208Commentators view this convention as constituting “asignificant stage in the harmonization and articulation of the international law of State immunity.”209The Convention “appliesto the immunity of a State and its property from the jurisdiction of the courts of another State”210and aims to enhance legal certainty and “contributeto the codification and development of international law and the harmonization of practice in this area.”211The “State”is defined by the Convention in Article 2(1)(b)(iv) to include “representativesof 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.212Thus, 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 “withregard 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’Keefeand Christian J. Tams argue that the adoption of the Convention reflects a tectonic shift in States’opinio jurisfrom 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.214The 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 “beapplying exactly the same rules—rather than substantially the same, or more or less similar, or diametrically opposed rules—of State immunity,”215which would result in improved legal certainty and fewer inter-state disputes over State immunity.