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Jurisdiction and immunities

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Philipp Kastner

on 2 May 2016

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Transcript of Jurisdiction and immunities

JURISDICTION and IMMUNITIES
UN Charter: “Nothing contained in the present Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require the members to submit such matters to settlement under the present Charter…” (art 2(7))
Definition / meaning of jurisdiction
- Prescriptive jurisdiction
- Enforcement jurisdiction
(1) Territorial principle
Lotus Case
(1927)
“the first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State. In this sense
jurisdiction is certainly territorial
; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.”

It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law
. ... Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect
a wide measure of discretion
...”
No connection necessary?
NB: High Seas Convention and Convention on the Law of the Sea
- Subjective territorial jurisdiction

- Objective territorial jurisdiction

- Effects doctrine
Other challenges to territoriality principle: cybercrime
(see Convention on Cybercrime of the Council of Europe)
(2) Nationality principle
- jus soli & jus sanguinis
- naturalization
Convention on Certain Questions Relating to the Conflict of Nationality Law (1930)
Art 1: It is
for each State
to determine under its own law who are its nationals. This law
shall be recognised by other States
in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to reality.

Art 2: Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of that State.

Art 3: Subject to the provisions of the present Convention, a person having
two or more nationalities
may be regarded as its national by each of the States whose nationality he possesses

Universal Declaration of Human Rights:
“Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” (art 15)
“whether the factual connection between Nottebohm and Liechtenstein in the period preceding, contemporaneous with and following his naturalization appears to be
sufficiently close
…”

naturalization
… was granted without regard to the concept of nationality adopted in international relations.”
--> Guatemala was “under
no obligation to recognize
a nationality granted in such circumstances.”
Nottebohm
(1955)
Australian example:
Crimes (Child Sex Tourism) Amendment Act 1994
- Corporations?
- Ships and aircraft?

(3) Passive personality principle
(4) Protective principle
(5) Universal jurisdiction
Cutting
case (1886)
increasing use - terrorism
protection of vital interests of a state

Eichmann
case (1961)
- classic example: piracy
- crimes that "shock the consciousness of humanity"
Ex. Belgium /
Arrest Warrant
case (2002)
- Treaty-based crimes / "quasi-universal" jurisdiction
Ex. Torture Convention
(1984) (art 5)
= "obligatory territorial jurisdiction over persons"
Arrest Warran
t Case (2002), Joint Separate Opinion of Judges Higgins, Koojimans and Buergenthal
1. Each State Party
shall take such measures
as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:
(a) When the offences are committed in any territory under its jurisdiction or on board
a ship or aircraft registered in that State;
(b) When the alleged offender is a national of that State;
(c) When the victim is a national of that State if that State considers it appropriate.
2. Each State Party shall likewise take such measures as may be necessary to
establish its jurisdiction over such offences in cases
where the alleged offender is present in any territory under its jurisdiction and it does not extradite
him...

- US Alien Tort Claims Act
obligation
aut dedere aut judicare
from Filartiga
(1980) to
Kiobel
(2013)
- The Schooner Exchange v. M’Faddon
(1812)
“This perfect equality and absolute independence of sovereigns…”

Foreign state immunity
- Lord Brown-Wilkinson in
Ex parte Pinochet (No. 3)
(1999)
“… one sovereign state … does not adjudicate on the conduct of a foreign state. The foreign state is entitled to procedural immunity from the processes of the forum state…”

Shift from
absolute
immunity approach to
relative / restrictive
immunity approach:
Distinction into
-
acta jure imperii
(governmental acts)
-
acta jure gestionis
(commercial acts)

Examples:
- UK
State Immunity Act
(1978),
- Australian
Foreign States Immunities Act
(1985)
-
UN Convention on Jurisdictional Immunities of States and their Properties
(2004)
Recent ICJ decision regarding state immunity:
Jurisdictional Immunities of the State (Germany v Italy; Greece Intervening)
2012:
denying state immunity violates international law
no conflict between this procedural bar and the recognition of
jus cogens
norms
Immunity of government figures
- Immunity
ratione personae

- Immunity
ratione materiae

Confirmed by ICJ in
Arrest Warrant
case (2002):

“in international law it is firmly established that … certain holders of high-ranking office in a state, such as the
head of state, head of government and minister of foreign affairs
, enjoy immunities from jurisdiction in other states, both civil and criminal.”
wider range of actors, but fewer acts covered
Ex parte Pinochet (No. 3)
(1999)
?
?
Diplomatic Law
Vienna Convention on Diplomatic Relations
(1961)
- no right to diplomatic relations (art 2)
- premises of the mission or inviolable (art 22)
- free communication for all official purposes (art 27)
- diplomats enjoy immunity from the jurisdiction of the receiving state (art 31)
Vienna Convention on Consular Relations
(1963)
Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character
(1975)
Immunities of international organizations:
e.g.
Convention on the Privileges and Immunities of the United Nations
(1946)
Recap: Principles of jurisdiction

A bomb smuggled on a Qatar Airways flight from Doha to Perth, with passengers and crew members of 16 different nationalities on board, explodes in the airspace of Oman.

Question: Which state(s) can claim jurisdiction according to which principle(s)?

Other recent example (UK):
Benkharbouche v Sudan
and
Janah v Libya
( February 2015)
Article 5
State immunity

A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention.

Article 10
Commercial transactions

1. If a State engages in a commercial transaction with a foreign natural or juridical person and, by virtue of the applicable rules of private international law, differences relating to the commercial transaction fall within the jurisdiction of a court of another State, the State cannot invoke immunity from that jurisdiction in a proceeding arising out of that commercial transaction.

2. Paragraph 1 does not apply:
(a) in the case of a commercial transaction between States; or
(b) if the parties to the commercial transaction have expressly agreed otherwise.

3. Where a State enterprise or other entity established by a State which has an independent legal personality and is capable of:
(a) suing or being sued; and
(b) acquiring, owning or possessing and disposing of property, including property which that State has authorized it to operate or manage, is involved in a proceeding which relates to a commercial transaction in which that entity is engaged, the immunity from jurisdiction enjoyed by that State shall not be affected.

Art 2(1)(c)
(c) “commercial transaction” means:
(i) any commercial contract or transaction for the sale of goods or supply of services;
(ii) any contract for a loan or other transaction of a financial nature, including any obligation of guarantee or of indemnity in respect of any such loan or transaction;
(iii) any other contract or transaction of a commercial, industrial, trading or professional nature, but not including a contract of employment of persons.

Art 2(2)
In determining whether a contract or transaction is a “commercial transaction” under paragraph 1 (c), reference should be made
primarily to the nature
of the contract or transaction,
but its purpose should also be taken into account
if the parties to the contract or transaction have so agreed, or if, in the practice of the State of the forum, that purpose is relevant to determining the non-commercial character of the contract or transaction.

Vienna Convention on Diplomatic Relations
(1961)
Article 29
The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.

Article 39(2)
When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However,
with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.
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