Public International Law Week 3

Question 1

Three forms of jurisdiction

Answer 1

Prescriptive (legislative); Adjudicative (judicial); Enforcement (executive)

Question 2

Prescriptive (legislative) form of jurisdiction

Answer 2

The legislature creates (prescribes) laws

Question 3

Adjudicative (judicial)

Answer 3

Adjudicative bodies hear and determine individual cases. This is a very much territorial based jurisdiction. The exception is the court martial (military tribunal where a court can sit in foreign territories).

Question 4

Enforcement (executive)

Answer 4

The executive enforces the laws. The authority to enforce law and order is limited to State territory or territory under the jurisdiction of the state. Enforcement outside the territorial jurisdiction needs a legal basis/legal justification. E.g., enforcement of foreign judgement by national authorities; cooperation when it comes to criminal issues such as extradition or judicial cooperation in investigation

Question 5

Territorial principle of criminal jurisdiction

Answer 5

Territorial sovereignty gives state a general competence do do anything in its territory unless PIL limits it. Thus, any person acting on the territory of the state can be restricted by the state.

Question 6

Subjective territorial principle of criminal jurisdiction

Answer 6

The state of the territory on which the crime took place has jurisdiction. E.g., a person fires a gun from the Dutch side of the border, killing a person on the German side of the border - the Netherlands has criminal jurisdiction as the crime happened on their territory.

Question 7

Objective territorial principle of criminal jurisdiction

Answer 7

The state of the territory on which the crime has concluded has jurisdiction. E.g., a person fires a gun from the Dutch side of the border, killing a person on the German side of the border - Germany has jurisdiction as the crime is felt/concluded in Germany.

Question 8

Active nationality principle of criminal jurisdiction

Answer 8

The person with the nationality of a state committing a crime abroad, the state to which the nationality belongs to has jurisdiction. Generally only for serious crimes. Form of jurisdiction in Art 5(1)(b) Convention Against Torture, Art 6(1)(c) International Convention for the Suppression of Terrorist Bombings. E.g., Canadian goes abroad and kills someone, then the Canadian government has jurisdiction.

Question 9

Flag principle of criminal jurisdiction

Answer 9

Jurisdiction over acts on board of a ship or plane is established on the basis of the nationality (flagship) of the ship/airplane. Form of jurisdiction in Art 5(1)(a) Convention Against Torture, Art 6(1)(a) and (b) in International Convention for the Suppression of Terrorist Bombings.

Question 10

Passive personality/nationality principle of criminal jurisdiction

Answer 10

Person acting against a national of a State, the victim is a national of State claiming jurisdiction over offender. Hence, the state for which victim of the crime holds a nationality, has jurisdiction over the crime. E.g., when MH17 was shot down, it occurred above Ukrainian territory, allegedly Ukrainians and Russians were involved, the state of registration of the airplane was Malaysia also has jurisdiction, and there were many Dutch victims and also Australian victims. The states involved agreed the Netherlands would take the lead, as they had the most victims (passive personality criminal jurisdiction). Form of jurisdiction in Article 5(1)(c) Convention against Torture, Article 6(2)(a) International Convention for the Suppression of Terrorist Bombings

Question 11

Protective principle of criminal jurisdiction

Answer 11

The state to which the crimes that are committed outside the country’s territory and threaten the essential and vital interests thereof of that state has criminal jurisdiction. E.g., national security - if a person in State B is threatening the national security of State A, then State B can claim jurisdiction using the protective principle. Can be used for attacks against the army, attacks against political institutions, attacks against embassies abroad, coup d’etats or security of government officials. This principle is especially important for conspiracy/ intent to commit certain acts. Also applicable to crimes against economic/financial security - like counterfeiting dollars

Question 12

Universality principle of criminal jurisdiction

Answer 12

Provides for a state’s jurisdiction over crimes against international law even when the crimes did not occur on that state’s territory, and neither the victim nor perpetrator is a national of that state. This is usually for international crimes such as genocide. E.g., if a genocide takes place in State A done by people from State A, affecting only State A, State B, C, D, and E can say the crimes are of concern to the International community as a whole and we need jurisdiction here.

