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20190415200028chpt_6_limitations_on_state_sovereignty_1.pptxLimitations on State Sovereignty: Immunities and Treatment of Individuals
Chpt 6 Cassese
Purpose
Explore the consequences of two principles:
Sovereign Equality of States
Non-Intervention
More specifically, if States are sovereign and equal, and are not supposed to meddle in the internal affairs of another country, in what circumstances may one State file charges against another State using their own courts
States are sovereign but there are limitations
Basically States are immune from the jurisdiction of other national courts, unless:
Their action was of a private nature, not public (function and purpose)
They violated a Jus Cogen (genocide, grave repeated human rights abuses)
Injured States could use diplomatic measures, international courts, to right a wrong---we learn more about this later
Diplomats reside in foreign nations and therefore have both personal and functional immunity
but not without limitations, when the diplomat becomes a private citizen again, they will lose their immunity
6.1 Introduction
What is the principle which is explored in this chapter?
Respect for State Sovereignty and non-intervention
6.1 Introduction
Can a State interfere with foreign armed forces lawfully stationed on its territory?
No
Unless authorized by treaty rules or ad hoc consent
6.1 Introduction
Can a State perform coercive act on board a foreign military or public (ie gov’t owned and operated) ship or aircraft?
No
Cannot enforce their laws there
6.1 Introduction
Are the acts of a foreign State subject to the jurisdiction of another State?
Depends
Not if the act is part of the sovereign capacity of a State
What principle?
Sovereign immunity of States
6.1 Introduction
Can a State impose its will on, or interfere with, or coerce a foreign State official?
No
6.2 Immunity of Foreign States from Court’s Jurisdiction
The immunity of foreign States from courts’ jurisdiction is based upon a twofold rationale.
What is this rationale?
1) States must not interfere with the public acts of foreign sovereign States out of respect for their independence.
2) Judiciary should not interfere with the conduct of foreign policy by either national or foreign governmental authorities.
6.2 Immunity of Foreign States from Court’s Jurisdiction
So if courts are not to interfere with the foreign policy of national and foreign governments, what is the proper organ responsible for addressing disputes?
Diplomatic channels
How eventually did the British Court of Appeal decide a case involving a Belgium postal vessel and its collision with a British steam-tug in British territorial waters?
The owners of the British vessel were not owed damage b/c the ship was a public vessel, performing a public action
6.2.2 Restrictive Doctrine of Immunity of Foreign State from Civil Jurisdiction
What is the principle of restrictive immunity?
In some circumstances the sovereign immunity can be restricted
What types of circumstances determine if a state can be tried in a foreign state’s courts?
Jure gestionis, the private or commercial transactions of States are subject to foreign jurisdiction
Jure Imperi, the public acts, or action by a foreign State in its capacity as a sovereign are immune
Do most states follow this principle?
Yes, but China and some Latin American countries do not
6.2.2 Restrictive Doctrine of Immunity of Foreign State from Civil Jurisdiction
The book gives an example of a US aircraft based out of NATO base in Italy. What happened, what was the Italian Court of Cassation’s finding?
6.2 Immunity of Foreign States from Court’s Jurisidiction
Currently controversy: Justice Against Sponsor’s of Terrorism Act
Why do you think this principle is important for international relations?
6.2.2 Restrictive Doctrine of Immunity of Foreign State from Civil Jurisdiction
How can one define acts performed by a foreign State as either public or private?
1) What is the nature of the foreign act
2) What the function of the foreign act is intended to fulfill
6.2.3 Immunity of Foreign State from Jurisdiction in Employment Matters
Where does the immunity of foreign State from jurisdiction in employment matters come from?
Respect for the independence and sovereignty of foreign States in the internal organization/structure of the State
A State may not sit in judgment over the employment relationship b/w individuals (whether or not nationals) and foreign States
State can enact Sovereign Immunity
6.2.3 Immunity of Foreign State from Jurisdiction in Employment Matters
In what context do States often employ foreign nationals?
Diplomacy, Embassies
6.2.3 Immunity of Foreign State from Jurisdiction in Employment Matters
The textbook gives the example of an Irish national employed by the US Embassy in London. Can anyone tell us about the case?
6.2.3 Immunity of Foreign State from Jurisdiction in Employment Matters
Over time greater restrictions on employment immunity has been restricted, can you list in what ways employment restricted?
Greater emphasis on private nature of employment
The types of jobs these foreign employees are undertaking…..security/cleaning
Grey area working conditions, pay etc.
6.2.4 Can Peremptory Rules of International Law (Jus Cogens) bar the application of the customary international rule on immunity from jurisdiction?
Are jus cogens superior to rule of immunity?
Theoretically yes, jus cogens are superior, but this is an area in transition
Jus Cogens and State Immunity
What if a foreign country imprisons and forces labor on your citizens?
