Jurisdiction and Immunities

Question 1

What is jurisdiction?

Answer 1

Jurisdiction means different things in different context – in this context means ability under IL to regulate and give effect to regulation of persons and property (by regulate mean provide for in its own law)

Question 2

Jurisdiction to prescribe

Answer 2

State’s authority under IL to assert the applicability of its law to given persons (natural or legal) and property
How might do so? Might enact legislation which on its face purports to regulate these situations. Need not be primary legislation, can be secondary, could even be courts in CL jurisdictions. Could even be executive
Doesn’t matter who does, its about the assertion that your law applies

Question 3

Jurisdiction to adjudicate

Answer 3

State’s authority to have its courts hear certain cases.
When they hear those cases, may be applying own law, but equally (esp in tort and contract) may be applying law of foreign state.
For purposes of JTA just asking about their ability to adjudicate
Cf courts’ jurisdiction ratione loci, ratione personae and ratione materiae under municipal law

Question 4

Jurisdiction to enforce

Answer 4

Authority under IL to enforce investigative, coercive, or custodial powers in support of law
To actually apply its law through its police, through its courts or whatever
It’s the sharp end – putting law into effect

Question 5

Jurisdiction criminal or civil?

Answer 5

We’re looking at criminal
JTP re civil law in IL = very laissez faire. Parties can basically just choose.
Also w/ crim can just look at JTP and JTE, bc JTA only matters where applying other country’s law. If using own law, JTA is just consequence of JTP

Question 6

JTP and JTE not necessarily co-extensive

Answer 6

Do not necessarily go together
Many situations where state may criminalise conduct that takes place in another state. Many times when UK can say it is a crme to do X in country Y. But it is extremely rare that under IL the UK can have its police go and arrest someone or gather evidence or take testimony in country Y
Way that state may exercise JTP w/out JTE is either to wait or ask state Y to extradite

Question 7

Concept of JTP in criminal context

Answer 7

State’s authority by reference to IL to treat certain conduct as criminal
Big Q in all of this is in what circumstances a State may criminalise conduct outside its territory

Question 8

Discrete bases or “heads” of JTP

Answer 8

Despite old case (SS Lotus) we don’t need to focus on, orthodox approach (which can be reconciled anyway) is that there are a handful of discrete bases on which a state can rely to cirminalise certain conduct
Unless it can fit the conduct in one of these, cant have JTP

Question 9

Concurrent JTP

Answer 9

Often, more than one state will cirminalise same conduct
If person from A goes to B and kills someone, both A and B have JTP. Which one gets to try the person comes down to things like whether the person leaves, whether there is extradition etc. If person killed was from state C, then have even more bases

Question 10

JTP under CIL = permissive, not mandatory

Answer 10

CIL says that a state may criminalise certain conduct, not must.
Whether a state chooses to exercise an authority given to it in IL is its own business.
Looking at what states are permitted, not obliged to do

The treaties oblige states to criminalise (go beyond CIL) but we won’t look at that

Question 11

Territoriality

Answer 11

first and most fundamental basis on which a S can criminalise conduct
S has JTP over all acts in its territories
Territoriality alone is sufficient, don’t need to show nationality or anything else
Territory includes territorial sea and superjacent airspace
Territoriality required at time of commission

Question 12

‘Subjective’ and ‘objective’ territoriality

Answer 12

I stand in one S, victim in another – I shoot him. Which is the T?
S where crime is initiated on = subjective territoriality. But if another constituent element of the crime takes place in states’s T (the death) then they have objective territoriality
For many crimes that’s fine. But have to consider what the constituent elements of the case are – like what if its conspiracy
Important for things like drug trafficking
Internet is very difficult and right now there aren’t clear rule. Customary rules are emerging through a pretty contested process. Much of it has to do w where the internet is

Question 13

Nationality

Answer 13

State may cirminalise conduct of its national wherever they may be
a.k.a. ‘active personality’
More commonly used in civil law jurisdictions
Nationality required at time of commission
Corporations are nationals of their state of incorporation

Territoriality and Nationality are the only heads that can be applied to any sort of crime. The other have narrower jursidiciton

Question 14

The “protective” principle

Answer 14

Principle is that Ss may criminalise extraterritorial acts of aliens to protect fundamental national interests (usually security, but not necessarily)

