Jurisdiction and Immunities

1. FRAME — Jurisdiction and immunity

Jurisdiction is the legal competence of a state to make, apply and enforce rules. It is trifurcated: prescriptive (legislative) — power to legislate over conduct; adjudicative — power of courts to hear cases; enforcement — power to take coercive action. The three are not coextensive: a state may prescribe over a national's fraud abroad without enforcement competence to seize that national on foreign soil.

Immunity, by contrast, is a procedural bar on the exercise of jurisdiction. The forum may have adjudicative competence and still be required to abstain because the defendant — a foreign state, head of state, foreign minister, diplomat — is shielded by an immunity rule. The procedural framing is load-bearing: it is what allows the ICJ in Germany v Italy (2012) to hold that immunity does not "conflict" with substantive jus cogens prohibitions because the two "address different matters" (para 93). Whether that move is sound is the live question — and the place to fight it is Topic 07.

2. EXPLAIN — bases of prescriptive jurisdiction

• Territoriality — the default. Subjective covers acts commenced on territory; objective covers acts whose effects are felt there. SS Lotus (PCIJ 1927); Trail Smelter arbitration (1941) for cross-border environmental harm.
• Nationality (active personality) — regulation of nationals abroad. Joyce v DPP [1946] AC 347 (HL) sustained Lord Haw-Haw's treason conviction on allegiance owed by a passport-holder; US v Yunis (DC Cir 1991).
• Passive personality — based on the victim's nationality. Historically controversial: Cutting Case (US/Mexico 1886); Lotus engaged with it cautiously. Modern terrorism conventions accept it.
• Protective principle — vital state interests (currency, security, immigration). Eichmann (1961) invoked it alongside universal jurisdiction; Joyce reads protectively too.
• Universal jurisdiction — based on the offence's nature; no link required. Piracy (UNCLOS 1982 Art 105) is the paradigm; post-1945 covers war crimes, crimes against humanity, genocide, apartheid, torture (Torture Convention 1984 Art 5(2): aut dedere aut judicare). Eichmann is the high-water mark; Pinochet (No 3) [2000] 1 AC 147 confirmed UK universal jurisdiction over torture; Yerodia tested Belgium's expansive statute.

The Lotus presumption — restrictions on state independence "cannot be presumed" — frames jurisdiction permissively. Modern qualifications (reasonableness, treaty regimes, human-rights limits) blunt the default but do not displace it.

3. State immunity — from absolute to restrictive

Four overlapping rationales: sovereign equality (par in parem non habet imperium); non-intervention; comity (Al-Adsani v UK (2001) 34 EHRR 273 at para 54); and dignity. None alone fixes the scope; together they explain why a procedural shield remains and why courts have been willing to narrow it.

The arc is the shift from absolute to restrictive immunity, driven by the post-war rise of the trading state. The English shift came in three steps: The Philippine Admiral [1977] AC 373 (PC); Trendtex [1977] QB 529 (CA) — Lord Denning MR embracing restrictive immunity as custom and departing from precedent ("international law knows no rule of stare decisis"); and I Congreso del Partido [1983] 1 AC 244 (HL) entrenching the test. The apparatus is the act/transaction distinction: acta jure imperii (sovereign — immune) v acta jure gestionis (private-style — not immune). I Congreso: classify by character, not purpose.

The UK State Immunity Act 1978 codifies the restrictive doctrine: s 1(1) general immunity; s 3 commercial-transactions exception; s 5 territorial tort exception (death, personal injury, damage to tangible property by act or omission in the UK); ss 4, 6–10 cover employment, ownership, IP, ships and arbitration. The UN Convention on Jurisdictional Immunities of States and their Property 2004 (not yet in force; widely treated as customary evidence) codifies the same model: Art 11 employment contracts, Art 12 territorial tort exception. No human-rights exception.