Jewish American in Germany
What if your national is tortured by another country?
Case of Al-Adsani v. UK
6.2.5 Immunity from Execution
What does State immunity from execution mean?
State property or assets cannot be seized nor any other measure of execution or preventive measure be taken against the property of a foreign State intended for public function
6.3 Immunities of Organs of Foreign States
Can a State call to account on its own territory a foreign State official for acts performed in the exercise of his/her functions?
NO
Why?
Because the “individual doing a hostile act authorized and ratified by the government of which he/she is a Member cannot be held Individually answerable….the Act becomes one for which the State to which he belongs is …alone responsible.”
The act may not be attributed to them, but rather to the State for which the work
6.3 Immunities of Organs of Foreign States
What about those German Border Guards in the former German Democratic Republic (East Germany)? What happened? What did the courts decided?
6.3 Immunities of Organs of Foreign States
Are there any limitation for individual immunity?
Yes
For what types of acts?
Official acts that:
Are in breach of International Law
Performed on the territory of the former State
Involves the commission of a serious criminal offense (murder)
International Crimes
**for these cases, in addition to State responsibility, the individual may be held personally responsible as well
6.4 Immunities of Diplomatic Agents
Where are the rights of Diplomats laid down?
Vienna Convention on Diplomatic Relations
What are the two classes of privileges and immunities given in this convention?
Relating to Property
Immunities that attach to the premises and assets used by foreign State official for accomplishing their mission
Relating to Personal Immunities
Immunities covering personal activities of that official
6.4 Immunities of Diplomatic Agents
What kind of property rights to agents of States have?
Premises of diplomatic mission are inviolable
Area of sovereign mission are not foreign territory, rather local and Sate enforcement agencies cannot exercise their powers there
Property of the foreign diplomat is immune from search, requisition, attachment or execution
Diplomatic bag/courier/messages may not be violated
6.4 Immunities of Diplomatic Agents
What type of personal immunities do agents of States possess?
Immunity from arrest and detention
Immunity from criminal jurisdiction
Immunity from civil and administrative jurisdiction of the receiving state
Inviolability of the diplomatic agent’s private residence, papers, correspondence, and property
Exemption from all dues and taxes, personal or real, national, regional, or municipal
6.4 Immunities of Diplomatic Agents
What does it mean to be a persona non grata?
Person unacceptable to the receiving state
What about immunity for a diplomatic agent who has the nationality of the receiving State or ‘permanent residence there’?
Only immunity for actions performed in the exercise of his official functions
6.5 Immunities of Consular Agents
Who are consular agents, how do their duties differ from those of diplomats?
Not in charge of relations b/w countries
Duties:
Work with commercial interests of state
Contracts, marriages, visas, citizenship
Help and advise nationals that are arrested in foreign State
6.5 Immunities of Consular Agents
What type of immunities do consular agents have and do NOT have?
Do not have personal immunity
Has functional immunity….immunity of actions made in official capacity
Consular premises are also inviolable
Including archives, papers, documents
6.6 Immunities of Heads of States and Government and Senior Members of Cabinet
What types of immunities do Heads of State and Senior members of Cabinet enjoy?
Both personal and functional
Wherever the official performs their transactions, live etc.
Limitations?
Senior members only have immunity when on an official visit….not when traveling in secret or for personal reasons
6.6 Immunities of Heads of States and Government and Senior Members of Cabinet
Why do Heads of States have immunity?
‘Head of state immunity, like foreign sovereign immunity, is premised on the concept that a state and its rulers are one for the purposes of immunity’
All states are equal—cannot submit others to their own jurisdiction
6.7 Duration of Privileges and Immunities
When does functional immunity cease to exist for a State official?
It does not cease, if they act on behalf of the State then they are immune
When does personal immunity cease to exist?
When they are no longer working in their official capacity
Have made it home from their mission
6.7 Duration of Privileges and Immunities
Can a former official be held accountable for their personal crimes committed in a foreign country when they have completed their service for their State?
Yes
6.8 Personal Immunities and International Crimes
While individuals lose personal immunities when they leave office, what about individual prosecution for international crimes they accrued while acting as State agents?
They are not safe from prosecution
Especially if their State waives their immunity, allows for their hearing
6.9 Limitations upon a State’s Treatment of Foreigners and Individuals
What kind of rights do foreign individuals have in a State when they interact in their legal/criminal system?
Must be treated with a minimum standard of civilization, regardless of how citizens of the host state are treated by authorities
6.9 Limitations upon a State’s Treatment of Foreigners and Individuals
Are foreigners subject to the laws of a State?
Yes
How must they be treated?
Must not be discriminated against
Right to respect of their life and property
May not be collectively expelled from a country based upon: ethnic, racial, religious, national grounds
Entitled to judicial remedies to vindicate their rights in the host country
