1.5 International Law

ILC

International Law Commission

What 4 things does the ILC do?

1. Studies the strengths and weaknesses of international law

2. Analyzes and discusses issues that might require new laws

3. Drafts proposals for new international laws

4. Submits these proposed new laws to the UNGA for possible adoption in future treaties

What does the ILC contribute to?

• Progressive development of international law

• Codification of international law

Jurisdiction

The extent/scope of a state’s right, under international law, to exercise its powers

What are the laws of jurisdiction said to define?

The “traffic rules” of states’ rights

5 grounds for the exercise of jurisdiction

1. Territorial: where it happened

2. National: nationality of defendant (accused)

3. Passive Personality: nationality of victim

4. Protective: very important things have been messed with so you have a right to try

5. Universal: international crimes

Concurrent jurisdiction

More than one state claims jurisdiction over the same event/person/entity/issue

2 types of territorial jurisdiction

1. Objective territoriality: based on where the crime happened

2. Subjective territoriality: based on where the crime was planned

3 immunity under international law

1. State (sovereign immunity)

2. Functional (of state agents)

3. Personal 

State immunity: belief

You should not be able to sue a foreign state in a domestic court

2 reasons why domestic courts should not exercise jurisdiction over a foreign state

1. Principle of sovereign equality of states

2. Separation of powers doctrine

What is the modern doctrine for state immunity? Old?

Modern = relative or restrictive state immunity

Old = absolute state immunity

4 reasons why restrictive immunity is deemed more fair and rational than absolute immunity

1. States are increasingly involved in commercial/private activities 

2. States can be sued in their own domestic courts, so plaintiffs should be able to do the same with foreign states 

3. Holding a state liable for “private/commercial” acts does not severely impinge on its sovereignty 

4. Law does not like situations in which a harmed party has no remedy

2 kinds of state action

1. Jure Imperii

2. Jure Gestionis

What is Jure Imperii

When a state acts in its “sovereign capacity” (immunity applies)

What is Jure Gestionis

When a state acts in a “private or commercial capacity” (no immunity)

How are Jure imperii and Jure gestionis distinguished from each other>\?

Looking at the nature of the state’s act (majority view)

OR looking at the purpose of the state’s act (minority view)

Does a jus cognes violation cause the loss of immunity?

No

Functional immunity: coverage

Covers the official “function: of a state agent, and is limited to the official acts related to that official function 

What is an “act of state”

The agent’s official act is attributable to their State

What is the relationship between an agent and their state under functional immunity? Exceptions?

An act by an agent remains “forever” covered by immunity, even after they cease to be an agent of the state

EXCEPTIONS:

The state can withdraw immunity of one of its agents (someone else can sue the agent then)

& immunity does not apply for agents accused of international crimes 

2 types of personal immunities

1. Diplomatic immunity

2. Immunity of top government officials 

History of diplomatic immunity (as a type of personal immunity)

Originally based on customary international law

Now based on the treaty, 1961 Vienna Convention on Diplomatic Relations

Personal immunity: defintion

The immunity follows the individual wherever they go and whatever they do, whether they are engaged in official state business or private activity

What does diplomatic immunity cover?

Immunity of property (cannot be entered, searched, occupied, taken, etc.)

• ex: officies, car, diplomatic pouch

Immunity of person (cannot be taxed, fined, searched, arrested, etc.)

• Includes the diplomat and their family 

• Lasts only as long as they are a diplomat

“Persona non grata”

A diplomat who is expelled from a country

“Person no longer welcome”

Who does immunity of top government officials refer to?

Prime ministers, Presidents & Kings, minister or Secretary of Foreign Affairs (Foreign ministers)

What is the prevailing view for immunity of top government officials who commit international crimes?

They are immune until they step down from their position

What are the 4 international crimes?

Genocide, torture, war, slavery