Research Handbooks in International Law series
Edited by Alexander Orakhelashvili
Chapter 5: State immunity from jurisdiction between law, comity and ideology
The immunity of foreign states and their officials from the national jurisdiction is a matter closely connected to the matter of state jurisdiction. In empirical terms, any grant of immunity involves declining to exercise national jurisdiction, while any denial of immunity results in the assertion of jurisdiction. However, this purely empirical focus is liable to obscure the more fundamental distinction between jurisdiction and immunities, in the sense that the issue of jurisdiction is antecedent to that of immunities. As the International Court of Justice specified in the Arrest Warrant case, ‘it is only where a State has jurisdiction under international law in relation to a particular matter that there can be any question of immunities in regard to the exercise of that jurisdiction’. Sometimes such terminology is used confusingly. In Littrell, focusing on state immunity, Lord Hoffmann suggested that: If the case had concerned an assault within the [UK-stationed] base by one American serviceman on another, I think that under customary international law the English courts would have declined both civil and criminal jurisdiction. While semantically ‘declining jurisdiction’ sounds as if it encompassed both jurisdictional and immunity matters, normatively speaking the two matters are different.
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