Immunities

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This chapter provides a general overview of the varying types of immunities owed under international law.

A. State-Derived Immunities

The immunities owed under international law to States and their officials, as well as diplomatic and other special missions, derive from a combination of principles in international law, including the sovereign equality of States, non-interference, and State sovereignty. Immunity refers to protection from the adjudicative and enforcement jurisdiction of another State and may apply in civil, criminal, and administrative legal proceedings. The reference to "sovereign" or "State" in the analogous terms "foreign sovereign immunity" or "foreign State immunity" refers to the notion that immunity is ultimately owed to the foreign State entity and from that basis, to certain classes of persons and entities embodying or representing the State, or carrying out State functions. At its core, State immunities derive from the principle par in parem non habet imperium, or the notion that one sovereign should not have jurisdiction over another on the grounds that the two are equals.

While foreign State immunity exists as a rule of international law, it is most often implemented at the municipal level, typically through courts, tribunals, and administrative decision-making bodies. At the same time, as a binding rule of international law, State immunity is more than merely the concept of comity or other prudential doctrines by which municipal courts decline to hear certain disputes as an exercise of their discretion. Immunities owed to States and State officials are instead owed as a matter of international law, meaning that the violation of such rules by national authorities accordingly constitutes a wrongful act under international law, triggering state responsibility. In this way, issues of State immunity are not limited to the domestic sphere but may give rise to inter-State disputes. At the same time, it is important to note that immunities issues may also arise within the international plane itself, for example where a State official faces prosecution before an international tribunal, as discussed later in this chapter.

Though reference to the practice of municipal courts and tribunals around the globe is of particular importance to understanding how immunities have been applied, it is worth recognizing that municipal courts are not the only relevant actors capable of impacting the implementation of the law of State immunity. Indeed, while there has been a strong shift in recent decades towards greater recognition of the role of the independent judiciary in deciding immunities issues, such immunity issues have until recently often fallen under the prerogative of the executive, which in many legal systems continues to play a role in the application of immunities today, though to greater or lesser degrees. At a practical level, nearly all branches of municipal government have the potential to implicate or affect immunities issues, whether through domestic legislation codifying specific foreign State immunity rules, decisions to prosecute or investigate officials, or decisions to recognize foreign governments, to name a few examples.

I. Foreign Sovereign Immunity

a. Sources

Historically, foreign sovereign immunity emerged from the notion that no sovereign, or the courts thereof, could sit in judgment of another sovereign, often meaning the sovereign him or herself. While the rule developed strong roots in domestic legal systems and has come to be recognized as a rule of customary international law, it has largely remained rooted in custom as opposed to treaty, in comparison some other forms of immunity discussed later in this chapter. Nonetheless, there have been some efforts towards codification. Early examples include the 1926 Brussels Convention for the Unification of Certain Rules relating to the Immunity of State-Owned Ships, which provided rules of liability and immunity for various vessels owned or operated by States, and the 1972 European Convention on State Immunity, neither of which have received wide ratification. More prominently, in 1978 the International Law Commission (ILC) began two and a half decades of work on the topic of the jurisdictional immunity of foreign sovereigns and their property. After a lengthy back and forth between the ILC and the UN Sixth Committee on the topic, the project ultimately resulted in the 2004 United Nations Convention on Jurisdictional Immunity, which has not yet entered into force on account of its limited ratification.

Despite the lack of codification at the international level, some States have adopted legislation codifying rules on foreign sovereign immunity at the domestic level. In the US, for example, the 1976 Foreign Sovereign Immunity Act (FSIA) sets out the immunities owed to foreign states or their agencies or instrumentalities in the absence of an applicable exception. These include immunities from suit (also referred to as "jurisdictional immunity") as well as immunities in relation to the execution of judgments against State property. In the UK, the 1978 State Immunity Act (SIA), similarly provides rules on immunity from jurisdiction and execution and, according to Fox and Webb, has served as a model for State immunity acts in a number of Commonwealth countries, including Singapore, Pakistan, South Africa, Canada, and Malawi.