Question 15

Scope of the protective principle

Answer 15

Has not traditionally been a general principle, but rather an explanation of certain discrete bases
Counterfeiting of your currency for example
How board it goes remains to be seen. We know that attacks against a HOS is covered, counterfeiting, attacking missile shield, and some more, but how far is not known. Will be figured out as time goes by

Question 16

Passive personality

Answer 16

Active personality = when offender is national – passive personality = when victim is national.
In old days this was very controversial
These days, w lots of SP and OJ and acknowledged in different cases in ICJ, it is permissible today at least as regards serious offences against the person.
Murder, GBH etc
States now regularly criminalise extraterritorial acts by aliens where victim is one of their nationals
How far it goes is unclear. Homicide is covered. Whether it extends to other crimes, particularly not against the person, only time will tell
Nationality required at time of commission

Question 17

Sui generis bases

Answer 17

Bases on their own
Ships on high seas
Aircraft in flight
Service jurisdiction

Question 18

Ships on high seas

Answer 18

The exclusive prescriptive jurisdiction is that of the flag state. So the state where the ship is registered.
Problem is companies registering ships in Liberia and then treating their crew like slaves.
UN Convention on the Law of the Sea 1982, art 92(1), as consonant with customary international law

Ships within territorial sea?
Once in territorial seas, the usual rule apply, and plus the flag state can also criminalise

Question 19

Aircraft in flight

Answer 19

Similar to ships on high seas, but jurisdiction is strictly concurrent.
The state where the aircraft is registered may cirmianlise, but that is not to exclusion of other state
If flying over high seas, no T, but nationality and stuff is still relevant
Tokyo Convention on Offences and Other Acts Committed on Board Aircraft 1963, arts 3(1), 1(2) and 1(3), as probably consonant with customary international law

Question 20

Service jurisdiction

Answer 20

There are may armies and navies and air forces in the world where foreigners can fight
The state in whose army they are serving may criminalise their conduct wherever they are.
Ghurkas fighting in Iraq are aliens in foreign territory but can still cirminalise their actions

Question 21

The “effects” doctrine

Answer 21

State may crimianlise extraterritorial acts of non nationals merely on basis that effects are felt in its territory (not that a constituent element happens in its territory)
Most obvious example is American anti-trust law. Which is not criminal per se, but may be criminal damages
Uncommon and controversial
Seemingly acceptable where intentional, direct and substantial harmful effect within territory
Permissible in narrow circumstances

Question 22

Residency?

Answer 22

Some s beginning to crimanlise extraterritorial conduct of non nationals merely bc they are permanent residents
Legality unclear
Some use it only in reference to stateless individuals
Others use for those w other bases
Residency required at time of commission

Question 23

Universality

Answer 23

Universal prescriptive jurisdiction = assertion of criminal jurisdiction where no other recognised basis of J exists
Sometimes said that any state may crimnalise.
Under CIL that is what it means, but there are also treaty forms of UJ
At point of commission no other link exists
We are going to see to what extent it exists

Question 24

“Universal jurisdiction in absentia”

Answer 24

In Arrest Warrant a few judges referred to UJ in absentia – this is the conflation of 2 different things
UJ – criminalising conduct regardless of any link
And enforcing in absentia – w/out person’s presence
Generally in CL, proceedings in absentia is not permitted (except in certain circumstances).
In civil law jurisdictions can have it, but will usually need to re-trial when they catch the person
Judges unfortunately treated UJ in absentia as an especially bad JTP basis
Really 2 different Qs. Can in absentia be okay? Answer is yes, IL allows this
So logically nothing worse about UJIA than usual UJ

Question 25

Universality

Piracy jure gentiium

Answer 25

This has always been one
Pircay, by definition, takes place on high seas
In old days, territoriality was only acceptable basis, so if it took place on the high seas, it was outside anyone’s jurisdiction
So could either say no one criminalise it or all can
Piracy was threat to all states, so they agreed that they could all cirmianlise it

Venerable special jurisdictional rule
UN Convention on the Law of the Sea 1982, art 105, as consonant with customary international law (although custom not limited to state of capturing vessel)

