ?

Answer 4

1/ legislative

2/ executive

3/ judiciairy

Question 5

What are the 4 generally accepted bases of jurisdiction ?

Answer 5

1/ territoriality

2/ nationality

3/ protective principle

4/ universal principle

Question 6

What should the jurisdiction of States be distinguished from ?

Answer 6

Jurisdiction in IDS (based on consent)

Question 7

What justifies territoriality as basis of jurisdiction ? (2)

Answer 7

1/ principle of sovereign equality

2/ principle of territorial sovereignty

Question 8

What is the contribution of the Palmas Islands (Netherlands v. United States) arbitral award of 1928 regarding territoriality as basis of jurisdiction?

Answer 8

stressed territoriality is a foundational element in the contemporary legal order

=> i.e. the principle of the exclusive competence of the State in regard to its own territory

Question 9

What are 2 ways of viewing territoriality as a basis of jurisdiction ?

Answer 9

1/ objective territoriality : takes into account the place where the offence takes place

2/ subjective territoriality : takes into account the place where the effects of the offence take place

Question 10

What explains nationality is a basis of jurisdiction ?

Answer 10

a government is entitled to regulate and exercise jurisdiction over its nationals

Question 11

What are 2 ways of viewing nationality as a basis for jurisdiction ?

Answer 11

1/ active personality : jurisdiction to try an offender who is a national of the State on whose territory the offence took place

2/ passive personality : jurisdiction to try a foreign national for offences committed abroad against a national of the State claiming jurisdiction

Question 12

What does the Nottebohm principle entail regarding the granting of nationality ? (2)

Answer 12

1/ every State is free to determine the rules under which a person may acquire its nationality

2/ this is implied in the wider concept that nationality is within the domestic jurisdiction of a State

Question 13

What is a limit to the liberty of States in the elaboration of rules granting nationality ?

Answer 13

the rules cannot be shaped in a way that deprives an individual of any nationality

Question 14

What does the Nottebohm principle entail regarding the determination of nationality ? (2)

Answer 14

1/ if there is a conflict of nationality, the effective nationality principle applies

2/ the nationality should reflect a real and effective link between the State and the individual

Question 15

How is the nationality of aircrafts and vessels determined ? (2)

Answer 15

1/ 1944 Chicago Convention on Civil Aviation

2/ nationality depends on place of registration

Question 16

How is the nationality of corporations determined ? (3)

Answer 16

1/ no application of the effective nationality principle

2/ nationality of State under the laws of which the corporation is incorporated and in whose territory it has its registered office

3/ nationality of the place the corporation has its seat (siège social)

See ICJ “Barcelona Traction, Light and Power Company, Limited” (1970)

Question 17

What does the protective principle entail regarding jurisdiction ?

Answer 17

It allows a State to exercise its jurisdiction over a foreigner that has committed an act abroad that is deemed prejudicial to that State’s sovereignty

Question 18

What is a limitation to the exercise of jurisdiction based on the protective principle ?

Answer 18

The offence must be linked to a limited list of subject matters

Question 19

What does the universal principle entail regarding jurisdiction ? (2)

Answer 19

1/ State can exercise its jurisdiction based on the idea the offender has committed a particular crime proscribed by the international community

2/ it is the nature of the crime that forms the basis of jurisdiction

Question 20

What is the rationale for universal jurisdiction in CIL ? (2)

Answer 20

1/ hosti humani generis, i.e. the offender is an enemy of all mankind

2/ the universal character of the prohibition of specific crimes confers jurisdiction to all States

=> See ICTY “Furundzija” (1998)

Question 21

What are some characteristics of universal jurisdiction in abstentia ? (3)

Answer 21

1/ there is an absence of any link with the State that is exercising its jurisdiction

2/ see for example laws of Belgium, Germany and Spain

3/ universal jurisdiction in abstentia gives rise to many controversies and to the issue of exorbitant exercise of such jurisdiction

Question 22

Examples of universal jurisdiction allowed by treaty law ? (2)

Answer 22

1/ for certain international terrorist acts (highjacking, terrorist bombing)

2/ for international crimes (GCs + APs ; ICTY ; ICC)

Question 23

What vision of IL and IR does the Lotus case establish ? (2)

Answer 23

1/ principle of liberty : to the extent IL does not prohibit a State from doing something, it can do it (which tends to favor the exercise of extraterritorial jurisdiction)

2/ positivist approach of IL : the rules of IL binding on States emanate from their own free will and restrictions on the independence of States cannot be presumed

Question 24

What type of jurisdiction does the Lotus case prohibit ? (2)

Answer 24

1/ prohibition of extra-territorial enforcement jurisdiction

2/ which has to be distinguished from legislative and adjudicative jurisdiction

Question 25

Which case illustrates the prohibition of extra-territorial enforcement jurisdiction ?

