Abbreviations:
VCLT = Vienna Convention on Law of Treaties
ICJ Statute = International Court of Justice Statute
LP = Legal Personality
IL = International Law
WHO = World Health Organisation
SoSHD = Secretary of State for the Home Department
B&H v S&M = Bosnia & Herzegovina v Serbia & Montenegro
1
, Supv 7 - Jurisdiction & Immunities
Jurisdiction & Immunities
Note the earlier distinction in the Lotus Case - You can extend your law into acts
committed abroad, but to enforce it abroad would be a breach of that state’s territorial
sovereignty. So jurisdiction to enforce curtails prescriptive jurisdiction.
Jennings & Watts define jurisdiction as the extent of each state’s right to regulate conduct.
State’s jurisdiction is limited as follows:
1. Territorial Principle
a. The state can try ANYONE within its territory, and any crime committed on
its territory but not without permission abroad, per Lockerbie Case. Art 11
High Seas Convention states the flag holder state has jurisdiction over
crimes on board a ship reversing The Lotus Case where it was held the
damaged Turkish ship equated to damage to Turkish territory. Equally, in
Guantanamo bay, the US is in occupation, but not sovereignty. Thus courts
have no jurisdiction to hear the human rights abuses per Detainee
Treatment Act.
b. As far as hijacking, the Tokyo Convention on Offences and Certain Other
Acts on Board Aircraft 1963, grants jurisdiction to the state registered on
the plane while over the high seas. The Hague Convention on Suppression
of Unlawful Seizure of Aircraft 1970 gives jurisdiction to either the
registered state or the state which the plane lands in and Montreal
Convention for the Suppression of Unlawful Acts against the Safety of
Aviation 1971.
2. Nationality Principle
a. Conditions of nationality are for the domestic state (Art 1 Hague Convention
on Conflicts of Laws) so many states claim jurisdiction by nationality for
offences committed abroad.
3. The Universality Principle
a. This plugs the gaps - Prescriptive jurisdiction over offences committed
extraterritorially by non-nationals against non-nationals with no impact on
the state. So very narrow doctrine! Most states don’t exercise it anyway as
it’s so political and diplomatic, unless criminal resident in their state.
b. ANY state can try piracy (pirates outside the law, so any state can try them)
and war crimes. Thus Israel could try Eichmann. In US v Mexico it was held
that the breach of a separate obligation (Lotus Principle) doesn’t infect the
jurisdiction to enforce the other crime, eg the kidnapping didn’t preclude
the trial of Eichmann. Or Pinchoet (No 3) in UK.
c. The Arrest Warrants Case 2002 held that criminal jurisdiction only extends
to piracy. But other judges mooted that it extends to war crimes, crimes
against humanity (definitely slavery, but torture?) genocide and piracy.
O’Kiefe says it extends to all four. This case says diplomatic immunity is no
defence against universal jurisdiction as does Pinochet.
d. Note - Convention on Genocide obliges the state to take action when a
16
, genocide offender is in their territory. As does the Torture Convention
1984.
4. Passive Personality
a. This is where you claim jurisdiction based on nationality of the victim. EG: US
claim jurisdiction for homicide where victim is American.
5. Effects Doctrine? (US IDEA = NOT WIDELY ACCEPTED)
a. This is for enforcing legislation against foreign companies abroad which
impacts upon the US. This is okay for serious criminal conduct (Joyce v DPP -
Lord Haw-Haw UK had jurisdiction as treason can be committed anywhere)
but for corporate conduct (Anti-Trusts Law) is a bit far? EEC strongly
opposed to US Claim, but did uphold the principle where cartel abroad
impacted on EEC in Wood Pulp Case.
b. Unlawful extradition precludes trial in UK per R (Bennett) v Horseferry
Mags.
State Immunity
Distinction between non-justiciability (No jurisdiction to try) and immunity (Would have
jurisdiction but doesn’t as other party is State/Government). Lampen-Wolfe said no Art 6
problems as there was never jurisdiction to try in the first place so the right can’t arise.
But equally, even if it did arise, Al-Adsani v UK said it would be proportional to the
legitimate aim of complying with international obligations.
