6L - Jurisdiction, Immunitie

Territorial sovereignty

Control over territory and persons

• Access to territory

• Removal from territory: banishment, deportation, extradition

Jurisdiction of States

Forms of jurisdiction

• Legislative (prescriptive): the legislature creates laws

• Adjudicative: adjudicative bodies hear and determine individual cases

• Enforcement: the executive enforces the law

Territorial & extraterritorial jurisdiction

• Territorial jurisdiction

  • This is the primary and default basis of jurisdiction in international law.

  • Territorial jurisdiction is generally exclusive, meaning other states may not exercise authority there without consent

• Extraterritorial jurisdiction (exception)

  • This refers to a state exercising jurisdiction over acts or persons outside its territory. It is exceptional and must be justified under international law

Jurisdiction and sources

• Lotus case, para. 44

• “International law governs … Restrictions upon the independence of States cannot therefore be presumed”

• Everything that is not prohibited is allowed?

• Burden of proof (paras. 41-42)

  • France: Turkey must prove some title of jurisdiction

  • Turkey: France must prove violation

  • The burden of proof lies on France to show that Turkey’s exercise of jurisdiction was prohibited by international law.

> PCIJ held that States are free to exercise jurisdiction unless there is a prohibitive rule of international law

Principles of criminal jurisdiction

The territorial principle

• Territorial sovereignty: general competence

  • Under the territorial principle, a state has general competence

• Subjective and objective territorial principle

  • Subjective: where it was initiated

  • Objective: where the person died from the bullet

• The effects doctrine: where the effects are felt, can be even in variety of countries

The active nationality principle

• Extra-territorial jurisdiction

• Persons with the nationality of a State committing a crime abroad

• How is nationality determined? Nottebohm case - establish a genuine link

The flag principle

• Ships and airplanes

  • Ship = flag State

  • Airplane = State of registration

• Basis: nationality of ship/airplane

• Floating / Flying territory? (Hernández, 216)

  • means mobile spaces outside a state’s land—like aircraft in flight or ships at sea—where a state can still exercise jurisdiction, usually based on registration or flag state.

• Jurisdiction over acts on board established on the basis of the nationality of the ship/airplane

• Examples

  • Article 5(1)(a) Convention Against Torture

  • Article 6(1)(a-b) International Convention for the Suppression of Terrorist Bombings

The passive personality principle

• Extra-territorial jurisdiciton

• Persons acting against a national of a State: victim is a national of a State claiming jurisdiction over offender

• Controversial

The protective principle

• Extra-territorial jurisdiciton

• Person with a foreign nationality acting against the security of a State, when abroad

  • National security/Security government officials

  • Economic security/Financial security

The universality principle

• Extra-territorial jurisdiction

• Persons acting within one State, but without any concrete link to another State

• Criteria to determine applicability principle

  • Nature of the crime

  • International recognition

  • Presence of the suspect

  • Supplementary/complementary

• Crimes under IL / international crimes / core crimes / atrocity crimes

• Some outstanding issues

  • Safeguards to prevent abuse: There is concern that universal jurisdiction may be used for politically motivated prosecutions.

  • Transitional justice: Universal jurisdiction may conflict with domestic amnesties, truth commissions, or peace processes, raising questions about whether international prosecutions undermine post-conflict reconciliation.

  • Immunities: A major unresolved issue is whether state officials, especially heads of state or government, enjoy immunity before foreign national courts when accused of international crimes.

Treaty crimes

Treaty crimes are specific acts prohibited by international treaties (e.g., torture, terrorism) that states are obligated to criminalize domestically. These treaties create obligations targeting individuals, not states, and aim to prevent impunity for serious international crimes.

Treaties often define certain conduct as criminal and require states to implement domestic laws. Key points:

• Scope: Obligations are directed at individuals; states themselves are not criminally liable.

• Examples: Convention against Torture (CAT): Requires states to criminalize torture and hold individuals accountable.

State obligations under treaties include:

• Criminalize the conduct and provide effective sanctions.

