Abstract
The International Law Commission (ILC) explains in its 2017 Commentary to Draft Article 7 of its Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction that the draft articles are “intended to apply within an international legal order whose unity and systemic nature cannot be ignored.” The quest for coherence is admirable. It enhances legal certainty and predictability in an evolving area of the law. But a systemic approach can also go too far—stretching analogies and ignoring differences, seeing a trend where there is none. The trajectory of the ILC's work on Draft Article 7 illustrates certain dangers.
Highlights
The International Law Commission (ILC) explains in its 2017 Commentary to Draft Article 7 of its Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction that the draft articles are “intended to apply within an international legal order whose unity and systemic nature cannot be ignored.”[1]
The Secretariat Memorandum prepared at the outset of the ILC’s work on the draft articles notes that “the various immunities have all followed a varied, albeit interconnected historical trajectory.”[2]. State immunity, diplomatic immunity, and immunity ratione materiae all derive from the principle of sovereign equality and apply by reference to some kind of division between acts of a private and public nature, whether sovereign versus commercial or official versus personal
Important differences exist between diplomatic immunity and immunity ratione materiae
Summary
The International Law Commission (ILC) explains in its 2017 Commentary to Draft Article 7 of its Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction that the draft articles are “intended to apply within an international legal order whose unity and systemic nature cannot be ignored.”[1]. The Secretariat Memorandum prepared at the outset of the ILC’s work on the draft articles notes that “the various immunities have all followed a varied, albeit interconnected historical trajectory.”[2] State immunity, diplomatic immunity, and immunity ratione materiae all derive from the principle of sovereign equality and apply by reference to some kind of division between acts of a private and public nature, whether sovereign versus commercial or official versus personal. They are immunities that can only be waived by the state. See id. at para. 26 where the Special Rapporteur observes that UNCSI is “in principle less relevant . . . since it refers to immunity from jurisdiction of the State.”
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