1. Non-Justiciability (Depends upon substance: “ratio materiae”)
a. No jurisdiction to judge:
i. Validity of International Instruments;
ii. Validity of Other State’s Laws or Acts of State unless actions in clear
breach of international law per Kuwait Airways v Iraqi Airways.
iii. The Foreign Affairs of the UK Government “One Voice Doctrine”
2. Immunity (Depends upon identity of litigant: “ratio personnae”)
a. Why does this rule exist for States?
i. State A can’t have jurisdiction over State B as both have equal
sovereignty and thus are equals in law. “Immunity imposed from
without” per Lord Bingham and Millett in Jones v Saudi Arabia.
ii. But this case says it doesn’t preclude responsibility and isn’t a
defence; it is a mere procedural bar preventing trying the state.
b. Absolute Immunity rule has been qualified by globalisation.
i. Acts jure imperii retain absolute immunity;
ii. Acts jure gestionis where they are commercial acts loses immunity;
iii. This recognises a state has a variety of capacities and only has
immunity when acting as a state. This distinction is upheld in the
State Immunity Act 1978.
iv. Nature & Purpose of Act?
1. If building army barracks clearly imperii act! However,
Trendtex v Central Bank of Nigeria, Kuwait Airways v Iraqi
Airways and Lampen-Wolfe said “purpose” is irrelevant as a
state has no ‘private’ needs as it is always acting for the
benefit of the country. But this test is adopted for ICL Draft
Articles on International Immunity and UN Convention.
2. The “nature” test is whether it is essentially commercial?
17
, Purchase of bank notes is commercial even if sovereign. This
view was taken in Trendtex v Central Bank of Nigeria and
denied immunity. But criticised by Victory Transport as
some acts are inherently sovereign such as purchasing a
battleship.
3. Victory Transport says to look at subject matter.
v. The “Two Stage Approach”
1. In Congreso del Partido the two stage test is:
a. Was the original contract a private act?
b. Was the act which caused the dispute a private act?
vi. State Immunity Act
1. s1 gives full immunity subject to exceptions in s2-11. But
even if the State has jurisdiction, it can’t be enforced unless
the State consents in writing per s13.
Personal Immunity
1. Vienna Convention on Diplomatic Immunities 1961. This is enacted in the
Diplomatic Privileges Act which is the same but s3 allows UK to limit other’s
privileges if they limit ours! Arts 29-31 say the Diplomat is inviolable and cannot be
arrested or charged. Host state under a duty to protect him. He is completely
immune criminally, but only immune civilly insofar as he is exercising diplomatic
functions. The host state cannot enter without permission of the Embassy per Art
24. Art 26 ensures freedom of movement while Art 27 protects the “diplomatic bag”
which can be large or small provided it is properly labelled. Art 28 ILC Draft
Articles on Diplomatic Courier and Bag uphold absolute immunity but many states
such as UK have “request or return” policies to look inside. Art 41 VCDR requires
diplomat to respect the laws of the state although his immunity may be waivered
by sending state under Art 32. These immunities continue even if diplomatic
relations are cut off per Art 45.
2. s14 SIA grants personal immunity to heads of state, government departments, thus
police officer had state immunity in Propend Finance v Singh. But in Re Rafidian
Bank two Iraqi companies didn’t get state immunity as weren’t exercising
governmental functions and both had personality in their own right. So if a State
start with s1 and look for exceptions to immunity; if anything else, look to s14 and
then if satisfied, look to exceptions. The problem is the court still has to grapple
with the question what is an “Exercise of sovereign authority”? Note personal state
immunity is not extended to family and concierge - Turn to Diplomatic Privileges
Act 1964.
3. Mofaz Case - The ICJ recognised personal immunity for heads of state and
government, and ministers for foreign affairs and defence however it is doubtful
whether this extends to ministers of culture, sport or education.
4. Arrests Warrants Case - No CURRENT head of state or government or minister of
foreign affairs can be arrested. This was confirmed in Pinochet No 3. But once not
serving, it moves from rationae personae to ratione materiae so immunity only exists
for acts done in office. This would include immunity for official acts in office
breaching IL according to Shaw. So as human rights breaches wouldn’t be an “official
act” and coupled with universal jurisdiction (Shaw) Pinochet suggests he could be
tried after he has left office.