• Establish jurisdiction based on territoriality, nationality, or presence.

• Prosecute or extradite offenders (aut dedere aut judicare).

Treaty-based criminalization represents indirect enforcement, relying on domestic legal systems to implement international prohibitions.

Obligation to Extradite or Prosecute (aut dedere aut judicare)

To ensure accountability, treaties require states to either prosecute alleged offenders or extradite them to a state willing to do so.

Key elements:

• Mandatory choice: States must prosecute or extradite (ICJ, Obligation to Prosecute or Extradite case).

• Presence requirement: Offender must be on the state’s territory; trials in absentia are generally not allowed.

• Relevant treaty provisions: Article 5(2), Convention against Torture

• Quasi-universal jurisdiction: Jurisdiction arises from the offender’s presence. If a state does not extradite, it must prosecute.

• Inter partes universality: Obligation exists among treaty parties, not automatically for all states under general international law.

Individual Criminal Responsibility

Foundation: Individuals bear criminal responsibility under treaty crimes.

Uncertainty: It is debated whether individual responsibility exists independently under international law or only arises once states implement the treaty domestically.

Purpose: Ensures that serious international crimes cannot go unpunished, even across borders.

State immunity

Sovereignty: equality of States

• From sovereign immunity to State immunity

Sources:

• European Convention on State Immunity (8 State parties)

• UN Convention on Jurisdictional Immunities of States and Their Property (2004) (23 contracting States; not in force, 30 required) (UN Convention)

• Customary IL

Types of immunities

• Immunities linked to State

  • 1. the State as a legal person

  • 2. State officials (also officials on mission)

  • 3. diplomats / consular officers

• Immunity from jurisdiction (of the courts)

• (Immunity from legal processes)

• Immunity from execution (of court decisions)

Absolute v. restrictive State immunity

• Absolute immunity

• Restrictive immunity

  • Acta jure imperii: governmental (sovereign) acts = State immunity

  • Acta jure gestionis: commercial acts = no State immunity

  • Test to determine whether something is a commercial transaction

    • The nature of the contract or transaction

    • The purpose of the contract or transaction

    • Article 2(2) UN Convention: two-stage approach

    • Contextual approach

    • > see Trendtex v. Central Bank of Nigeria; Empire of Iran case

      • Foreign states do not have immunity for commercial acts; only sovereign acts are protected.

      • Courts distinguished sovereign acts (immune) from commercial/contractual acts (not immune), allowing some claims against Iran.

What about bank account of embassies?

• Immune if used for governmental/diplomatic purposes; not immune if used for commercial activities (acta jure gestionis).

What about buildings that are being claimed as premises of diplomatic mission?

• Immune if used as official diplomatic premises (Vienna Convention); immunity may not apply if used for commercial purposes.

State immunity - waiver

To waive = “refrain from insisting on or using (a right to claim)”

• Applied to state immunity: if a state waives immunity, it is voluntarily giving up its protection and allowing itself to be sued in a foreign court

Articles 7-8 and 19 UN Convention

Immunities belong to the State, and only the State can waive

> State immunity is a sovereign right, and only the State can decide to give it up

State immunity - exception (?)

The territorial tort exception (?)

• Normally, State immunity protects a state from being sued in foreign courts, even for torts.

• The territorial tort exception allows a state to be sued in the courts of another state if the tort (a wrongful act causing harm) occurs on the territory of that state.

• Article 12 UN Convention

• The exception generally applies only to non-sovereign acts, not to governmental acts (acta jure imperii).

  • Questions arise whether it applies to human rights violations or jus cogens breaches (serious violations of peremptory norms, e.g., genocide, torture), which some argue could override immunity.

• Customary IL (?)

Human rights or jus cogens exceptions (?)

• ICJ Germany v. Italy: Jurisdictional Immunities of the State (2012)

  • Serious violations of human rights / IHL

  • Violations rules of jus cogens

  • Held that Italy violated Germany’s immunity by allowing civil claims for WWII atrocities, even though the acts were serious human rights violations; immunity still applied.