For its part, the International Court of Justice has confirmed the customary nature of the rule of foreign sovereign immunity. In the Jurisdictional Immunities (Germany v. Italy) case, which involved a dispute over whether Italy had failed to respect the jurisdictional immunity to which Germany was entitled by allowing civil claims to be made against Germany in Italian courts for injuries caused during World War II, the Court considered the content of the customary rule of foreign sovereign immunity and its nature and scope. As part of its analysis, the Court looked to a variety of sources, including "the judgments of national courts faced with the question whether a foreign State is immune, the legislation of those States which have enacted statutes dealing with immunity," as well as "the claims to immunity advanced by States before foreign courts and the statements made by States" during the drafting and adoption of the UN Convention on Jurisdictional Immunity.

b. Nature and Application

One of the most important developments over the last century in relation to foreign sovereign immunity has been the evolution away from the "absolute" doctrine of foreign sovereign immunity and towards the "restrictive" doctrine. Under the latter approach, immunity is limited to public acts (jure imperii), and not private or commercial acts (jure gestionis). While the circumstances and nature of the foreign State's act were irrelevant under the former view, under the latter approach, the distinction between sovereign and non-sovereign acts is critical. Several different factors are said to have driven the evolution away from the absolute approach, including the expanding activities of States in the 20th century, particularly with respect to commercial matters, and the perception that the absolute approach to immunity gave rise to an unfair advantage for State-owned industries, State organs, and nationalized industries over private companies in the increasingly ocmpetitive global business arena. For purposes of foreign sovereign immunity, the State includes, per the UN Convention on Jurisdictional Immunity, all organs and constituent units as well as agencies, entities, and representatives of the State exercising sovereign authority. In deciding the nature of acts, the prevailing approach looks at the nature of the transactions as opposed to the purpose of them. While most States today adhere to the restrictive approach, a few, including the former Soviet Union, were reluctant to adopt it.

A number of ongoing debates relate to the nature and application of State immunity. At the most basic level, there is debate over what foreign sovereign immunity is, as a legal construct, and how to classify it. Fox & Webb suggest several models for understanding how foreign sovereign immunity applies. A first such model sees immunity as a "procedural plea, where a procedural/substantive distinction is used to restrict the scope of immunity and its impact on questions of substantive law." Under this view, immunity thus excludes questions as to the lawfulness of the act of a foreign State." This model draws support from the ICJ's statement in the Jurisdictional Immunities case that State immunity is of a procedural nature. It also follows the ECtHR's reasoning in Al Adsani, where the Court found that foreign sovereign immunity, even when applied to complaints raising complaints of a jus cogens character, did not amount to a violation of the right of access to court.

Another model understands foreign sovereign immunity as a substantive defense on the merits. [ ...]

While there remains debate over these models, especially as regards foreign State official immunity (discussed below), the ICJ has suggested that municipal courts must hear issues of State immunity before hearing the merits of the case. As the ICJ explained in Jurisdictional Immunities, a "national court is required to determine whether or not a foreign State is entitled to immunity as a matter of international law before it can hear the merits of the case brought before it and before the facts have been established." Reciprocity is not required; recognition also not required

The availability, scope, and application of additional exceptions to sovereign immunity has been subject to much debate. In the Jurisdictional Immunities case, claims brought by Germany against Italy concerning Italian courts' decision not to apply immunity in proceedings against Germany for damages caused during WWII; rejected tort exception to immunity based on deportation of enforced labour of Italian nationals. State immunity for acta jure imperii even where acts take place on the territory of the forum State and for violations of jus cogens (para. 77, 97-101); ensuring discussion about obligation to make reparation for breaches of international law, including IHL territorial tort exception-- Article 12 of the UN Convention

South Korea's Seoul Central District Court

Changi-Law fishing boat sunk in 1943 by German submarine near Rio de Janeiro. concluded instead that "wrongful acts committed by foreign States in violation of human rights do not enjoy immunity from jurisdiction"

case involving sexual enslavement of Korean women during Japan's colonial rule of the Korean peninsula before 1945