Question 26

Universality

Slavery and the slave trade

Answer 26

Maybe, maybe not

Certainly it’s a crime against humanity, so if CAHs give rise to UJ, then slavery does

Question 27

Universality

Crimes under CIL

Answer 27

There are a few crimes where, in exception to usual IL situation (of not binding individuals), where IL stops idividuals from doing certain things )Wcs, CAHs, genocide, slavery etc)
Widespread belied that these attracted UJ since WW2
AG for Israel v Eichmann (1962)
Eichmann was bureacratically in charge of killing jews. Extradited from Argentina to Israel. Tried to use passivity principle, but Israel didn’t exist back then, so used UJ, which everyone was happy with

Question 28

Arrest Warrant (number of separate and dissenting opinions)
re Crimes under CIL

Answer 28

All obiter dicta
Although they were not actually required to determine the point, bc C conceded, some of the judges went out of their way to say UJ existed only for piracy
Then other judges had to respond and say no ofc not
This led to something of a controversy

Question 29

States’ view on crimes under CIL

Answer 29

Pretty much every state, even though they might kick up a fuss when this power is exercised, recognises that CAHs give rise to UJ.
But this is not because of the seriousness of the crimes
Reason is bc it is CIL itself that prohibits these things, which has no place. Not created by single legislature – it is an inherently universal law
If we want to rationalise it on policy terms – reason we have J is so states can draw line between what is theirs and others’ concern. With CIL it is policy of all states
Has proven controversial in its exercise

Question 30

Controversy in practice of UJ for Crimes under CIL

Answer 30

2 states in particular had very generous legislation in this regard. Could bring crimes in absentia, and immunities did not apply.
One was Belgium. So everyone started bringing claims to Belgium about Bush and China and a handful of Africans (who got very upset about it)
Africans kept saying the abuse of “UJ”. Then when they sat down and talked about it, Africans said they accept UJ applies here. What was the controversy wasn’t UJ, but immunity
In formal legal terms everyone accepts it
UJIA is controversial too, someone might find themselves subject to extradition request to country they’ve never set foot in

Question 31

Self-imposed municipal restrictions on exercise

Answer 31

Countries like Belgium now say to bring a claim on basis of UJ, the person must at some point be on the territory.
Not until they set foot on territory that they can issue AW and prosecute.
IL doesn’t say that, but NL does to get around the problem
Also, to prosecute on basis of UJ need permission of special official – such as the AG. Can be seen as a filter to unmeritorial claims. But can also filter meritorial claims that the states doesn’t want to be embarrassed by
Someimtes states say they will use UJ only against person who subsequently become nationals or residents. So this fills in the time holes in nationality and territory, and also means they aren’t a forum of choice for people to come and try to prosecute totally unrelated persons

Question 32

Hierarchy of concurrent jurisdictions?

Answer 32

No
Merely a case of happenstance and co-operation, can’t demand extradition bc of your basis (unless treaty provides such ofc)
Everyone with a basis has an equal basis
UNSC has said Ss should work this out among themselves.
Occasional academic or obiter suggestion
Specific suggestion re universal jurisdiction
“unwarranted by anything in international law and unsupported by the existing practice of States” (Harvard Law School Research in International Law, ‘Jurisdiction with Respect to Crime’
No support in contemporary practice of states beyond single ambivalent example
No customary hierarchy

Question 33

Ne bis in idem among Concurrent Jurisdictions?

Answer 33

No customary rule of ne bis in idem among national criminal justice systems.
IL prohibits states from prosecuting same person for same thing, but fine for different states to prosecute same person for same thing
In time may develop rules in this regard
And some States self-impose rules saying they won’t prosecute someone already prosecuted elsewhere

Question 34

JTE in criminal context

Answer 34

Q of whether S can have police arrest/investigate, where their courts can sit, whether subpoenas and warrants etc can have effect

Question 35

Enforcement impermissible as of right in territory of another state

Answer 35

As a right, state may not have JTE in another state’s territory (of foreign flagged vessel on high seas).
However, there is a general exception were state consents (this is pretty rare, usually they say we’ll do it for you)
eg The SS ‘Lotus’, and Arrest Warrant