  • “… are rules of jus cogens, there is no conflict between those rules and the rules on state immunity”

  • “The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State”

• Iran v. USA: Certain Iranian Assets

  • Examines whether state immunity can be claimed for assets used to satisfy claims related to human rights violations or terrorism.

Pending case before the ICJ

• Alleged Violations of State Immunities (Islamic Republic of Iran v. Canada)

• Germany v. Italy no 2: Questions of Jurisdictional Immunities of the State and Measures of Constraint against State-Owned Property

Senior and other Government Figure

State officials acting as such

• Individuals who represents the state or who exercises state functions - ILC, Draft Article 5

• Immunity

• Ratione materiae: immunity because of the official act (even after office)

Former heads of State and other government figures

• Immunity from ratione materiae

Serving heads of State

• Immunity from ratione personae: immunity because of the person (while in office)

• heads of state, heads of government, and foreign ministers

• UK Supreme Court, Ex Parte Pinochet (No 3) case; French Court de Cassation, Ghaddofi case)

• Immunity ratione personae is of highly temporal nature

Other High Ranking Governing figures

• ICJ, Arrest Warrant (Congo v. Belgium) case, 2002

• “certain holders of high ranking office in a state, such as the head of state, head of government and minister for foreign affairs, enjoy immunities from jurisdiction in other states both civilian and criminal

• Ratione personae for all serving senior government figures?

  • Defence Minister - Mafaz, former Israeli Defence Minister; retired, no current immunity

  • Minister of Commerce - Bo Xilai, Former Chinese Commerce Minister; convicted and imprisoned in China; no current immunity

High Ranking State Officials

While holding the office enjoy full immunities

• No matter if in private or official visit

• No matter if acts committed in official or private capacity

• Even for acts committed prior to the period of office

When cease to hold office

• No immunity for acts committed prior or subsequent to the period of office

• No immunity for acts committed during office in a private capacity

Commission of crimes under IL

Immunity ratione personae:

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

ILC Draft article 7 on the limitations and exceptions to immunity from foreign criminal jurisdiction

• Immunity ratione materiae from the exercise of foreign criminal jurisdiction shall not apply in respect of the following crimes under IL:

  • a) crime of genocide

  • b) crimes against humanity

  • c) war crimes

  • d) crime of apartheid

  • e) torture

  • f) enforced disappearance

See arguments raised in Khurts Bat

• Ratione personae: Absolute while in office, no exceptions for international crimes — but Khurts Bat did not qualify.

• Ratione materiae: Rejected for torture.

• Key argument: International crimes (esp. torture under UNCAT) cannot be “official acts”; otherwise universal jurisdiction would be meaningless.

Diplomatic immunities

Sources

• Vienna Convention on Diplomatic Relations (1961) (193 State parties) (VCDR) + Optional Protocol (70 State parties)

• Vienna Convention on Consular Relations (1963) (182 State parties) (VCCR) + Optional Protocol (52 State parties)

• Customary IL

Diplomatic relations, functions and status

• Diplomatic relations

• Functions of a mission

• Status: embassies

• Status: ambassadors and diplomats

Inviolability and immunities

• Inviolability

• Diplomats / courier, premises, archives / documents,

• Official correspondence / diplomatic bag, private residence

• Entry by State officials only with the permission of the head of mission

• Due diligence obligation

Immunities:

• Criminal jurisdiction:

  • Personal immunity - immunity ratione personae

    • Civil/administrative jurisdiction

• Immunities when no longer a diplomat:

  • Functional immunity - immunity ratione materiae

  • Waiver

Responses to violations of diplomatic law

• Violations of national law

• Violations of international law

• Tehran Hostages case

  • Issue: 52 U.S. diplomats held hostage in Tehran; violation of the Vienna Convention.

  • ICJ ruling: Iran must release hostages and protect diplomats; failing to do so breaches customary international law.

  • Principle: States are responsible for safeguarding diplomatic personnel and premises; diplomatic immunity is absolute.