Brazilian Supreme Court -- Changri-La fishing boat sunk in 1943 by German submarine near Rio de Jeneiro brought by victims' relatives seeking compensation. "wrongful acts committed by foreign States in violation of human rights do not enjoy immunity from jurisdiction"; characterized the act as war crime; based in part on provision of Brazilian Constitution .. Ferrini Distomo cases ; Sentenza 238 of Italian Constitutional Court -- idea that constitutional considerations may prevail where there is a collision between immunity and "supreme principles of the constitutional order"

sexual enslavement of Korean women during Japan's colonial rule of the Korean Peninsula prior to 1945. Seoul Central District court ordered Japan to compensate twelve women. Japan refused to participate.

Supreme Court of Canada -- Kazemi Estate v. Islamic Republic of Iran. The court considered whether Canadians could sue damages resulting from acts of torture; held that there was no exception to foreign sovereign immunity for acts of torture under Canada's State Immunity Act.

Courts in South Korea and Brazil have found no immunity with respect to claims based on jus cogens committed in the territory of those States -- victims' right of access to court ; Italian Constitutional Court in Judgment No. 238

--issues remain as to scope of State agencies entitled to immunity and extent of acts considered non-immune on the basis of their commercial character

Its enactment marked a shift away from prior practice under which courts typically deferred to executive policy on immunity and applications to particular cases.

it does not as completely replace the common law with respect to the rules on foreign sovereign immunity.

c. Key Issues

tensions on account of clash between immunity and territorial jurisdiction of a State, sovereign right to enforce its laws.

recent examples of denial of immunity as a form of countermeasure? Fox & Webb suggest that the matter is "questionable" and note that the ICJ did not address the issue in Jurisdictional Immunities because Italy had maintained that it was justified in denying immunity to Germany on the basis of an alleged exception for grave human rights violations

waiver; consent

Mothers of Srebrenica

state-owned enterprises, piercing corporate veil

balance with human rights / ECHR cases Al Adsani v. UK -- state immunity and Article 6 ECHR -- ECtHR explained that state immunity would not be lifted for claims of torture

Possibility of implicit waiver -- question of the relevance of NY Convention, ICSID Convention etc. ; Reference to settling a dispute under domestic law usually not enough.

Tension with human rights and right to a remedy. -- jus cogens

Justice Against State Sponsors of Terrorism (JASTA)

Certain Iranian Assets --terrorism-related judgments and asset attachments ; Iran Threat Reduction and Syria Human Rights Act, immunity of state-owned companies and Bank Markazi "state-sponsors of terrorism" exception as designated by Secretary of State

TWAIL critique

pre-judgment attachment of assets

immunity from execution

A connection may be drawn between the and the rise of global business and capitalism. TWAIL scholars, in particular, point out the historical relationship between doctrines of jurisdiction, capitalism, and imperialism. In comparison to less-developed countries, wealthy and imperial States maintained the doctrine of absolute immunity when conducting extensive activities beyond their borders, but nonetheless made exception to the extent necessary to facilitate their participation in the increasingly competitive global commercial arena.

II. Foreign State Official Immunity

The rationales offered for foreign State official immunity overlap with those of foreign sovereign immunity, including the sovereign equality of States and non-intervention. Foreign official immunity has the added rationale that it enables officials to carry out their public functions without interference and thereby facilitates orderly international relations. Like foreign sovereign immunity, the international rules on foreign State official immunity have also not been codified by treaty.

There are two types of immunities owed to foreign State officials. The first, ratione personae or "status-based" immunity, is owed to heads of State, heads of government, and very other senior Government officials. The second, ratione materiae or "conduct-based" immunity attaches to acts which might be considered official State acts. Because ratione materiae immunity is based on the nature of particular acts, it may apply to a much broader range of actors, including all State officials and persons or entities which are not State officials but which acted on behalf of a State. Unlike ratione personae immunity which expires at the end of the official's term in office, ratione materiae immunity can be raised even after an official leaves office as immunity pertains to the conduct in question. These immunities apply in principle to both exercises of civil and criminal jurisdiction, though in some States the scope of immunity available in civil cases is narrower.

