J. Craig Barker

II. State Immunity, Diplomatic Immunity and Act of State: A Triple Protection Against Legal Action?

The relationship between State immunity and diplomatic immunity has always been a rather complex one. The two concepts undoubtedly have a common juridical background in the form of the concepts of sovereignty, independence and dignity.1 On the other hand, recent developments in both fields have seen a move towards a more functional-based approach. Thus, in relation to diplomatic immunity, the dominant theoretical basis is that of functional necessity.2 As regards State immunity, recent developments in both international law3 and, more particularly, in UK law4, from absolute to restrictive State immunity, have resulted in a more functionally orientated approach, that is, a shift of emphasis in matters of State immunity from immunity ratione personae to immunity ratione materiae.5 Now two recent cases in the United Kingdom have raised the possibility that, in the case of diplomats at least, the two concepts may be combined to provide a double immunity for diplomatic agents against civil suit. More controversially, the cases have raised the possibility of a third type of protection based upon immunity ratione personae in what could be said to amount to a modified act of State doctrine. The cases in question are Propend Finance Pty Ltd. v. Alan Sing and The Commissioner of the Australian Federal Police6 and Re P (Diplomatic Immunity: Jurisdiction).7

The Pinochet judgment fifteen years on

Fifteen years after the Pinochet judgment this chapter will identify the key arguments in our original article and test that analysis against the present day State of international and domestic law, particularly within the context of the highly controversial relationship between immunities and human rights. Additionally, this chapter will seek to further analyse the judgment against recent case law emanating from domestic courts, the European Court of Human Rights and the International Court of Justice (ICJ). The analysis will also briefly consider the alternatives to the constant challenges to immunity from jurisdiction that have the potential further to undermine what is an important procedural safeguard in the conduct of international relations.

Negotiating the complex interface between state immunity and human rights: an analysis of the international court of justice decision in Germany v Italy

AbstractOne of the most controversial areas of contemporary international law is the interface between immunities and human rights. International immunities have been successfully challenged on human rights grounds in certain jurisdictions. However, to date, no international court tribunal has endorsed such challenges. In its judgment in Germany v. Italy the International Court of Justice re-asserted the conservative approach to the relationship between State immunity and human rights, which rejects the claim that State immunity is “trumped” by hierarchically superior human rights norms. This article examines the Court’s reasoning, before turning to consider the alternative vision of the interface between State immunity and human rights presented by Judge Cincado Trindade. While persuasive, Trindade’s analysis must ultimately be rejected. The overtly positivist and formalistic approach of the Court, which is itself open to criticism, was, nevertheless, necessitated by the failure of States to provide for a human rights exception in the United Nations Convention on the Jurisdictional Immunities of States and Their Property 2004, signifying a strong opinio juris against the further limitation of State immunity at the present time. Nevertheless, the Court carefully sought to limit the effects of its judgment by limiting its focus to the specific questions before it.

The Function of Diplomatic Missions in Times of Armed Conflict or Foreign Armed Intervention

This article examines Raoul Wallenberg’s work as a diplomat in Budapest between June 1944 and January 1945. It suggests that Wallenberg’s legacy was initially very limited as a result of the state-centric approach to the codification of diplomatic law in the Vienna Convention on Diplomatic Relations 1961. Nevertheless, it is argued that the emergence of the so-called “new” diplomacy, coupled with the developing notion of “responsibility to protect” in the face of gross violations of human rights, such as those faced by Wallenberg, have opened up the possibility for diplomats to engage in the process of protecting civilian populations in times of internal strife