Question 13

Treaty crimes

Answer 13

Conduct stipulated to be criminal in treaties. There is no criminal responsibility of states here, but rather focuses on individual criminal responsibility. Contains not just principles allowing the establishment of jurisdiction: various obligations are imposed such as criminalization of conduct, criminal sanctions, establishment of jurisdiction on various grounds, the obligation to prosecute or extradite, etc. Can also include quasi-universal jurisdiction if the offender is present on territory and state party does not extradite them.

Question 14

Immunity from jurisdiction

Answer 14

Immunity of the state and state officials from the legal process and jurisdiction of national courts. While a national court would ordinarily have jurisdiction under national law, it cannot exercise that jurisdiction because the person concerned has an immunity. Contained in Art 5-6 UN Convention on Jurisdictional Immunities of States and their Property.

Question 15

Sources of state immunity

Answer 15

UN Convention on Jurisdictional Immunities of States and their Property; CIL

Question 16

Immunity from execution (of court decisions)

Answer 16

Even if there has been an exception to jurisdictional immunity, nevertheless a national court decision on a State cannot be executed (Art 19 UN Convention)

Question 17

Absolute state immunity

Answer 17

All state action has absolute immunity from all criminal jurisdiction and execution.

Question 18

Restrictive immunity

Answer 18

Only sovereign/governmental acts of the state have immunity while commercial state acts do not have immunity. Basically, if the state is acting as a commercial actor, then there is no immunity.

Question 19

How to determine if an act of the state is governmental/sovereign or commercial?

Answer 19

Look at Art 2(2) UN Convention on JISatP, which employs a two-step approach:
1) nature of the contract or transaction - if the nature of the transaction/contract is governmental, then there is immunity. If it is commercial, then go to step two
2) Purpose of the contract or transaction - if parties agreed upon this or the law where the case is decided allows for this, then it is governmental. E.g., if you buy tanks for your armed forces, it is a sovereign/governmental act and immunity is afforded but if you buy flowers for a party in the capital, then this is more a commercial act (no immunities afforded).

Question 20

State waiver of immunity

Answer 20

Established in Art 7-8 and 19 of the UN Convention. Immunities belong to the state and thus only the state can waive their immunity.

Question 21

Territorial tort exception to State Immunity

Answer 21

Art 12 UN Convention on JISatP. If a state acts within the territory of a foreign state, and commits tort in the territory of that foreign state, then the state will not be entitled to immunity. Could link to the armed forces of one state committing violations in another state in peace-time (not linked to war because war provides the exception to the exception). Thus, this exception has broad reach, but the idea behind it has to do with, for e.g., a state official causing a traffic accident in another state.

Question 22

Sources for diplomatic immunities

Answer 22

VCDR 1961, 1963; CIL (which just establishes that if you find a diplomat in act of committing a crime, you are allowed to constrain them).

Question 23

The diplomatic status of embassies

Answer 23

Embassies are not foreign territories as embassies are the territory of the receiving (home) state and subject to the jurisdiction of the receiving (home) state. However, the premises are not to be used in a manner incompatible with the functions of the mission and enforcement jurisdiction is limited in embassies as receiving state can’t just intervene in embassy whenever (Art 21, 22, and 41(3) VCDR).

Question 24

Territorial principle of diplomatic status of embassies

Answer 24

The receiving state has territorial jurisdiction with whatever happens in that embassy.

Question 25

Protective principle of diplomatic status of embassies

Answer 25

The sending state will also establish (have) jurisdiction for crimes taking place in the foreign embassy.

Question 26

Diplomatic status of ambassadors and diplomats

Answer 26

Somebody is a diplomat if that person is accredited as one with the MFO. The receiving state has to give agreement, and they can’t just say no, but must look at context to decline someone being a diplomat/ambassador from the other state. E.g., Julian Assange case - Ecuador tried to make Assange a diplomat. They gave him citizenship then they sent a message to the UK saying we will appoint Assange saying he’s a diplomat. Soon as he had that status he would have immunity and could leave country. But, UK said we will not accept that. The issue was can the UK say we don’t accept someone as a diplomat? While nothing in Vienna Convention about this, could say Ecuador was not acting in good faith, so not really allowed to do this. So, in any case, you are a diplomat if you have notified the MFO and the other country has not objected to this

Question 27

Inviolability of diplomatic premises

Answer 27

The entry into premises of an embassy by officials of the receiving State is only with permission of the head of mission (Art 22 VCDR). Applies to everything in and of the embassy/diplomatic premises such as diplomats, couriers, premies, archives, private residence of the diplomat, etc. This applies in cases of emergencies, however, exceptions (such as fires or other disasters that require protective action) spelled out in Art 31 VCDR.

