Immunities in the Age of Global Constitutionalism

Has the international law of immunities undergone modifications which might be interpreted as a manifestation of global constitutionalism? Global constitutionalism claims that the principles of the rule of law, a separation of powers, fundamental rights protection, democracy, and solidarity, together with institutions and mechanisms securing and implementing these principles do play a role and should play a role also in the international legal order.

 

The legal concept of immunity is a core element of the international legal system, but it is at the same time co-shaped by municipal law. It is to that extent a concept of multilevel governance. Immunity basically means to be exempt from the jurisdiction of a national court, and from measures of enforcement and execution by the organs of states. Immunity is granted by international law to states, state officials including diplomats, and international organizations. With regard to these different actors, the rationales of immunity differ, and concomitantly, the scope and the possible exceptions to immunity vary.

Although these immunities are in principle firmly anchored in international law, their precise legal implications are often unclear. The reason is the diversity of domestic case-law as just mentioned, the diversity of the practice of other national branches of government, the constant interaction between international and domestic law which is needed to apply the law of immunity, and the lack of a comprehensive international codification. Overall, the case law of national and international courts and the work of the International Law Commission continuously interact, and make this field of international law dynamic, complex, and partly inconsistent.

The research project takes up a number of new trends and challenges in this highly intriguing legal field and notably seeks to assess those within the framework of global constitutionalism and multilevel governance. Suggestions to restrict the different types of immunity correspond to the ‘constitutionalist’ agenda of international law of strengthening the international rule of law and protecting the most fundamental rights of individuals more effectively. However, the ‘conservative’ tendencies regarding the immunities of states and of international organizations also seek to safeguard fundamental principles of the international legal order.

 

The study of the law of immunities must take into account the perspective of practical lawyers applying and shaping the concept and its contours through their daily work. The justification of such an inductive and comparative approach is that the law of immunity has been formed by the decisions of municipal courts, and has through that case-law acquired the status of customary international law. However, that dispersed mode of law formation has contributed to the complexity, incoherence and legal uncertainty of the issue. One reason is that the different national courts are subject to diverging national procedural laws which influence their approach to the issue of immunity. Moreover, the courts of different states are not bound by the decisions of another state. Although courts constantly refer to foreign cases to an extent that judicial cross-fertilization is a pervasive feature of the law of immunity, the creation of a coherent corpus of international law has been hampered by the national idiosyncrasies of each case. In result, the law of immunity can only be fully understood through the analysis of state practice.

 

Against this background, the most important and most controversial aspects of the immunity of states, of international organizations, and of public officials need to be analysed (Part One of the book). The 2010 judgment of the International Court of Justice has made an important contribution to the law of state immunity, but has been heavily criticised for its traditional approach to the matter. Analyses of specific aspects of that judgment reveal a wide gamut of viewpoints on the merits and flaws of the judgment (Part Two).

The entire field of immunity is in a flux, last but not least due to economic and technical developments and due to changing value judgments. The adoption of the UN Convention on State Immunity in 2004 is a milestone, but this convention contains numerous controversial provisions which do not necessarily reflect customary law and raise difficult questions of interpretation. Also, the much increasing transnational economic activity of states, waves of privatisation and hybrid public-private undertakings suggest reconsidering the traditional line drawn between between acta iure gestionis and acta iure imperii. This issue is tackled in Part Three of the book.

Importantly, immunities seem to stand in tension to another, newer core value of international law: the effective protection of human rights and the prosecution of international crimes. The strengthened international legal status of the individual presses for the lifting of immunity. The tension between the legitimate demand to hold states accountable and to punish their officials for crimes committed against individuals on the one hand, and the importance of safeguarding peaceful intercourse and cooperation among sovereign states requires a balancing of competing principles. The resulting trade-off depends on the relative value ascribed to the antagonist legal goods, and has in recent times shifted in favour of the direction of increased accountability. Part Four of the book deals with this theme.

International organizations which enjoy immunity from domestic jurisdiction have expanded and intensified their activities and relative powers. This relative gain in importance and powers on the one hand calls for an effective protection of the organizations’ activities and of their independence notably from the host states, a protection which can be realized through the conferral of immunities. On the other hand, the intensified activity increases the dangers of an abuse of powers which in turn calls for better accountability mechanisms. Immunities stand in the way of holding organizations accountable. It is therefore no wonder that the so-called ‘absolute’ immunity of international organizations is being challenged. This topic is dealt with in Part Five of the book.