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emiaj francinne mendoza - public international law – atty al conrad espaldon – ausl 1718
1. Because it is incompatible with the States were becoming increasingly involved
development of international criminal law in commercial trade
as it shields the heads of States and other
Challenges of State Immunity
high-ranking officials from being
accountable for grave human rights abuses 1. Conflict between State Immunity and
before otherwise competent courts prohibitions of a jus cogens rule
2. Recognition by the international community Examined in two perspectives:
that some rules of international law are of a. Pleas of State Immunities raised in criminal
jus cogens character entails that the proceedings
prohibition of crimes having the character ➢ Under customary international law,
of jus cogens should prevail over the rules incumbent foreign ministers when
on State immunity which do not enjoy the abroad enjoy full immunity from
status of jus cogens criminal jurisdiction as well as
3. It clashes with the basic human rights inviolability protecting them from any
‘act of authority’ by another State
Jurisdictional immunity
which would hinder them in the
- Being a rule of procedure, determines performance of their duties
whether the forum is competent to b. Pleas of immunity raised in civil proceedings
adjudicate a claim and does not affect the - SC of Germany removed immunity with
petitioner’s substantive rights or the respect to acta jure imperii
defendant’s responsibility - Germany should not rely on State Immunity
- May bar a criminal prosecution for a certain in respect to acta jure imperii in breach of
period for certain offenses; it cannot jus cogens
exonerate the person to whom it applies 2. Conflict between State immunity and human
from all criminal responsibility rights law
- One argument is that some HRs are of jus
Absolute immunity
cogens in nature and as such create erga
- The full and absolute territorial jurisdiction, omnes obligations for all States
and being incapable of conferring - Victims of international crimes are entitled
extraterritorial power would not seem to to both a remedy and a reparation and that
contemplate foreign sovereigns nor in their this right being an erga omnes obligation
sovereign rights as objects. One sovereign, imposes an obligation on national courts to
being in no respect amenable to another; remove immunity in a situation where a
and being bound by obligations of the victim would otherwise have no remedy
highest character not to degrade the dignity under national or international law
of his nation, by placing himself or its
Does immunity result in impunity?
sovereign rights within the jurisdiction of
another • An individual can be held liable:
- Justifiable when applied to a sovereign in 1. Before the courts of his own country
person, but was called into question with 2. When his State waives immunity and allows
the increased participation of States in another State to bring him to justice
commercial activities 3. After he ceases to hold public office which
means he may then be tried by any State
Restrictive Immunity
which has jurisdiction under international
- Imposition was needed with the law to do so
development of international trade when 4. Before the ICC
emiaj francinne mendoza - public international law – atty al conrad espaldon – ausl 1718
Terrorism exception to State immunity under 1976 US
Foreign Service Immunities Act
emiaj francinne mendoza - public international law – atty al conrad espaldon – ausl 1718