Question 28

Due diligence obligation

Answer 28

The receiving state has the duty of special care to protect embassies, residences, and diplomats (Art 22 VCDR)

Question 29

Immunity of diplomats

Answer 29

Diplomats and ambassadors are officially granted from criminal jurisdiction in both official and private acts (full immunity). E.g., if a diplomat kills someone, they cannot be prosecuted (private act) and the diplomat cannot be prosecuted for espionage (official act). Can also call it personal immunity = full immunity; functional immunity = immunity only in official acts.

Question 30

Immunity when no longer a diplomat

Answer 30

The diplomat only retains immunity for official acts. So, the private act immunity is gone and can be prosecuted retroactively for criminal acts, but you cannot be prosecuted for official acts retroactively.

Question 31

Can diplomats themselves waiver their immunities?

Answer 31

No - only the state can waiver immunities of the diplomat as the immunities of a diplomat are the immunities of a state

Question 32

How to respond to violations of national law by diplomats?

Answer 32

Again, diplomats have full immunity for both private acts and official acts, thus cannot be brought before criminal courts for violation of national law (Art 41(1), 29, and 31(1) VCDR).

Question 33

How to respond to violations of international law by diplomats?

Answer 33

Diplomats can be brought before International criminal court for violations of international law. E.g., if interfering in the internal affairs of the state. Art 41(1) VCDR

Question 34

Immunity of diplomat’s family and those living in the diplomats household

Answer 34

They have the same immunities as the diplomat. I.e., if the diplomat has personal immunities then they also have personal (full) immunity for private acts and official acts.

Question 35

Immunities of administrative and technical staff (and their households) if not nationals/permanent residents of receiving state

Answer 35

Same as diplomats only for official acts (material immunity)

Question 36

ILC Draft Article 7 vs CIL and ICJ rulings

Answer 36

While Art 7 of the ILC Draft on limitations and exceptions to immunity from foreign criminal jurisdiction says that material immunity from the exercise of foreign criminal jurisdiction shall not apply in respect of the following crimes under international law: (a) crime of genocide; (b) crimes against humanity; (c) war crimes; (d) crime of apartheid; (e) torture; (f) enforced disappearance… however, the ICJ has stated clearly that heads of state are immune for all acts performed during their time in power, including torture, genocide, and crimes against humanity.

Question 37

Does personal immunity have any exceptions?

Answer 37

No - not even for the commission of the most serious crimes, such as genocide, crimes against humanity and war crimes.

Question 38

PCIJ Lotus case

Answer 38

Background: One of the first cases concerning jurisdiction. A French ship collided with a Turkish boat, and Turkey arrested the French lieutenant of the ship due to negligence
Question: Can Turkey establish jurisdiction to prosecute?
Proceeding: Rules of law emanate from the free will of states, and so restrictions cannot be presumed. France said Turkey must show they have an entitlement under PIL to establish jurisdiction and Turkey claimed France must prove there is a rule of PIL limiting Turkey in what it did - debate over who has the burden of proof.
Answer: Court sides with Turkey. The special agreement was whether Turkey acted contrarily to principles PIL - which shifts the burden of proof to France – and France didn’t provide sufficient evidence what Turkey did was prohibited
“International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed. “

