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State immunity

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Douglas Guilfoyle

on 28 August 2015

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Transcript of State immunity

State Immunity in Public International Law
Dr Douglas Guilfoyle
National courts
International courts
& tribunals

Civil
cases

Criminal
cases

A State is absolutely immune from the jurisdiction of foreign courts unless an exception applies (par in parem non habet imperium).
The basic rule
The object of State immunity is to prevent
a case being heard against a sovereign without
its
consent.
As international cases in 'civil' matters require
a State to consent to jurisidiction no rule of
immunity is needed.
The contents of this box will be covered in your dispute resolution class.
It is often suggested that there is no immunity for persons accused of international crimes appearing before international tribunals.
The situation may be slightly more complicated. It may depend on the origins of the tribunal.
Prosecutor v. Blaškić
Charles Taylor Case
Al Bashir Case (ICC)
Al-Adsani
Jones v Saudi Arabia
Germany v Italy
... and now
There can be immunity in civil cases arising out of an international crime:
The rise of restrictive immunity for commercial transactions.
Customary international law: acts jure imperii and jure gestionis
UK State Immunity Act 1978: wide exception for contracts
Immunity ratione personae
Immunity ratione materiae
Certain serving high office holders are absolutely immune from the jurisdiction of foreign courts and may not be subjected to any aspect of criminal procedure.
All individuals will enjoy State immunity in respect of official acts.
A continuing immunity covering all past conduct.
Can be waived, including by necessary implication from a treaty.
Why should immunity be available for jus cogens crimes?
However, immunity does not extinguish liability. Immunity only precludes a given forum hearing a given case at the time.
Arrest Warrant
Djibouti v France
Pinochet (No 3)
Note: cases are not perfectly consistent - Khurts Bat suggests an exception for extra-territorial crimes.
Jones v UK
Full transcript