Answer 25

ICJ "Corfu Channel" case (1949) => The UK was not allowed to carry out sweeps in the territorial waters of Albania without the consent of this State (no right of intervention here, but respect of territorial sovereignty)

Question 26

What are some uncertainties surrounding universal jurisdiction ? (4)

Answer 26

1/ the legality of legislative and adjudicative extra-territorial jurisdiction 2/ Lotus principle does not explicitly prohibit the exercise of these types of jurisdiction 3/ but the Lotus principle does not take into account the evolution of IL since 1927 (more courts and tribunals ; consensus on some universally prohibited crimes) 4/ as such, the Lotus principle is ambivalent

Question 27

What are immunities ?

Answer 27

a procedural bar to jurisdiction or enforcement

Question 28

Characteristics of immunities ? (3)

Answer 28

1/ essentially procedural in nature - Jurisdictional Immunities of the State (Germany v. Italy : Greece intervening), 2012 2/ confined to determining whether a court/tribunal of one State may exercise its jurisdiction in respect of another State - Jurisdictional Immunities of the State (Germany v. Italy : Greece intervening), 2012 3/ immunities have to be distinguished from impunity (e.g. they do not prevent individual criminal responsibility) - Arrest Warrant of 11 April 2000 (DRC v. Belgium), 2002

Question 29

Relation between jurisdiction and immunities + example of a case that illustrates this ? (3)

Answer 29

1/ a State needs to have jurisdiction before considering whether there are immunities that bar the exercise of such jurisdiction 2/ there is thus a logical relation btwn State jurisdiction and immunities 3/ however, in "Arrest Warrant of 11 April 2000" (DRC v Belgium), 2002, ICJ sought to determine whether BEL violated immunities of the MFA of DRC before analysing whether it had jurisdiction to issue the arrest warrant

Question 30

Foundation and rationale of the law of State immunity ? (2)

Answer 30

1/ international legal system built around the equal sovereignty of States 2/ a sovereign State thus cannot be subjected to the jurisdiction of another sovereign, unless it has agreed

Question 31

Relation btwn the domestic law/courts and the law of State immunity ? (3)

Answer 31

1/ immunities are usually invoked before domestic courts 2/ when a domestic court does not respect the immunities of another sovereign State, it breaches IL 3/ it is only when a domestic court does not recognize or fails to respect the immunity of another State that international responsibility arises

Question 32

What justifies waivers of immunity ?

Answer 32

The fact that immunities are a right of the State, i.e. they belong to the State

Question 33

2 types of immunities ?

Answer 33

1/ immunity from jurisdiction : tribunal cannot exercise its jurisdiction over a person 2/ immunity from enforcement : State property is immune from measures of constraint adopted by another State

Question 34

Impact of waiver of immunities from enforcement/jurisdiction ?

Answer 34

None, i.e. it is not bc immunities from jurisdiction have been waived that immunities from enforcement have also been waived (and vice versa)

Question 35

What are 3 beneficiaries of State immunities from jurisdiction/enforcement ?

Answer 35

1/ State as such 2/ State officials 3/ State properties

Question 36

What distinction must be made in respect of the jurisdictional immunities of the State as such ?

Answer 36

Distinction btwn acta iure imperii and acta iure gestionis

Question 37

Distinction btwn acta iure imperii/gestionis ? (2)

Answer 37

1/ acta iure imperii : exercise of sovereign power 2/ acta iure gestionis : exercise of non-sovereign activities of a State, especially private and commercial activities => operation of State immunities only when it acts as a sovereign

Question 38

When does State property enjoy immunity from enforcement ?

Answer 38

When it is used for public purposes => thus no immunity if used for private/economic purposes

Question 39

What distinction must be made regarding jurisdictional immunities of State officials ?