The ICJ's judgment in Germany v Italy, ICJ Rep 2012 p 99, is the contemporary touchstone. Italian courts had allowed civil claims by Italian victims of Wehrmacht atrocities in 1943–45 (deportation, forced labour, massacres) to proceed against Germany — notoriously in Cassation's Ferrini (2004), which denied immunity on jus cogens and territorial-tort grounds. The ICJ held: (i) custom accords immunity for acta jure imperii including armed-forces conduct in armed conflict; (ii) the territorial tort exception does not extend to such acts; (iii) no jus cogens exception, because substantive and procedural rules "address different matters" (paras 92–97). The Italian Constitutional Court's Sentenza 238/2014 then refused domestic effect — the canonical clash between international and constitutional orders. By contrast, Letelier v Chile (DDC 1980) — the Pinochet-era assassination in Washington DC — shows the tort exception fitting comfortably outside armed conflict.

4. Key cases and instruments

5. Diplomatic immunity (briefly)

Diplomatic immunity is the most absolute of the immunities; the VCDR 1961 codifies a millennia-old practice on a functional rationale. Tehran Hostages (US v Iran), ICJ Rep 1980 p 3, confirmed inviolability runs independently of any political grievance: the seizure of the US embassy and Iran's failure to act breached Articles 22, 24, 25, 27 and 29. The Libyan People's Bureau Incident (London, April 1984) — a shot from inside the Bureau killed PC Yvonne Fletcher — illustrates the rule from the other side: the UK could not enter the premises (Art 22); personnel were expelled, not arrested. The political price is the accepted cost of the system.

6. Individual official immunities — a sketch

Customary law recognises two distinct immunities, mapped onto the actor v the act.

• Ratione personae — personal immunity attaching by virtue of office (heads of state, heads of government, FMs, accredited diplomats). Full (official and private acts) and absolute, but only while in office. Yerodia (ICJ 2002) is the modern authority for FMs.
• Ratione materiae — functional immunity attaching to official acts. Survives end of office because it shields the state's acts, not the individual. Scope contested for international crimes — Topic 07. Pinochet (No 3): torture cannot be an "official function".

The international-court counter-current runs through Rome Statute Art 27: official capacity is no bar to ICC jurisdiction. The ICC Appeals Chamber in Bashir (Jordan Referral) (6 May 2019) held there is "neither State practice nor opinio juris" supporting head-of-state immunity vis-à-vis an international court, even for non-States Parties. The October 2024 Putin/Mongolia finding (ICC-01/22) extended the logic to Mongolia's failure to arrest Putin during a state visit. Bashir and Putin/Mongolia sit awkwardly with Yerodia; the reconciliation — vertical v horizontal immunity, treaty obligation v customary right — is contested and live.

7. CRITIQUE — five fault lines

1. The act/transaction line is unstable. The same conduct can be classified jure imperii or jure gestionis depending on level of abstraction. I Congreso manages this pragmatically; it does not solve it.
2. The tort exception is asymmetric. SIA s 5 and Art 12 cover acts on forum territory only. Letelier fitted; Italian Wehrmacht victims did not, because Germany v Italy (paras 64–79) confined the rule to non-armed-conflict contexts.
3. The procedural/substantive divide is too clean. The ICJ's "address different matters" holding empties the substantive prohibition of remedy. Bianchi's critique has traction even where it has not won the day.
4. The constitutional clash. Sentenza 238/2014 dramatises the tension between international immunity rules and forum-state constitutional rights of access to a court.
5. Vertical v horizontal asymmetry. Art 27 / Bashir / Putin treats incumbent heads of state as not-immune before an international tribunal; Yerodia treats them as fully immune before a foreign national one. Defensible on ICC institutional logic; uneasy on customary-law inheritance.

8. Academic voices

"State immunity is a procedural rule going to jurisdiction of a national court. It does not go to substantive law; it does not contradict a prohibition contained in a jus cogens norm but merely diverts any breach of it to a different method of settlement."

