International law, Sixth edition
party to the sixth International Tin Agreement, 1982 under which the ITC
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International Law MALCOLM N. SHAW
party to the sixth International Tin Agreement, 1982 under which the ITC was constituted. The Court of Appeal in Maclaine Watson v. Department of Trade and Industry 203 held that the EEC’s claim to sovereign immunity was untenable. It had been conceded that the EEC was not a state and thus could not rely on the State Immunity Act 1978, but it was argued that the Community was entitled to immunity analogous to sovereign immunity under the rules of common law. This approach was held by Kerr 198 An Order in Council has been made with respect to the constituent territories of Austria, SI 1979 no. 457, and Germany, SI 1993 no. 2809. The Act may also be extended to dependent territories: see e.g. the State Immunity (Overseas Territories) Order 1979, SI 1979 no. 458 and the State Immunity (Jersey) Order 1985, SI 1985 no. 1642. 199 See e.g. BCCI v. Price Waterhouse [1997] 4 All ER 108; 111 ILR, p. 604. 200 [2005] EWHC 2704. 201 Ibid., paras. 38 ff. 202 See also the Report of the International Law Commission, 1991, p. 13. Note that article I of the Revised Draft Articles for a Convention on State Immunity adopted by the Interna- tional Law Association in 1994 defines the term ‘foreign state’ to include the government of the state, any other state organs and agencies and instrumentalities of the state not pos- sessing legal personality distinct from the state. No specific reference to units of federal states is made. 203 [1988] 3 WLR 1033; 80 ILR, p. 49. i m m u n i t i e s f r o m j u r i s d i c t i o n 735 LJ to be ‘entirely misconceived’. 204 Although the EEC had personality in international law and was able to exercise powers and functions analogous to those of sovereign states, this did not lead on to immunity as such. This was because sovereign immunity was ‘a derogation from the normal exercise of jurisdiction by the courts and should be accorded only in clear cases’, 205 while the concept itself was based upon the equality of states. The EEC Treaty, 1957 and the Merger Treaty, 1965 themselves made no claim for general immunity and nothing else existed upon which such a claim could be based. 206 The personality issue – immunity for government figures 207 The question of immunity ratione personae arises particularly and most strongly in the case of heads of state. Such immunity issues may come into play either with regard to international tribunals or within domestic orders. Taking the first, it is clear that serving heads of state, and other governmental officials, may be rendered susceptible to the jurisdiction of international tribunals, depending, of course, upon the terms of the constitutions of such tribunals. The provisions of, for example, the Ver- sailles Treaty, 1919 (article 227); the Charter of the International Military Tribunal at Nuremberg, 1945 (article 7); the Statutes of the Yugoslav and Rwanda International Criminal Tribunals (articles 7 and 6 respectively); the Rome Statute of the International Criminal Court, 1998 (article 27) and the Statute for the Special Court for Sierra Leone, 2002 (article 6(2)) all expressly state that individual criminal responsibility will exist irre- spective of any official status, including that of head of state. This was reaffirmed by the Special Court for Sierra Leone in its decision concern- ing the claim for immunity made by Charles Taylor. 208 204 [1988] 3 WLR 1107; 80 ILR, p. 122. 205 Victory Transport v. Comisaria General de Abastecimientos y Transportes 336 F.2d 354 (1964), cited with approval by Ackner LJ in Empresa Exportadora de Azucar v. Industria Download 7.77 Mb. Do'stlaringiz bilan baham: |
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