Question 39

ICJ Germany v Italy: Jurisdictional Immunities of States

Answer 39

Background: Italian Courts had been rendering decisions against Germany for having committed violations of human rights and IHL during the second world war in Italy. Italy made the argument that if we look at territorial tort exception, then courts may ignore immunity of the state due to this exception.
Raised question: is there a rule of CIL embodying the exception for territorial torts? Thus, to answer if there is CIL we must also answer - is there sufficient state practice here? Is there opinion juris here?
In the case: the Court avoided ruling on this issue
Did not say that Art 12 reflects CIL because the Court came to conclusion that acts of the armed forces or acts of other state organs during armed conflict in other territory were excluded under this tort exception
So basically, Germany was fine
Answer: Territorial tort exception does not apply to acts of armed forces abroad in war
Italy then asked: could we say there are human rights or jus cogens exceptions to the exception that armed forces conduct during war is an exception to the territorial tort exception? Italy tried to argue there is an exception in international law due to violations concerned
Answer: Basically, you have to look at state practice and see if there are examples where immunities were denied because of gravity of violations concerned and Italy couldn’t do this. The Court said, regarding jus cogens exceptions, there is a difference between the rules concerned as rules of immunity are procedural rules, whereas rules of jus cogens (rules where no derogation permitted) are substantial rules (rules that regulate conduct)
Basically, the court says: because of the different character of these rules, there is no conflict between the rules concerned. Thus, crucially, you can invoke jus cogens, but you need to reflect a conflict between the rules concerned. You Need to show conflict between rule of CIL and rule of jus cogens
The court in this case applied CIL as the UN Convention was not in force at the time as Italy signed and ratified but Germany did not
Also showed procedure for deciding case: once treaty not applicable, always fall back on if rules are CIL, if CIL doesn’t help, then go to General principles of law, if that’s not enough, then judicial decisions/writings of scholars.

Question 40

ICJ Diplomatic Staff Case

Answer 40

Background Iran hostage crisis: militant students demonstrated before US embassy in Tehran, then invaded the terrain, and occupied the embassy and took more than 50 Americans hostage (most diplomats and couple of citizens) and kept them hostage from 79-81. When students overran the embassy, the American ambassador was on phone to MFO saying we are being attacked and help us. The court refers in the case to the Iranian authorities quietly vanishing from the scene and allowed students to take over the embassy. Obviously, Iran failed the due diligence obligation which establishes that embassies are inviolable and all within it are inviolable, the eceiving state has obligation to protect embassy against private persons who may try to harm it, and that this also relates to diplomats, couriers, premises, archives, documents, official correspondence, diplomatic bag, private residence, etc.
Court says: If a receiving state complains about violations of diplomats, they should declare the diplomat concerned persona non grata (Art 9 VCDR): send message to embassy that we declare this person PNG, and after that, diplomat should be given time to leave the country. Once you are declared persona non grata and time to leave country has gone, then you can be prosecuted in the country
Iran said in this case: court cannot deal in this case without taking into account US pulling their usual shit of violating other countries sovereignty. Basically said, we can take hostage cuz US been bitches.
Court said no: diplomatic law is its own regime. You are not allowed to invoke countermeasures to ignore inviolabilities or immunities of diplomats. Whatever you do, can’t ignore their immunities and inviolabilities
Also cite that countermeasures (reprisals) that deny inviolability and immunities are impermissible (article 50 ARSIWA).
Thus, when situation regarding diplomats is more serious, you just break off diplomatic relations all together. Also, when the situation concerning the diplomats is more serious, the protective measures must also be more serious. If issue with diplomats, then can just kick out diplomats and embassy personnel (Art 45 VCDR) So basically, persona non grata or breaking off diplomatic relations.

Question 41

Arrest Warrant Case

Answer 41

Certain holders of high ranking office in a state, such as the head of state, head of the government and minister for foreign affairs, enjoy immunities from jurisdiction in other states both civil and criminal (personal immunity/full immunity). Court has thus concluded that the issue and circulation of the arrest warrant by the Belgian authorities failed to respect the immunity of the incumbent MFA of Congo and more particularly infringed the immunity from criminal jurisdiction and the inviolability then enjoyed by Mr. Yerodia under international law. Thus, the warrant is unlawful.

Question 42

Functional immunities

Answer 42

Immunity only regarding official acts. Cannot be tried for official acts retroactively once leaving office.

Question 43

Personal immunities

Answer 43

Also considered as ‘full immunity.’ The diplomat of the sending state cannot be tried in the receiving state for personal acts they have done in a criminal, administrative or civil court.