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How far does the Systemic Approach to Immunities take us?

  • Philippa Webb (a1)
Extract

The International Law Commission (ILC) explains in its 2017 Commentary to Draft Article 7 of its Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction that the draft articles are “intended to apply within an international legal order whose unity and systemic nature cannot be ignored.” The quest for coherence is admirable. It enhances legal certainty and predictability in an evolving area of the law. But a systemic approach can also go too far—stretching analogies and ignoring differences, seeing a trend where there is none. The trajectory of the ILC's work on Draft Article 7 illustrates certain dangers.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 Int'l Law Comm'n, Report on the Work of Its Sixty-Ninth Session, UN Doc. A/72/10 (Sept. 11, 2017) [hereinafter 2017 ILC Report].

2 Secretariat Memorandum para. 17, UN Doc. A/CN.4/596 (2008).

3 Vienna Convention on Diplomatic Relations preambl. para 4, Apr. 18, 1961, 500 UNTS 95 [hereinafter VCDR].

4 Id. art. 39(2) (it is narrower than immunity ratione materiae in that it only exists with respect to the jurisdiction of the receiving state).

6 For the close relationship with immunity of a head of state, see Joanne Foakes, The Position of Heads of State and Senior Officials In International Law 43–7 (2014).

7 VCDR, supra note 3, art. 31.

8 Reyes v. Al-Malki, [2017] UKSC 61, para. 28.

9 Id.

10 For a good overview, see Foakes, supra note 6, at 8–9.

11 Concepción Escobar Hernández (Special Rapporteur for Immunity for of State Officials from Foreign Criminal Jurisdisction), Fifth Report, UN Doc. A/CN.4/701 (June 14, 2016) [hereinafter Fifth Report].

12 Id. at paras. 24–25, 173

13 Id. at 50 n. 233; 2017 ILC Report, supra note 1, at 179 n. 762.

14 Fifth Report, supra note 11, at paras. 44, 45. See also id. at para. 26 where the Special Rapporteur observes that UNCSI is “in principle less relevant . . . since it refers to immunity from jurisdiction of the State.”

15 2017 ILC Report, supra note 1, at 179–80 n. 763.

16 Id. at 182 n. 766.

17 Fifth Report, supra note 11, at para. 225.

18 See infra note 27.

19 Fifth Report, supra note 11, at para. 227.

20 Id.

21 Letelier v. Chile, 748 F.2d 790 (2d Cir. 1984); Corte di cassazione (Cass.), 11 marzo 2004, n. 5044/04 Ferrini v. Ger., 128 ILR 674 (It.) and Cass., Areios Pagos [A.P.] [Supreme Court] 11/2000 Prefecture of Voiotia v. Ger. (Greece), 129 ILR 513.

22 Federal Constitutional Court of Germany, May 15, 1995 (This is not an inter-state case and Germany did not claim immunity. It was a constitutional question of proportionality, not immunity); R v. Mafart and Prieur, (N.Z.) (Nov. 22, 1985) (France did not claim immunity on behalf of its officials); Jiménez v. Aristeguieta , 311 F.2d 547 (5th Circuit, 1962) (this was an extradition case based on a 1922 bilateral treaty. The doctrine in question was act of state, not immunity); Corte di cassazione (Cass.), 29 novembre 2012, n. 46340/2012, ILDC 1960 (IT 2012) (It.) (The United States did not invoke immunity for its officials and the territorial exception was not discussed).

23 Jane Doe I v. Liu Qi, Plaintiff A, v. Xia Deren, United States District Court, N.D. California (C 02-0672 CW, C 02 -0695 CW).

24 Prosecutor v. Blaškić, Case No. IT-95-14-AR108 bis, Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Appeals Chamber Judgment para. 41 (Oct. 29, 1997).

26 See Sixty-Ninth Session, International Law Commission.

27 Int'l Law Commission, Immunity of State officials from foreign criminal jurisdiction: Titles of Parts Two and Three, and texts and titles of draft Article 7 and annex provisionally adopted by the Drafting Committee at the sixty-ninth session, UN Doc. A/CN.4/L.893 (2017). The (recorded) vote was twenty-one in favor, eight against, one abstention. See also Giulia Bernabei, Nobody's Land: Where All Step but No One Settles, iLawyer Blog (Dec. 10, 2017).

28 2017 ILC Report, supra note 1, at para 126.

29 Hazel Fox & Philippa Webb, The Law of State Immunity 620 (3d ed 2015).

30 Jurisdictional Immunities of the State (Ger. v. It.), 2012 ICJ Rep. 99, para. 91 (Feb. 2).

31 Stichting Mothers of Srebrenica v. Neth. para. 158, App No. 65542/12 (Eur. Ct. H.R., June 11, 2013).

32 Jones v. UK, 2014 Eur. Ct. H.R. 176, para 92; Kazemi Estate v. Iran, [2014] S.C.R. 176 (Can.).

33 Expressed in its third preambular paragraph.

34 See Draft Article 1(2) and Commentary thereto.

36 GA Res 59/38 para. 2 (2004).

37 Reyes, supra note 8. Compare Article 11 UNCSI and Article 31(1)(c) VCDR.

38 VCDR, supra note 3, art. 39(2).

39 Reyes, supra note 8, at paras. 26–33.

40 Id., at paras. 63–5.

41 Id., at para. 65.

42 Id. at para. 68.

I thank Curtis Bradley, Ben Batros, and Giulia Bernabei for comments on an earlier draft. This essay is written in my personal capacity.

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