Answer 39

distinction btwn immunities ratione personae and immunities ratione materiae

Question 40

Characteristics of immunities ratione personae ? (3)

Answer 40

1/ apply to highest ranking State officials (head of State, head of gvt, minister for foreign affairs) 2/ apply only during the period of office 3/ immunities cover all acts

Question 41

Characteristics of immunities ratione materiae ? (3)

Answer 41

1/ apply to all State officials 2/ only cover acts accomplished in official capacity 3/ last forever

Question 42

What are some debates surrounding immunities ? (3)

Answer 42

1/ does immunity ratione materiae cover international crimes and jus cogens violations in its scope ? 2/ are international crimes an exception to ratione personae immunities ? 3/ are State immunities inapplicable in cases of breaches of jus cogens norms ?

Question 43

What contradiction appears in the Convention against torture and was addressed in the ex parte Pinochet III Judgement ? (2)

Answer 43

1/ torture defined as an act carried out by a State official in official capacity (as such, State immunities apply) 2/ obligation to prosecute and punish all perpetrators of the crime of torture

Question 44

How was the contradiction in the Convention against torture solved in the ex parte Pinochet III Judgement ? (3)

Answer 44

1/ it was considered States implicitly agreed to waive their immunities when acceding to the Convention 2/ this interpretation was justified by the principle of l'effet utile in the law of treaties + by an interpretation of the Convention in accordance with its object and purpose 3/ criticism of this interpretation is that something so important as State immunities should be the object of an explicit provision

Question 45

What are the conditions for a restriction to the right of access to a tribunal under Article 6(1) of ECHR to be valid ? (3)

Answer 45

1/ pursuit of a legitimate objective 2/ necessary 3/ proportionate

Question 46

What did the ECtHR hold in its 2001 Al-Adsani judgement regarding the breach of Article 6(1) and State immunities ? (2)

Answer 46

1/ grant of sovereign immunity to a State in civil proceedings pursues the legitimate aim of complying with IL to promote comity and good relations between States 2/ measures taken by a State which reflect generally recognised rules of PIL on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court => UK not in breach of Article 6(1)

Question 47

What distinction did the ECtHR make in its Al-Adsani judgement to justify its conclusion ? (2)

Answer 47

1/ Pinochet III deals with immunities of State officials 2/ Pinochet III deals with a criminal case, while Al-Adsani deals with civil litigation

Question 48

What is the reasoning followed by the ICJ in its Arrest Warrant case to determine the scope of immunities enjoyed by an incumbent MFA ? (4)

Answer 48

( ! ) deductive reasoning 1/ MFA enjoys immunities 2/ attention should be paid to whether the non-recognition of immunities would hinder the performance of an MFA's functions 3/ thus, immunities of an incumbent MFA apply to all of its acts 4/ in particular, immunities also apply to international crimes, except before certain tribunals (such as ICC which has a provision that waives all State officials' immunities)

Question 49

Does Article 27 of the ICC Statute reflect CIL ?

Answer 49

1/ according to ICC, Article 27 embodies a rule of CIL and immunities of all State officials are waived when they commit international crimes 2/ according to ICJ, Article 27 is simply a treaty exception to State immunities and there exists no such rule in CIL

Question 50

What is the main problem the ICJ had to address in the Jurisdictional immunities of the State case ?

Answer 50

Do States immunities prevail over jus cogens norms ?

Question 51

What is the logical argument in support of the prevalence of jus cogens norms over State immunities ? (3)

Answer 51

1/ jus cogens norms are at the top of the hierarchy of norms 2/ immunities are not norms with a jus cogens character 3/ in the case of conflict of norms, norms that are not of jus cogens character do not operate

Question 52

What is the problem with the logical argument in support of a prevalence of jus cogens norms over norms covering State immunities ? (2)

Answer 52

1/ procedural character : immunities have to be decided at the preliminary stage, when the jus cogens character/breach of jus cogens norms is analysed at the merits stage 2/ real content of the jus cogens norm concerning torture : this norm only prohibits torture when the norms concerning State immunities only state that even when torture is committed, immunities should be respected => hence, there is no conflict of norms

Question 53

What is the frequent argument in support of the position jus cogens norms and State immunities do not conflict ? (2)

Answer 53

1/ rules governing State immunities are procedural in character 2/ jus cogens norms are substantive in character

Question 54

What are some critical arguments against the Jurisdictional immunities of the State case ? (2)

Answer 54

1/ judgment is unnatural and inconsistent 2/ we should seek to and can do better and make jus cogens norms prevail over all other rules of IL