Question 36

Consent via treaty or otherwise

Answer 36

Police powers
eg Schengen Agreement on the gradual abolition of checks at common borders
Judicial powers
eg Agreement between Netherlands and UK re a Scottish Trial in The Netherlands 1998
eg Agreement between UK and NZ re Trials under Pitcairn Law in New Zealand and Related Matters 2002

Question 37

Immunities: concept

Answer 37

Immunity of state organs, officials, etc from foreign judicial proceedings, civil or criminal
Immunity of state property from foreign measures of judicial constraint, pre- and post-judgment
Inviolability of state officials from foreign measures of physical constraint
Jursidictional immunities only regulate immunity in foreign jurisdictions. How domestic courts treat their own state officials is their own business (as far as the law of jurisdiction is concerned (HR law may differ)).

Question 38

Immunity owed to State itself

Answer 38

One state owes another state an obligation to accord immunity – may be to national airlines, or state official or whatever
What that means in respect of individual state officials is that they have no individual right of immunity, it is the state’s right of immunity
Because of this, immunity is open to waiver by State itself.

Question 39

Immunity: procedural, or substantive?

Answer 39

Arrest Warrny, and Jurisdictional Immunities of the state (Ge v It) suggests procedural.
Immunity bars the exercise of jurisdiction by a court, or the imposition of measure of constraint by a court or by the police. Does not mean that the foreign state’s law may not apply.
Diplomats can’t be arrested for speeding and parking, but that does not mean the law does not apply. They do have to stop at red lights. IL just doesn’t allow you to prosecute if they don’t. This is important bc it means if immunity is waived, they can be prosecuted. Otherwise, waiver wouldn’t make a difference.

Question 40

Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion

Answer 40

‘a generally recognized principle’, which states are ‘under an obligation to respect’, that ‘questions of immunity are … preliminary issues which must be expeditiously decided in limine litis’

Question 41

Jurisdictional Immunities of the State (Germany v Italy)

Answer 41

Availability of immunity from proceedings to be determined ‘at the outset of the proceedings, before consideration of the merits’
‘Immunity cannot … be made dependent upon the outcome of a balancing exercise of the specific circumstances of each case to be conducted by the national court before which immunity is claimed’

Because if the state has no competence, end of story.
If it is case that immunity is determined before merits, then that means severity of the crime is irrelevant. Moreover, no balancing process bc it doesn’t matter what the merits are

Question 42

Immunities ratione materiae

Answer 42

Subject-matter immunities, eg state immunity.
Prohibit a state from exercising J against a particular person or company w certain relationship w S in relation to certain subject tmatter, not everything. Chief subject matter is state immunity. State immunity prohibits a state through its court exercising J over certain acts of a state (those which are sovereign). In criminal context that means all acts by officials done in their official position.

Question 43

Immunities ratione personae

Answer 43

Personal immunities, eg diplomatic immunity, immunity of HOS/HOG/MOFA
Arise by virtue of the office that the person occupies at that time. These protect the holders of certain state offices and posts from proceedings in foreign court in relation to everything, provided they are in office or post at that time (HOS HOG MOFA Diplomats, Ambassadors, perhaps others)

Question 44

Immunity of foreign State property

Answer 44

Fits less neatly into scheme
May be restrictive or absolute, depending on nature of property
All state properties are immune from measures of constraint (judicial orders) provided it is not in use or intended for use for commercial purposes.
However some property is completely immune (diplomatic premises, house of ambassadors)

Question 45

State Immunity

Answer 45

Rationale is sovereign equality of States.
No sovereign could subject another sovereign to the power of his court, this would violate sovereignty and the equality of states.
In time came to apply to apparatus as a whole.
Was initially absolute, but then States started running all sorts of private corporations, and immunity for those became less rational

Question 46

Modern restrictive State Immunity

Answer 46

States running private corporations gave rise to restrictive state immunity - States enjoy immunity only in areas that are inherently sovereign
Acta jure imperii - acts by right of sovereignty
Acta jure gestionis - acts by right of the market
Still impermissible for states to bring proceedings against other states acta jure imperii, but not acta jure gestionis

Question 47

Application of restrictive SI to serving and former state officials

Answer 47

Can sue a foreign state official acting in his official capacity if that is a commercial activity.
Why do former state officials benefit from the immunity? Bc they get the benefit form the nature of the subject matter (its an inherently sovereign act) so once you are no longer an official, this does not change the character of the act you performed.

