Immunity from foreign (domestic) jurisdiction for States and HRSO

1.1. State immunity: par in parem non habet imperium
Codified in the UN Convention on Jurisdictional Immunities of States and Their Property (abbreviated UNCSI), the rules on State immunity are of customary international law. Though in issues governed by certain treaties like the 1972 European Convention, general customary law does not apply. General customary law shall only be excluded when immunity issues between member States of the European Convention arise.

As Article 5 of UNCSI reads:
"A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention".
Subsequently, Art. 6 obliges States to refrain from exercising jurisdiction before its court against another State.

The underlying principle is that all States are sovereign and equal (as Article 2(1) of the UN Charter puts it). Thus, the UNCSI solely applies to immunity from foreign jurisdiction: a State could and should not be prosecuted before a domestic foreign court.  Note that State immunity is derived from State sovereignty, which relates to the rule that incumbent high-ranking State officials are also immune from the jurisdiction of foreign States. States have legal personality, therefore they enjoy immunity ratione personae: immunity from jurisdiction and enforcement.

1.2. Subjects of State immunity
For the purposes of the Convention on Jurisdictional State Immunities, a "State" means, Art. 2(1):
i. the State and its various organs of government;
ii. units of fa ederal State or political subdivisions which are entitled to perform acts in the exercise of sovereign authority and are acting in that capacity;
iii. agencies "  ";
iv representatives of the State, acting in that capacity.

From this follows that incumbent HRSO enjoy full immunity from foreign jurisdiction, a result of the classic view on sovereign immunity, as discussed under para 1.1.

1.3. Relative immunity
A distinction is drawn between acta iure imperii (governmental acts) and acta iure gestionis. States could not enjoy absolute immunity for their acta iure gestionis, see Art. 10(1) of UNCSI:
"If a State engages in a commercial transaction with a foreign natural or juridical person [..] the State cannot invoke immunity from that jurisdictio in a proceeding arising out of that commercial transaction". Paragraph 1 does not apply in case of one of the exceptions, mentioned in the second paragraph of Art. 10.

How does one determine, whether a contract or transaction is an acta iure gestionis? According to Article 2 of the UNCSI, reference should be made primarily to the nature of the contract or transaction; however, its purpose should also be taken into account. The focus shifts from the initial purpose of a transaction, to the nature of a transaction, to prevent States from using the "veil" of acta iure imperii in order to escape their obligations by invoking full immunity from foreign jurisdiction.

Other proceedings in which a State cannot invoke immunity, concern: contracts of employment
(Art. 11), personal injuries and damage to property (Art. 12), ownership (Art. 13), intellectual property (Art. 14)  and so on, see Part III of UNCSI.

1.4. Waiver of immunity
No problems will arise when a State has expressly consented to the exercise of jurisdiction by a foreign court, in the cases, mentioned in Article 7 of UNCSI. A State could be considered to have consented to the exercise of a foreign court implicitly, as Article 8(1) makes clear, unless paras 2-4 of Art. 8 UNCSI apply.

1.5. Jurisdictional Immunities of the State, ICJ 3 February 2012
Ferrini case: Germany v. Italy, Greece intervening
To an important extent, State immunity is based on the rules of customary international law, as the ICJ sets out in paras 53-58 of the 2012 Immunities case.

State immunity does not imply that a State cannot be held responsible for its actions; as was discussed before, State immunity solely implies that a State could not be prosecuted before a domestic foreign court. See para 53:  "The Court is not called upon to decide whether these acts were illegal; the question for the Court is whether or not, in proceedings regarding claims for compensation arising out of those acts, the Italian (domestic) courts were obliged to accord Germany immunity". A State prosecuting another State, could in its turn be held responsible for violating the right to invoke immunity from foreign jurisdiction.

1.5.1. Do the breach of ius cogens and territorial torts allow for denial of immunity?
Does customary international law prevent a State from lawfully invoking immunity in respect of the "Territorial Tort Principle", even is an act on the territory of a forum State was performed iure imperii? The Court considers it is not called upon in the present proceedings to resolve the question, whether there is in customary law a "tort exception" to State immunity to acta iure imperii in general (para 65).
        The Court agrees that the result of Art. 31 of the European Convention as a clause, is that the immunity of a State for the acts of its armed forces, falls out of the Convention and has to be determined by reference to customary law.The consequence is, however, that the inclusion of the "Territorial Tort Principle" cannot be treated as support for the argument that a State is not entitled to immunity for torts, commited by its armed forces (para 68).
       Moreover, State practice in the form of judicial decisions, supports the proposition that State immunity for acta iure imperii continues to extend to civil proceedings for acts occasioning [..] by the armed forces, even if the acts take place on the territory of the forum State. That practice is accompanied by opinio iuris, as a number of national courts made clear that customary law required immunity. The almost complete absence of contrary jurisprudence is significant (para 77).
       The Court concludes that, under customary law, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law. The question of whether immunity might apply in criminal proceedings is, however, not an issue in the present case (para 91).
       As to the relationship between ius cogens and State immunity, the Court considers that there exists no conflict between the two legal concepts, as the two sets of rules address different matters. The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought, was lawful or unlawful. Recognizing State immunity does not amount to recognizing as lawful the breach of ius cogens and so cannot contravene the principle in Article 41 of the ILC on State Responsibility
(para 93).