In the Arrest Warrant case, the ICJ described ... immunity from criminal jurisdiction of an incumbent minister of foreign affairs entitled to protection "throughout the duration of his or her office" in relation to "any act of authority of another State which would hinder him or her in the performance of his or her duties" ; “A Head of State enjoys in particular ‘full immunity from criminal jurisdiction and inviolability’ which protects him or her ‘against any act of authority of another State which would hinder him or her in the performance of his or her duties’.”

issue of warrant for the arrest of a serving minister of another State; crimes against humanity; ICJ held that Belgium breached international law. The ICJ sided with the DRC in finding that Belgium's issuance of an arrest warrant violated the immunity entitled to its foreign minister.

roika --heads of state, heads of government; other ministers: minister for foreign affairs; unclear whether any additional high-ranking officials are entitled See Arrest Warrant ("holders of high-ranking office in a State")

Obligation to Prosecute or Extradite (Belgium v. Senegal) -- exercise of jurisdiction over former head of state; torture; obligation to prosecute or extradite when accused of serious crimes; ICJ deemed Senegal responsible for failing to take action in relation to alleged crimes of torture.

--Debate over ILC Draft Article 7 -- growing efforts to limit immunity in cases involving grave violation of human rights. question of whether there is significant support for such exceptions. State may waive this immunity. --duty to waive

State practice is mixed. French court dismissed criminal charges against former U.S. President George Bush and Defense Secretary Donald Rumsfeld

Burkina Faso, Comoros, Mauritius, South Africa, and Spain provide for an exception to immunity ratione materiae for genocide, crimes against humanity, and war crimes A few European court cases support an exception for war crimes [check]. Debated in the Sixth Committee, with a significant number of States maintaining that Draft Article 7 did not reflect existing State practice, and States roughly split on their view on the favorableness of the Article.

In the Arrest Warrant case,  : "Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior to or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity."

German court recently declared that State practice affirmed the exception -- see Clauss Kress

--Djubouti v. France -- immunity from criminal jurisdiction of a visiting head of State; witness summons, notice to host State as condition of immunity; less clear about whether two other officials were entitled to immunity, namely the procureur de la Republique and the head of the national security

importance of executive in recognition -- Noriega case; lesser role for executive opinion in relation to conduct-based immunity

In the U.S., courts are divided over who bears the burden of proof in immunity cases. In contrast to the FSIA, under which the defendant bears the burden, some courts have held to the contrary, that plaintiffs bear the burden of proving that a defendant is not entitled to immunity.

ongoing debate as to the extent to which immunity ratione materiae follows the restrictive doctrine of foreign sovereign immunity

question of whether conduct-based immunity is an affirmative defense or a question of subject matter jurisdiction

Arrest Warrant-- jus cogens not enough to overcome immunity ratione persone (paras 56-58).

Pinochet case. -- UK allowed extradition of former Chilean President -- exception to ratione materiae immunity for the international crime of torture

Jones v. Ministry of Interior of the Kingdom of Saudi Arabia-- allowed civil claims for torture to proceed against the Minister of Interior but not the State itself

Before int'l tribunals -- Arrest Warrant -- serving or former minister or head of State "may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction.

The Charter of the International Military Tribunal at Nuremberg, the ICTY and ICTR Statutes, and the Statute for the Special Court for Sierra Leone provide that international criminal responsibility is not barred by virtue of any official status, meaning that immunity arising from a defendant's official capacity is not a defense.

Rome Statute Article 27(2) -- provides that immunities which may attach to the official capacity of a person shall not bar the ICC from exercising jurisdiction over such a person.

The issue remains unresolved, in part because ICTY & ICTR set up under Chapter VII. SCSL - Charles Taylor

Darfur (Bashir) and Libya (Gaddafi) cases at the ICC -- Security Council Chapter VII

While the Geneva Conventions do not mention immunity, the grave breaches regime establishes aut dedere aut iudicare obligations.