18
VCLT = Vienna Convention on Law of Treaties
ICJ Statute = International Court of Justice Statute
LP = Legal Personality
IL = International Law
WHO = World Health Organisation
SoSHD = Secretary of State for the Home Department
B&H v S&M = Bosnia & Herzegovina v Serbia & Montenegro
1
, Supv 7 - Jurisdiction & Immunities
Jurisdiction & Immunities
Note the earlier distinction in the Lotus Case - You can extend your law into acts
committed abroad, but to enforce it abroad would be a breach of that state’s territorial
sovereignty. So jurisdiction to enforce curtails prescriptive jurisdiction.
Jennings & Watts define jurisdiction as the extent of each state’s right to regulate conduct.
State’s jurisdiction is limited as follows:
1. Territorial Principle
a. The state can try ANYONE within its territory, and any crime committed on
its territory but not without permission abroad, per Lockerbie Case. Art 11
High Seas Convention states the flag holder state has jurisdiction over
crimes on board a ship reversing The Lotus Case where it was held the
damaged Turkish ship equated to damage to Turkish territory. Equally, in
Guantanamo bay, the US is in occupation, but not sovereignty. Thus courts
have no jurisdiction to hear the human rights abuses per Detainee
Treatment Act.
b. As far as hijacking, the Tokyo Convention on Offences and Certain Other
Acts on Board Aircraft 1963, grants jurisdiction to the state registered on
the plane while over the high seas. The Hague Convention on Suppression
of Unlawful Seizure of Aircraft 1970 gives jurisdiction to either the
registered state or the state which the plane lands in and Montreal
Convention for the Suppression of Unlawful Acts against the Safety of
Aviation 1971.
2. Nationality Principle
a. Conditions of nationality are for the domestic state (Art 1 Hague Convention
on Conflicts of Laws) so many states claim jurisdiction by nationality for
offences committed abroad.
3. The Universality Principle
a. This plugs the gaps - Prescriptive jurisdiction over offences committed
extraterritorially by non-nationals against non-nationals with no impact on
the state. So very narrow doctrine! Most states don’t exercise it anyway as
it’s so political and diplomatic, unless criminal resident in their state.
b. ANY state can try piracy (pirates outside the law, so any state can try them)
and war crimes. Thus Israel could try Eichmann. In US v Mexico it was held
that the breach of a separate obligation (Lotus Principle) doesn’t infect the
jurisdiction to enforce the other crime, eg the kidnapping didn’t preclude
the trial of Eichmann. Or Pinchoet (No 3) in UK.
c. The Arrest Warrants Case 2002 held that criminal jurisdiction only extends
to piracy. But other judges mooted that it extends to war crimes, crimes
against humanity (definitely slavery, but torture?) genocide and piracy.
O’Kiefe says it extends to all four. This case says diplomatic immunity is no
defence against universal jurisdiction as does Pinochet.
d. Note - Convention on Genocide obliges the state to take action when a
16
, genocide offender is in their territory. As does the Torture Convention
1984.
4. Passive Personality
a. This is where you claim jurisdiction based on nationality of the victim. EG: US
claim jurisdiction for homicide where victim is American.
5. Effects Doctrine? (US IDEA = NOT WIDELY ACCEPTED)
a. This is for enforcing legislation against foreign companies abroad which
impacts upon the US. This is okay for serious criminal conduct (Joyce v DPP -
Lord Haw-Haw UK had jurisdiction as treason can be committed anywhere)
but for corporate conduct (Anti-Trusts Law) is a bit far? EEC strongly
opposed to US Claim, but did uphold the principle where cartel abroad
impacted on EEC in Wood Pulp Case.
b. Unlawful extradition precludes trial in UK per R (Bennett) v Horseferry
Mags.
State Immunity
Distinction between non-justiciability (No jurisdiction to try) and immunity (Would have
jurisdiction but doesn’t as other party is State/Government). Lampen-Wolfe said no Art 6
problems as there was never jurisdiction to try in the first place so the right can’t arise.
But equally, even if it did arise, Al-Adsani v UK said it would be proportional to the
legitimate aim of complying with international obligations.
