208 Commentators view this convention as constituting a significant stage in

208 commentators view this convention as constituting

This preview shows page 29 - 31 out of 53 pages.

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.
Image of page 29
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.
Image of page 30
Image of page 31

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture