Edited by Alexander Orakhelashvili
Chapter 6: Shared foundations and conceptual differentiation in immunities from jurisdiction
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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