208
Commentators view this convention as constituting
“a
significant stage in the harmonization and articulation of the international law of State
immunity.”
209
The Convention
“applies
to the immunity of a State and its property from the jurisdiction of
the courts of another
State”
210
and aims to enhance legal certainty and
“contribute
to the
codification and development of international law and the harmonization of practice in this
area.”
211
The
“State”
is defined by the Convention in Article 2(1)(b)(iv) to include
“representatives
of the State acting in that
capacity,”
but Convention provisions do not
extend to cover criminal proceedings.
It is important to clarify that for every State act, there are two types of possible
responsibility: international responsibility for a State and criminal responsibility for an
individual. The legal regime for the two types of responsibility can differ.
212
Thus, even if an
act can be attributed to a State, the attribution on its own does not mean that a State official
enjoys immunity with respect to that act.
213
…
even if an act can be attributed to a State, the attribution on its
own does not mean that a State official enjoys immunity with
respect to that act.
Allard IJHR Clinic
26
Significance of the Convention
Article 7(1) of the Convention specifies that a State cannot invoke immunity from jurisdiction
in a foreign court if it has expressly consented to the exercise of jurisdiction
“with
regard to
the matter or case: a) by international
agreement,”
among others. Extradite or prosecute
clauses in international conventions could reasonably be interpreted as express consent to
jurisdiction in the courts of other states party for alleged violations of the Convention.
Legal scholars Roger
O’Keefe
and Christian J. Tams argue that the
adoption of the Convention reflects a tectonic shift in
States’
opinio juris
from
the early 1980s, accelerated by the waning and end of the Cold War and
changes within the G7, in favour of the restrictive doctrine of State immunity
in one form or another
…
The Convention reflects a general acceptance
among States that the restrictive doctrine of State immunity, if not yet
universally subscribed to, is at least now the way forward.
214
The impact of the Convention remains to be seen and will obviously depend on whether it
enters into force and, if so, how many states ratify it. If the Convention attracts widespread
participation, the primary effect will be that a significant number of States will
“be
applying
exactly the same rules
—
rather than substantially the same, or more or less similar, or
diametrically opposed rules
—
of State
immunity,”
215
which would result in improved legal
certainty and fewer inter-state disputes over State immunity.