Question 48

United Nations Convention on Jurisdictional Immunities of States and their Property 2004

Answer 48

Codification of SI rules
Broadly in line w CIL
Why? States felt they needed to precisely agree what was and wasn’t immune, not clear what acts are inherently sovereign.
Convention says Ss are always immune, except in follwoing specific and exhaustive circumstances - general distinciton now rendered concrete
Applies to civil proceedings, and State (rather than personal) immunities

Question 49

Distinction between immunity of state from proceedings (or ‘jurisdiction’) (UN Convention, Parts II and III) and immunity of state property from pre- and post-judgment measures of constraint (UN Convention, Part IV)

Answer 49

Distinction between proceedings (J) and pre-and-post-judgment measures of constraint.
Pre is stuff like injunctions, post is executing the judgment against the property
A distinction is drawn and the 2 don’t go hand in hand
It is possible and common for IL to allow a case to be brought against a foreign S (IL might say sure you can sue them bc the case relates to xyz things where there are exceptions) but if you win IL may at the same time say you cannot execute this judgment bc the prop might be immune from post-judgment measures of constraint.
So might get a nice judgement, but it might be worthless.

Question 50

Consent in the UN Convention

Answer 50

Consent to proceedings (arts 7–9)
Consent to measures of constraint (arts 18 and 19)
Consent to proceedings ≠ consent to measures of constraint (art 20)
Consent to proceedings is the waiver of immunity. But just bc the S is happy to waive re proceedings, doesn’t mean it’s happy to give up it’s property
Must separately consent to executing against judgment

Question 51

Proceedings

Answer 51

Proceedings
State immune (UN Convention, art 5), subject to exceptions (see UN Convention, arts 7–17)

Measures of constraint
State property immune (UN Convention, chapeaux to arts 18 and 19), subject to exceptions (subparas of arts 18 and 19, with art 19(c) fleshed out in art 21)

The exceptions are less generous in pre-judgment than in post-judgment, but in neither are they generous
In UK what governs it is State Immunity Act 1978 which is more or less in line w the Convention

Question 52

Civil action re violations of International HR law, etc: Controversy

Answer 52

Since 80s up to recently there has been Q of whether an exception to SI exists in civil context for being tortured or enslaved, or extrajudicially executed.
On INT level would deal w this though INT HR or humanitarian law
Makes sense for IL to protect States from applicaiton of domestic law, bc you can’t assert your values on other - but this stuff is universally agreed?
Doesn’t matter, becasue we are working out competence. Can’t just jump to merits and use it to say they have competence
Argument is attractive, but wholly specious

Question 53

Jurisdictional Immunities of the State

re exception to SI for breaches of INT HR law in civil context

Answer 53

There’s no exception for these kinds of things, bc it presupposes the merits
In the exceptions, don’t ask whether there is a breach of contract, ask whether it is concerning a contract
For torture, if its in this J, that’s a personal injury claim so fine
There is still recourse in such cases, rely on state to represent you at INT level

ICJ was conclusive, found no exception by 13-2

Question 54

Criminal proceedings re violations of International HR law, etc

Answer 54

CIL only beginning to emerge (see ILC’s ongoing work on “Immunity of State officials from foreign criminal jurisdiction”
So don’t have great amount to go on
But basic rule of immunity ratione materiae is that it is “in repect of acts performed in official capacity”. So can be criminal if in personal capacity, bc not an act of state.
But can’t separate official acts into state stuff and stuff anyone can do in criminal context - so if it’s an official act that’s conclusive
Former state officials retain immunity for the stuff they did in official capacity
State can and sometimes does waive immunity though

Question 55

“acts performed in an official capacity”

Answer 55

Disticniton between official and private capacities (not same as imperii/gestionis)
Ask whether they did the ACT in that capacity, not the CRIME (would presuppose the merits)
Descriptive, not normative. Ask whether they did the thing in official capacity, not whether its sort of thing they ought to be doing in official capacity (really ought to never commit crimes in any capacity…)
Ultra vires acts are not deprived of official character, bc reason they can do the thing is bc of their position - they have ostensible authority
Personal motives are irrelevant. Acting in official capcity objectively, irrespective of whether subjective motive was personal
Still acting in State capcity when officals are seconded to private sector
If the State of the accused says it was in official capacity, this has great evidentiary value and they are generally believed, bc it is self-incriminating
Will come down to emerging SP and OJ

Question 56

Exceptions to Immunity of State officials from criminal proccedings forr violations of INT HR law?

