Materi Kuliah Jurusan Hukum tentang Hukum Internasional Dunia Kuliah Jurisdiction II
Jurisdiction II
Immunity from Jurisdiction :
Exceptions to the exercise of territorial
jurisdiction :
• State Immunity
• Diplomatic Immunity
State Immunity
• Par in parem non habet imperium
• Traditionally immune extends to private acts
(jure gestionis)
• Absolute immunity >> the Parlement Belge
• Modified to cover State act only (jure imperii)
– The 1976 American Foreign Sovereign Immunities Act
– The 1926 Brussels Convention for the Unification of
Certain Rules relating to the Immunity of State Owned
Vessels >> govt. vessels engaged in commercial
subject as private vessels
Parlement Belge
•
•
•
Daring and Parlement Belge in Feb 14, 1878 were collided out off Dover.
Daring claimed against Parlement Belge over its damage for a
compensation
Parlement Belge was :
– A property of the King of Belgians
– At the time of collision it was controlled and employed by the King >> carrying
mails and considerable commercial goods and officered by Belgian officers and
flying Belgian flag
– Categorized as public ship of war under the convention signed between the
Queen of the UK and the King of Belgian
•
•
•
Consequently, it was exempted from the process of law and all private
claims
The power of the crown to make treaties with foreign states is indisputable
The immunity was available at CIL
Diplomatic Immunity :
• Representation of states
• Customary international law >> the
1961VC on Diplomatic Relations
• Foreign missions and personnels
• Mutual consent >> no right to diplomatic
relations
• To benefit the efficiency of the mission as
representing states
Diplomatic and Consular Staff Case
1980
• The US v. Iran
• Nov 4, 1970, demonstration hundreds of
armed individuals seized the US embassy
in Tehran
• Archives and documents were seized and
52 americans were taken as hostages
• ICJ Iranian Govt. attributable
• Diplomats enjoy free movement and travel
subject to laws regulating entry into certain
areas for national sec. reason
• Diplomats are inviolable and not liable to
any form of arrest or detention and an
obligation attached to the R.S. to treat
Diplomatic agents with respect and must
take all appropriate steps to prevent any
attack on his person, freedom and dignity
• Diplomatic agents enjoy immunity from
criminal, civil and administrative jurisdiction
• Art 31 (1) Exceptions :
– Any act relating to private immovable property
situated in the RS
– Act relating to succession
– Any professional or commercial activity
outside his official functions
• Art 31 (2) >> Not obliged to give evidence
as a witness
• Immunity is from jurisdiction not liability >>
may waive its immunity
Arrest Warrant Case ;
ICJ, 2000
• Congo v. Belgium
• Belgium issued an arrest warrant in absentia for
Y. Ndombasi
• War crimes >> racial hatred
• Not a Belgian national
• Not in the territory of Belgium when issued
• No Belgian victim
• Belgium failed to upheld the inviolability under
international law
• Belgium was ordered to cancel their arrest
warrant and stop its circulation.
Immunity from Jurisdiction :
Exceptions to the exercise of territorial
jurisdiction :
• State Immunity
• Diplomatic Immunity
State Immunity
• Par in parem non habet imperium
• Traditionally immune extends to private acts
(jure gestionis)
• Absolute immunity >> the Parlement Belge
• Modified to cover State act only (jure imperii)
– The 1976 American Foreign Sovereign Immunities Act
– The 1926 Brussels Convention for the Unification of
Certain Rules relating to the Immunity of State Owned
Vessels >> govt. vessels engaged in commercial
subject as private vessels
Parlement Belge
•
•
•
Daring and Parlement Belge in Feb 14, 1878 were collided out off Dover.
Daring claimed against Parlement Belge over its damage for a
compensation
Parlement Belge was :
– A property of the King of Belgians
– At the time of collision it was controlled and employed by the King >> carrying
mails and considerable commercial goods and officered by Belgian officers and
flying Belgian flag
– Categorized as public ship of war under the convention signed between the
Queen of the UK and the King of Belgian
•
•
•
Consequently, it was exempted from the process of law and all private
claims
The power of the crown to make treaties with foreign states is indisputable
The immunity was available at CIL
Diplomatic Immunity :
• Representation of states
• Customary international law >> the
1961VC on Diplomatic Relations
• Foreign missions and personnels
• Mutual consent >> no right to diplomatic
relations
• To benefit the efficiency of the mission as
representing states
Diplomatic and Consular Staff Case
1980
• The US v. Iran
• Nov 4, 1970, demonstration hundreds of
armed individuals seized the US embassy
in Tehran
• Archives and documents were seized and
52 americans were taken as hostages
• ICJ Iranian Govt. attributable
• Diplomats enjoy free movement and travel
subject to laws regulating entry into certain
areas for national sec. reason
• Diplomats are inviolable and not liable to
any form of arrest or detention and an
obligation attached to the R.S. to treat
Diplomatic agents with respect and must
take all appropriate steps to prevent any
attack on his person, freedom and dignity
• Diplomatic agents enjoy immunity from
criminal, civil and administrative jurisdiction
• Art 31 (1) Exceptions :
– Any act relating to private immovable property
situated in the RS
– Act relating to succession
– Any professional or commercial activity
outside his official functions
• Art 31 (2) >> Not obliged to give evidence
as a witness
• Immunity is from jurisdiction not liability >>
may waive its immunity
Arrest Warrant Case ;
ICJ, 2000
• Congo v. Belgium
• Belgium issued an arrest warrant in absentia for
Y. Ndombasi
• War crimes >> racial hatred
• Not a Belgian national
• Not in the territory of Belgium when issued
• No Belgian victim
• Belgium failed to upheld the inviolability under
international law
• Belgium was ordered to cancel their arrest
warrant and stop its circulation.