Research Handbook on Jurisdiction and Immunities in International Law
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Research Handbook on Jurisdiction and Immunities in International Law

Edited by Alexander Orakhelashvili

This Research Handbook provides a comprehensive and up-to-date analysis of the international law of jurisdiction and immunities, illustrating those aspects in which the law of jurisdiction and law of immunities are mutually interdependent, as well as shedding light on the implications of that interdependence. With authoritative contributions from recognized experts, it offers an impartial perspective on the applicable international law, independent from any positions held in governmental or other institutional circles.
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Chapter 6: Shared foundations and conceptual differentiation in immunities from jurisdiction

J. Craig Barker


The issue of immunities from jurisdiction is one of the most controversial in contemporary international law. The reasons for this are many and varied. They include, for example, the increasing expansion of the extra-territorial reach of domestic civil and criminal jurisdiction, as well as advances in new and expanding areas of international law, such as human rights and international criminal law, in the context of which the law relating to immunities from jurisdiction is increasingly challenged. Unfortunately, much of the current controversy concerning immunities from jurisdiction derives from misunderstandings, accidental or deliberate, about the nature and purpose of immunities from jurisdiction. There is a clear tendency, particularly in the academic literature and in some judicial dicta, to conflate the various forms of immunity into one single concept, and then, in some cases, to denigrate the notion of immunity as out-dated, state-centric and distorted. Some of this criticism of the concept of immunities is undoubtedly valid and worthy of further analysis and critique. The idea that immunities from jurisdiction, which are, by their very nature positivist constructs, are themselves somehow immune from challenge should be rejected. Nevertheless, if the challenge is merely an attempt to sweep aside all forms of immunity from jurisdiction in pursuit of a ‘greater’ agenda of human rights and human dignity, then that process itself might have some very considerable and problematic unintended consequences.

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