Answer 56

Clandestine conduct by state officials in foreign territory? Might be that Ss are only waiving immunity out of embarassment (eg Rainbow Warrior), but is the sort of thing you can imagine Ss agreeing an exception for
International Crimes? See different card

Question 57

Exception to immunity for international crimes?

Answer 57

Unsettled but unlikely
ICJ dicta = hostile
Arrest Warrant said can try only for acts prior or subsequent, or during but in private capacity
Jurisdictional Immunities: Although in AW, they did not make express mention of JC, fact that the MOFAs crimes were JC did not deprive Congo CIL entitlement to demand immunity on his behalf
And: Proposition that availability of immunity will be dependent on gravity of unlawful conduct presents logical problem - immunity is not from adverse judgment but trial process, it is necessarily preliminary in nature
This case was bout civil liability, but same logic applies to criminal
ICJ has not had to face the issue directly, but has gone out of its way to face it indirectly
USA, China, Israel, and all of the African Union are thoroughly opposed

Question 58

Personal Immunities

Answer 58

Certain State officials benefit under IL for term of office from immunity ratione personae from foreign jurisdiction. Cease to benefit from it on leaving post or office.
While in that post, immune re everything they do in that post, private or official, and everything they did before.
All that matters is that at time the S wants to prosecute, they hold the post
Also benefit from inviolobility from foreign measures of physical constraint
S can waive immunity
Some species codified in treaty, others are purely customary

Question 59

Rationale behing personal immunity?

Answer 59

Arrest Warrant:
‘to ensure the effective performance of their functions on behalf of their respective States’
Pragmatic

Question 60

Personal Immunity: after leaving office?

Answer 60

Continuing immunity ratione materiae, ie state immunity, on leaving office or post in respect of acts performed in official capacity during office or post
Just bc they don’t have personal immunity anymore doesn’t mean they don’t have SI anymore. They perform state acts in that post, for which they continue to enjoy I, just not their personal acts or things done not during time in post. Retain the lesser immunity.

Question 61

The “Narrow Circle” of Beneficiaries

Who benefits from personal immunity?

Answer 61

Diplomatic agents, (Vienna Convention on Diplomatic Relations 1961). Foreign diplomats are accredited to the host country. There is an official accreditiation.
Other treaty-based species, eg Representatives of state in special mission and members of mission’s diplomatic staff
Heads of state (Uncodified)
See, in criminal context, Arrest Warrant, and Mutual Assistance in Criminal Matters (Djibouti v France)
Rationale formerly sovereign equality, now pragmatic
Unlike Diplomats, HOS enjoys I vis a vis all states
Heads of government and ministers for foreign affairs
Arrest Warrant
“Troika” or trio
In AW said it was CIL. Couldn’t find SP or OJ, but said it had to be. BC they need to travel, and they’re like diplomats
OTOH it has been empahasised that this is a limited ciricle
Others may get it like minister of commerce or defence
Some want to limit it to these 3, others want it extended further
Other state officials?
Teleological and analogical reasoning of Arrest Warrant but ‘narrow circle of high-ranking state officials’ (Second report on immunity of State officials from foreign criminal jurisdiction, 59, para 94(i))

Question 62

Personal Immunity and Prosecutions for international crimes

Answer 62

Arrest Warrant, 24, para 58
See also Arrest Warrant, 25, para 59:
‘[A]lthough various international conventions on the prevention and punishment of certain serious crimes impose on States obligations of prosecution or extradition [and] require[e] them to extend their criminal jurisdiction, [this] in no way affects immunities under customary international law, including those of Ministers for Foreign Affairs, [which] remain opposable before the courts of a foreign State, even where those courts exercise such a jurisdiction under these conventions’
Necessary implication from AW for all immunities ratione personae and all international crimes affirmed by consistent and widespread state practice