— Hazel Fox, The Law of State Immunity (1st ed OUP 2002) p 525, quoted by Lord Bingham in Jones v Saudi Arabia [2006] UKHL 26 at para 24; see Fox & Webb, The Law of State Immunity (3rd ed OUP 2013).

The procedural-substantive divide in Germany v Italy is too neat: a procedural shield that extinguishes all remedies for the gravest breaches is not, in practice, neutral as to substance. Denying immunity to violators of human rights does not convert a procedural rule into a substantive one — it recognises that the architecture of accountability is structural.

— Andrea Bianchi, paraphrasing "Denying State Immunity to Violators of Human Rights" (1994) 46 Austrian J Pub & Int'l L 195.

The immunity of state officials is a condition of the rule of law in a horizontal legal order: without it, one state's courts could routinely sit in judgment on another's, collapsing the equality of states into the dominance of whichever forum can issue the writ. Specifying when that horizontal logic must yield is the challenge — and the answer cannot be whenever a forum court thinks the conduct grave enough.

— Rosanne van Alebeek, paraphrasing The Immunity of States and their Officials in International Criminal Law and International Human Rights Law (OUP 2008).

Universal jurisdiction is best understood as a permission, not a duty: customary law allows any state to prosecute the gravest international crimes regardless of link, but the conditions for exercising that permission are practical (presence, evidence) and political (capacity, comity), not merely doctrinal.

— Roger O'Keefe, paraphrasing International Criminal Law (OUP 2015) ch 2.

"International law knows no rule of stare decisis" — English common law of state immunity tracks customary international law as it stands today.

— Lord Denning MR, Trendtex Trading Corp v Central Bank of Nigeria [1977] QB 529 (CA).

9. Common pitfalls

10. Exam answer skeleton

1. FRAME. Prescriptive v adjudicative v enforcement; jurisdiction v immunity. Answer-line: restrictive-immunity model anchored in jure imperii v jure gestionis; universal jurisdiction as accountability counterweight; the procedural/substantive divide creates remedy gaps Germany v Italy dramatises.
2. EXPLAIN. Five bases — Lotus, Joyce, Eichmann, UNCLOS Art 105, Torture Convention Art 5. Historical shift via Trendtex, I Congreso; SIA 1978 ss 1, 3, 5; UN Convention 2004 Arts 11, 12; Germany v Italy confirms restrictive immunity.
3. CRITIQUE. Five fault lines: act/transaction line; asymmetric tort exception; procedural/substantive divide (Bianchi); constitutional clash (Sentenza 238/2014); vertical v horizontal (Art 27 / Bashir / Putin v Yerodia).
4. EVALUATE. Fox & Webb's procedural defence in tension with Bianchi's structural critique; van Alebeek as principled middle.
5. CONCLUDE. Take a position. Restrictive immunity fits ordinary state activity; unresolved cases live at the margin — armed-conflict atrocities, jus cogens violations, the head-of-state question.

11. Checklist

• Distinguished prescriptive, adjudicative and enforcement jurisdiction.
• Named five bases with at least one authority each.
• Stated the four immunity rationales; cited Al-Adsani para 54 for comity.
• Traced the absolute-to-restrictive shift via The Philippine Admiral, Trendtex, I Congreso.
• Cited SIA 1978 (ss 1, 3, 5) and UN Convention 2004 (Arts 11, 12) by number.
• Cited Germany v Italy and the procedural/substantive divide; flagged Sentenza 238/2014.
• Distinguished ratione personae from ratione materiae; Yerodia para 60.
• Sketched diplomatic immunity via VCDR Arts 22, 27, 29, 31 and Tehran Hostages.
• Flagged Art 27 / Bashir / Putin/Mongolia as international-court counter-current.
• Engaged Fox & Webb, Bianchi, van Alebeek, O'Keefe; took a position.
• Left torture-specific analysis to Topic 07.