Akande -- not clear there is a rule providing that immunities do not apply before international courts and tribunals. See Dapo Akande, "International Law Immunities and the International Criminal Court," 98 AJIL 407 (2004).

Charles Taylor case. --confirmed even a head of State

-- Role of UN Security Council in waiving immunity

--Convention on Special Missions (1985), pertaining to special missions sent by one State to another with the latter's consent. Persons on special missions are inviolable, not liable to arrest or detention, and immune from criminal jurisdiction

--recent discussion about inapplicability of immunity in the case of wars of aggression

Question of immunity of MBS

“the immunities enjoyed under international law . . . do not represent a bar to criminal prosecution in certain circumstances . . . . [A]n incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction.”

States can waive immunity Republic of the Philippines v. Marcos -- Marcoses not entitled to immunity as recognition given to renovation by Philippines

In the U.S., Samantar v. Yousef explained that foreign officials are not entitled to immunity under the FSIA, but instead under the common law. Questions have arisen over the role of the U.S. State Department in determining the rules and their application.

For conduct-based immunity, there is debate over the relationship between conduct attributable to a State and acts performed in an "official capacity" and accordingly entitled to immunity. The ILC adopted Draft Article 7 in 2017 as part of its owrk on "Immunity of State Officials from Foreign Criminal Jurisdiction."

Appeals Chamber Judgment - Al-Bashir case Jordan Referral re Al-Bashir Appeal

In recent years, an important debate in the field of international law has centered on the question of the availability of immunities before international courts and tribunals. The traditional view is that official capacity of a defendant is irrelevant to his prosecution for international crimes. As provided for in Article 27(1) of the Rome Statute, the status of an individual as a head of State of government, member of government, or other elected person "shall in no case exempt a person from criminal responsibility" under the Rome Statute. Further, as indicated in Article 27(2), "[I]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person." Such rules are similarly found in [ ] Despite these provisions, considerable controversy has arisen over the issue of whether high-ranking officials of non-State parties to the Rome Statute are nonetheless entitled to immunities owed to such persons in the territory of foreign States, as discussed above.

----TWAIL perspective on Al Bashir

B. Diplomatic, Consular, and Related Immunities

Diplomatic and consular immunities can also be understood as deriving from the concepts of State sovereignty and the sovereign equality of States. Unlike sovereign immunity itself, and perhaps more in line with the immunity of State officials, the emphasis of diplomatic and related immunities is less on the dignity of the sovereign and more on the need to ensure the effective functioning of diplomatic missions, which are by nature tasked with operating outside of their home State territory. These immunities are grounded in a number of sources, including, most importantly, the Vienna Convention on Diplomatic Relations (1961) and the Vienna Convention on Consular Relations (1963).

inviolability -- Article 22 VCDR -- (1) premises immune from search, attachment, etc.

--Service of Legal process

(2) duty of receiving State to "take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity" Diplomatic and Consular Staff in Tehran case

Obligation to "respect and protect" mission even if diplomatic relations cut

Archives of diplomatic mission inviolable wherever and whenever they are located

Diplomatic agents and private residence and property are inviolable.

Diplomatic agent also immune from criminal jurisdiction of the receiving State

--immunity from civil jurisdiction, but narrow exceptions-- e.g. real property; commercial activity

--Recent UK Supreme Court case on modern slavery and "commercial activity"

waiver; receiving State can declare individual persona non grata

former diplomats entitled to conduct-based immunity

A diplomat may be entitled to immunity even where a State itself would not enjoy immunity under the restrictive view. At the same time, diplomatic immunity is narrower than immunity ratione materiae to which all State officials are entitled as it pertains only to the jurisdiction of the receiving State.

