Jurisdiction and Immunities in International Law

Key Concepts

• Jurisdiction: Competence to make, apply, and enforce legal rules.
  • Domestic Law: Ecosystem of legislative, executive, and judiciary branches.
  • Types: Two main types:
    • Prescriptive Jurisdiction: The right to make rules binding people.
    • Enforcement Jurisdiction: The right to take executive action to enforce rules.

Types of Jurisdiction

Enforcement Jurisdiction

• Based on territoriality: legal actions within the state's territory.
• Can extend through extradition treaties: Agreements allowing jurisdiction across borders.
• Example: United States' multiple extradition treaties.

Prescriptive Jurisdiction

• More complex with multiple principles:

  • Territorial Principle: Jurisdiction over events occurring within the state's territory.
  • Nationality Principle: Jurisdiction over nationals irrespective of location, includes individuals and corporations. Example: Barcelona Attraction case.
  • Protective Principle: Jurisdiction over acts injuring national interest, regardless of where the act occurred or who committed it. Example: Eichmann in Jerusalem case.
  • Effects Principle: Jurisdiction over acts outside territory that have effects within its territory.
  • Passive Personality Principle: Jurisdiction over acts abroad harming or threatening nationals. Gaining traction due to terrorism.
  • Universal Jurisdiction Principle: Jurisdiction over certain acts (piracy, crimes against humanity, grave war crimes) universally applicable.

• Special Jurisdictional Regimes: Based on treaties like the Law of the Sea Convention (flag state jurisdiction) and the Outer Space Treaty (nationality-based jurisdiction).

• Jurisdiction often overlaps; courts deliberate and decide.

Immunities

• Failure to accord immunity is a breach of international law due to sovereignty and sovereign equality.
• Sovereign Immunity: Absolute immunity of sovereign state from jurisdiction of other states, though there are exceptions.
  • Acta iure gestionis: Acts of commercial nature, states consent to limited immunity to fulfill obligations.
  • Acta iure imperii: Governmental acts, retain immunity.

Types of Immunities

Functional Immunities

• Granted to state representatives and international organization representatives.
• Key requirement: Act must be official, not private.
• Types:
  • Immunity Ratione Personae: Immunity during tenure; lost when status is lost.
  • Immunity Ratione Materiae: Permanent immunity for official acts.

Heads of State

• Enjoy absolute immunity (ratione personae) while in office: Granted by custom, diplomatic protocols, and treaties (e.g., Rome Statute of the ICC).
• After tenure, retain immunity for official acts, but liable for non-official acts (international crimes, torture).

Foreign Ministers and Ambassadors

• Foreign Ministers: Same immunities as heads of state.
• Ambassadors and Consuls:
  • Governed by the Vienna Conventions on Diplomatic and Consular Relations.
  • Immunities based on functions; consuls have less immunity.

Conclusion

• Thank you for the semester and see you around!