1. Non-Justiciability (Depends upon substance: “ratio materiae”)
a. No jurisdiction to judge:
i. Validity of International Instruments;
ii. Validity of Other State’s Laws or Acts of State unless actions in clear
breach of international law per Kuwait Airways v Iraqi Airways.
iii. The Foreign Affairs of the UK Government “One Voice Doctrine”
2. Immunity (Depends upon identity of litigant: “ratio personnae”)
a. Why does this rule exist for States?
i. State A can’t have jurisdiction over State B as both have equal
sovereignty and thus are equals in law. “Immunity imposed from
without” per Lord Bingham and Millett in Jones v Saudi Arabia.
ii. But this case says it doesn’t preclude responsibility and isn’t a
defence; it is a mere procedural bar preventing trying the state.
b. Absolute Immunity rule has been qualified by globalisation.
i. Acts jure imperii retain absolute immunity;
ii. Acts jure gestionis where they are commercial acts loses immunity;
iii. This recognises a state has a variety of capacities and only has
immunity when acting as a state. This distinction is upheld in the
State Immunity Act 1978.
iv. Nature & Purpose of Act?
1. If building army barracks clearly imperii act! However,
Trendtex v Central Bank of Nigeria, Kuwait Airways v Iraqi
Airways and Lampen-Wolfe said “purpose” is irrelevant as a
state has no ‘private’ needs as it is always acting for the
benefit of the country. But this test is adopted for ICL Draft
Articles on International Immunity and UN Convention.
2. The “nature” test is whether it is essentially commercial?
17
, Purchase of bank notes is commercial even if sovereign. This
view was taken in Trendtex v Central Bank of Nigeria and
denied immunity. But criticised by Victory Transport as
some acts are inherently sovereign such as purchasing a
battleship.
3. Victory Transport says to look at subject matter.
v. The “Two Stage Approach”
1. In Congreso del Partido the two stage test is:
a. Was the original contract a private act?
b. Was the act which caused the dispute a private act?
vi. State Immunity Act
1. s1 gives full immunity subject to exceptions in s2-11. But
even if the State has jurisdiction, it can’t be enforced unless
the State consents in writing per s13.
Personal Immunity
1. Vienna Convention on Diplomatic Immunities 1961. This is enacted in the
Diplomatic Privileges Act which is the same but s3 allows UK to limit other’s
privileges if they limit ours! Arts 29-31 say the Diplomat is inviolable and cannot be
arrested or charged. Host state under a duty to protect him. He is completely
immune criminally, but only immune civilly insofar as he is exercising diplomatic
functions. The host state cannot enter without permission of the Embassy per Art
24. Art 26 ensures freedom of movement while Art 27 protects the “diplomatic bag”
which can be large or small provided it is properly labelled. Art 28 ILC Draft
Articles on Diplomatic Courier and Bag uphold absolute immunity but many states
such as UK have “request or return” policies to look inside. Art 41 VCDR requires
diplomat to respect the laws of the state although his immunity may be waivered
by sending state under Art 32. These immunities continue even if diplomatic
relations are cut off per Art 45.
2. s14 SIA grants personal immunity to heads of state, government departments, thus
police officer had state immunity in Propend Finance v Singh. But in Re Rafidian
Bank two Iraqi companies didn’t get state immunity as weren’t exercising
governmental functions and both had personality in their own right. So if a State
start with s1 and look for exceptions to immunity; if anything else, look to s14 and
then if satisfied, look to exceptions. The problem is the court still has to grapple
with the question what is an “Exercise of sovereign authority”? Note personal state
immunity is not extended to family and concierge - Turn to Diplomatic Privileges
Act 1964.
3. Mofaz Case - The ICJ recognised personal immunity for heads of state and
government, and ministers for foreign affairs and defence however it is doubtful
whether this extends to ministers of culture, sport or education.
4. Arrests Warrants Case - No CURRENT head of state or government or minister of
foreign affairs can be arrested. This was confirmed in Pinochet No 3. But once not
serving, it moves from rationae personae to ratione materiae so immunity only exists
for acts done in office. This would include immunity for official acts in office
breaching IL according to Shaw. So as human rights breaches wouldn’t be an “official
act” and coupled with universal jurisdiction (Shaw) Pinochet suggests he could be
tried after he has left office.
18