Tehran Hostages: "no more fundamental prerequisite for the conduct of relations between States than the inviolability of diplomatic envoys and embassies." (para. 91)

Debate over whether self-contained regime

in contrast to heads of State, diplomatic agents possess privileges and immunities only in receiving State, and are only entitled to immunity in other States when transiting to and from post, not when traveling for private purposes.

conduct-based immunity VCCR Art. 43(1) -- "acts performed in the exercise of consular functions"

Executive's certification of individual's status as a diplomat is typically conclusive of the matter, similar to with recognition of head-of-State immunity

Question of who has the authority to determine whether an act constitutes an "official act" for immunity purposes-- courts, executive, combination.

Special Missions immunity -- status-based immunity

UN Convention on Special Missions. Djibouti v. France -- para. 194 - high-ranking officials

Consent is required

The Convention has not been widely ratified ; privileges and immunities for high-level special missions are nonetheless broadly recognized though the exact status and extent of immunity under custom is not clear

While the U.S. is not a party, courts have deferred to the executive's suggestion of immunity

In comparison with other State officials, diplomats are expected to reside and carry out work abroad, which may increase their vulnerability to prosecution

C. Privileges & Immunities of International Organizations

International organizations (IOs) are also afforded privileges and immunities under a variety of legal instruments. Such immunities are granted to the extent necessary to enable IOs to effectively exercise their functions. International organization immunities ensure the protection of IO headquarters, property, assets, and personnel carrying out the work of an IO. The purpose of such immunities is to enable IOs to carry out their work unimpeded by the unilateral influence of member States, including those Member States in which the IO physically operates or carries out work.

I. Sources

Unlike State-derived immunities, the privileges and immunities of international organizations are principally rooted in treaties, including both multilateral and bilateral instruments. Beginning with the United Nations (UN), Article 105(1) of the UN Charter provides that the UN "shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the exercise of its functions and the fulfillment of its purposes." Likewise, under Article 105(2), the Charter further provides that representatives of UN Member States and UN officials shall enjoy "such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization." Such privileges privileges are thus typically understood to be "functional" in nature as they are ultimately held by the IO, or in this case, the UN itself, and granted only to the extent necessary for "fulfilment" of the the organization's "purposes" and the "functions."

In order to clarify the details of this grant of privileges and immunities, Article 105(3) authorized the General Assembly to make recommendations and propose conventions further specifying the nature and extent of UN privileges and immunities. Two such conventions have been widely adopted: the General Convention on the Privileges and Immunities of the United Nations (1946), and the Convention on the Privileges and Immunities of the Specialized Agencies (1947). Included within these are provisions providing immunities for State representatives of member States participating in the work of the UN, experts on mission, and the personnel of the organization, as well as various provisions on currency exchange, taxation, entrance, and freedom of communication.

International organization immunities are also found in the constitutive instruments of international organizations, including the constitutions of UN specialized agencies. For example, under [] . Some multilateral agreements are also provide IOs with immunity, including the Agreement on Privileges and Immunities of the IAEA and the Agreement on Privileges and Immunities of the Organization of American States. Other examples include the Rome Statute, which provides privileges and immunities to those working at the Court, as well as the UN Convention on the Law of the Sea, which provides privileges and immunities for the International Tribunal for the Law of the Sea. International organizations may also work out host and headquarters agreements with the States in which they are situated supplementing other sources of immunities to which they may be entitled. In this regard, prominent examples include the U.S.-UN Headquarters Agreement and the Switzerland-UN Headquarters Agreement.

Apart from treaties, domestic legislation in some States may give effect to various IO immunities, such as for example the U.S. International Organizations Immunities Act (1945), and the U.K. International Organizations Act (1968). It remains an ongoing question whether any IO immunities can be sourced in custom..

