International law, Sixth edition
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International Law MALCOLM N. SHAW
Jimenez v. Aristeguieta 33 ILR, p. 353; Lafontant v. Aristide 103 ILR, pp. 581, 585 and
Mobutu and Republic of Zaire v. Soci´et´e Logrine 113 ILR, p. 481. See also Watts, ‘Legal Position’, pp. 54 ff. 219 See e.g. Watts, ‘Legal Position’, p. 54. See also Djibouti v. France, ICJ Reports, 2008, paras. 170 ff. 220 [2000] 1 AC 147, 201–2; 119 ILR, p. 135. 221 [2000] 1 AC 244. See also Lord Goff at 210; Lord Saville at 265 and Lord Millett at 269. See also the decision of 12 February 2003 of the Belgian Court of Cassation in HSA et al. v. SA et al., No. P. 02.1139. F/1, affirming the immunity of Prime Minister Sharon of Israel. 222 Arrˆet no. 1414, 14 March 2001, Cass. Crim. 1. See e.g. S. Zappal`a, ‘Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddafi Case Before the French Cour de Cassation’, 12 EJIL, 2001, p. 595. See also Tatchell v. Mugabe, unreported decision of the Bow Street Magistrates’ Court, 14 January 2004, affirming the absolute immunity of President Mugabe, the Head of State of Zimbabwe. 738 i n t e r nat i o na l l aw law of head of state immunity, 223 a proposition affirmed in earlier case-law. 224 Fourthly, the immunity of a former head of state differs in that it may be seen as moving from a status immunity (ratione personae) to a functional immunity (ratione materiae), so that immunity will only exist for official acts done while in office. The definition of official acts is somewhat unclear, but it is suggested that this would exclude acts done in clear violation of international law. It may be concluded at the least from the judgment in Ex parte Pinochet (No. 3) that the existence of the offence in question as a crime under international law by convention will, when coupled in some way by a universal or extraterritorial mechanism of enforcement, operate to exclude a plea of immunity ratione materiae at least in so far as states parties to the relevant treaty are concerned. 225 This may be a cautious reading and the law in this area is likely to evolve further. The question as to whether immunities ratione personae apply to other governmental persons has been controversial. 226 The International Law Commission, for example, in its commentary on the Draft Articles on Jurisdictional Immunities (which led to the UN Convention on Jurisdic- tional Immunities) distinguished between the special position as regards immunities ratione personae of personal sovereigns (which would include heads of state) and diplomatic agents and that of other representatives of the government who would have only immunities ratione materiae. 227 223 386 F.3d 205 (2004). 224 See Wei Ye v. Jiang Zemin 383 F.3d 620 (2004), noting also that the State Department’s suggestion as to immunity was conclusive. 225 [2000] 1 AC 147 at e.g. 204–5 (Lord Browne-Wilkinson); 246 (Lord Hope); 262 (Lord Hutton); 266–7 (Lord Saville); 277 (Lord Millett); 290 (Lord Phillips); 119 ILR, p. 135. Note that by virtue of s. 20 of the State Immunity Act cross-referring to the Diplomatic Privileges Act 1964 incorporating the Vienna Convention on Diplomatic Relations, 1961, the immunities of a head of state were assimilated to those of the head of a diplomatic mission. Article 39(2) of the Vienna Convention provides that once a diplomat’s functions have come to an end, immunity will only exist as regards acts performed ‘in the exercise of his functions’. 226 Note that as far as UK law is concerned, the provisions of s. 20(1) of the State Immunity Act do not apply so that the analogy with diplomatic agents is not relevant: see previous footnote. 227 See the Report of the International Law Commission, 1991, pp. 24–7. See also Watts, ‘Legal Position’, pp. 53 and 102, who adopts a similar position. Lord Millett in Ex parte Pinochet Download 7.77 Mb. Do'stlaringiz bilan baham: |
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