II. Nature and Application

A number of international organizations enjoy a broad immunities, typically stated as immunity from "every form of legal process," though some organizations, such as the World Bank enjoy more restricted immunity on account of their more routine transacting with private parties. --Experts on Mission (quasi-diplomatic immunity) Mazilu and Cumaraswamy

In terms of operation, In relation to the practical application of immunities, the role of the UN Secretariat of

--role of the UN Secretary General in determining whether an individual has acted within his capacity within the IO; duty to waive

--functional vs. absolute Jam v. International Finance Corporation case and commercial activity exception

With respect to individuals, IO immunities include both status and conduct-based immunities

-- restrictive doctrine? Most academics maintaining that the doctrine of restrictive immunity developed in relation to States is not simply transferrable to IOs. With respect to State practice, Italy and the U.S. are understood to serve as outliers. IOIA "shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments"

--similar to diplomatic immunities, IOs enjoy inviolability of premises and archives

--concerns for abuse

Italy also followed the restrictive approach prior to ratifying the Specialized Agencies Convention

Depending on the exact nature of the immunities in question, and the domestic legal system involved, States may need to intervene to assert immunities.. municipal courts have an obligation to decide with the question of immunity from legal process as a preliminary issue "expeditiously ex limine litis". Cumaraswamy --Applicability of the Obligation to Arbitrate under Section 21 of the UN Headquarters Agreement

The ILC's work on 'Representation of States in their relations with international organizations’ (1963–75) was not ultimately successful and eventually was dropped. In particular, the Vienna Convention on the Representation of States in their Relations with International Organizations was not well received and has not entered into force.

Questions of waiver in the context of contracts and arbitration -- some constitutive instruments provide this waiver. Mendaro case in D.C

--issue of disputes between employees and the IO; UN Dispute Tribunal and UN AppealsTribunal ; ILO Administrative Tribunal

Monism/dualism --- PAHO v. Rodriguez (D.C. Cir. 2022) -- rejected the Pan-American Health Organization's argument that the immunities found in its constitutive instrument and to which it was entitled under the UN Charter were self-executing. Potential implications for other Specialized Agencies in the U.S., non-UN related IOs, and special entities like the IAEA. By comparison, the U.S. Courts maintain that the General Convention on Privileges and Immunities is self-executing.

ECHR -- Waite and Kennedy -- availability of alternative avenues of redress

Dispute settlement -- advisory opinion which shall be accepted as decisive. Some question about to whom obligations are owed -- to the UN or IO itself, or to other parties, or both.

Question of immunities owed by States not party to relevant instrument / whether or not members of the IO.

Conferences, peacekeeping -- controversy over abuse in peacekeeping context.

recognition and immunity

TWAIL critique of envoy immunity; Reparations case ; notion of envoys; more recent critiques of peacekeeping abuses and immunities for forces like UN Transitional Administration in East Timor given full governance authorities but nonetheless provided immunity.

D. Other Immunities Issues

A few additional sources of immunities merit attention. The first is combatant immunity, which refers to the customary rule of international humanitarian law (IHL) barring the prosecution of combatants for merely participating in hostilities, which has typically been applied in situations of international (as opposed to non-international) armed conflict. This rule operates to shield combatants from prosecution for offenses permitted by IHL, such as murder of enemy forces, but does not apply to shield a combatant from accountability for war crimes. In this way, combatant immunity is in some sense conditional on compliance with the rules of IHL in contrast to more traditional rules on the immunity of foreign State officials, as discussed above, which often do not depend on the legality of the underlying conduct in question.

The approach of the Dutch Prosecution in the recent MH17 trial, whereby the prosecution chose not to charge the individuals allegedly involved in the shooting down of Malaysia Airlines Flight MH17 over Ukraine in July 2014 with war crimes, provides an interesting application of the concept. In that case, the Dutch Prosecution ultimately opted only to charge the defendants with domestic crimes (for example, intentionally causing an aircraft to crash and murder), and not in fact war crimes, taking the position that the separatist forces operating in Ukraine are not entitled to combatant immunity, despite their connections with the Russian government. The effect of this position is to shift the burden of proving such connections and entitlement to immunity to the defendants.

Finally, it is worth noting certain other treaties not covered in this chapter which also serve as a source of immunities, albeit less prominently. Both the UN Convention on the Law of the Sea and the Convention on the High Seas provide for immunities for warships or State-owned or operated vessels used for government purposes, These immunities are perhaps not dissimilar from immunities provided under the Chicago Convention on International Civil Aviation, w

Further Readings

• Source I
• Source II