2. Immunity from jurisdiction for High-Ranking State Officials (HRSO)
As was set out above, the immunities in respect of HRSO are derived from the principle of sovereign immunity; the immunities of a HRSO are interrelated with State immunity. As a matter of fact, only a State can waive the immunity of an HRSO. An incumbent HRSO enjoys both immunity rationae materiae and rationae personae. Note that, after a HRSO ceases to hold the office, he or she will no longer hold all of the immunities. A State may try a former HRSO in respect of acts committed in a private capacity (Arrest Warrant 2002, DRC Congo v. Belgium, para 61).

2.1. Relevant considerations in the Arrest Warrant Judgment of 11 April 2002
Yerodia Ndombasi case, Congo v. Belgium
2.1.1. HRSO and full immunities, regardless of a official or private capacity
Certain holders of high-ranking office in a State enjoy immunities from jurisdiction in other States, both civil and criminal. It is only the immunity from criminal jurisdiction and the inviolability of an incumbent Minister for Foreign Affairs, that fall for the Court to consider (para 51).
              The rationale behind the immunity for HRSO is as follows. In customary international law, the immunities accorded to [..] are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States (para 53).
              When abroad, a HRSO (as is a Minister for Foreign Affairs i.c.) enjoys full immunity from criminal jurisdiction throughout the duration of his office [...] to protect the individual against any act of authority by another State which would hinder him in the performance of his duties (para 54).
In this respect, no distinction can be drawn between actes performed by a HRSO in an "official" capacity, and those claimed to have been performed in a "private" capacity (para 55).

2.1.2. Considerations regarding Opinion ex parte Pinochet
According to Belgium, the Pinochet decision recognizes an exception to the immunity rule when Lord Millett stated that "international law cannot be supposed to have established a crime [..] or when Lord Phillips said that "no established rule of international law requires state immunity ratione materiae to be accorded in respect of prosecution for an international crime" (para 56).
           The Congo cites Lord Browne-Wilkinson's statement that "this immunity, enjoyed by a head of  state in power is a complete immunity, attached to the person of the head of state and rendering him immune from all actions or prosecutions"  (para 57).
           The Court has been unable to deduce from [..] practice that there exists under customary law, any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers, where they are suspected of having commited war crimes. The rules concerning criminal responsibility of HRSO likewise do not enable to conclude that any such exception exists in customary law in regard to domestic courts (para 58).

2.1.3. Is impunity a result of immunity?
It should be noted that the rules governing the jurisdiction of foreign courts must be distinguished from those, governing jurisdictional immunities; jurisdiction does not imply absence of immunity and absence of immunity does not imply jurisdiction. The obligations of prosecution and extradition of serious crimes that are imposed on States, do in no way affect immunities under customary law, including those of HRSO (para 59).
         The immunity from jurisdiction enjoyed by HRSO does not mean that they enjoy impunity in respect of crimes committed, as immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts, the first being of a procedural nature, the latter being a question of substantive law (para 60).
         Acccordingly, the immunities enjoyed by an incumbent or former HRSO do not represent a bar to criminal prosecution in certain circumstances. The Court nouns four examples, the first being that jurisdictional immunity does not apply to trial in the domestic court of the HRSO; subsequently, the waiver of immunity by the represented State will cease the immunity from foreign jurisdiction; as mentioned, after a HRSO ceases to hold the office, he will no longer enjoy immunity for his acts commited in private (para 61).

2.1.4. Jurisdiction of International Criminal Tribunals
One important remark is that International Criminal Tribunals can trial HRSO in criminal proceedings, as the Rome Statute in Article 27(2) provides that immunities of an incumbent or former HRSO shall not bar the Court from exercising its jurisdiction over such a person.

3. X v. Bow Street Metropolitan Stipendary Magistrate, Ex parte Pinochet Ugarte (No 3)
3.1.1. Defining the scope
The ICY reasoned in its Jurisdictional Immunities case (Ferrini) of 2012, that a clear distinction should be made between State immunity and the criminal jurisdiction of a former HRSO: "Pinochet concerned the immunity of a former Head of State from criminal jurisdiction of another State, not the immunity of the State itself in proceedings to establish its liability to damages"(para 87 Fellini case).

3.1.2 Could torture, committed by a former HRSO, be considered an official act?
Immunity ratione personae attaches to the office, meaning that a former HRSO cannot invoke immunity with respect to acts committed in private during his time in office, while immunity ratione materiae can be invoked for the official acts that have been committed during his time in office.
        Regarding the Pinochet case, it is important to note that "The Republic of Chile accepted that the international law prohibiting torture, has the character of ius cogens or a peremptory norm". Chile is a party to the Torture Convention (Convention Against Torture, CAT).
       The question which has to be answered, is whether the alleged organisation of state torture by Senator Pinochet (if proved) would constitute an official act, committed as a Head of State. It is not enough to say that it cannot be part of his functions to commit a crime. Actions which are criminal under local law, can still have been done officially and therefore give rise to immunity ratione materiae. Can it be said that the commission of a crime which is an international crime against humanity and ius cogens, is an act done in an official capacity on behalf of the state?
       Under the CAT the international crime of torture can only be committed by an official [...] If immunity applies, there can be no case outside of Chile in which a succesful prosecution can be brought (unless the State is prepared to waive its right to its officials' immunity). One of the main objectives of the CAT: universal jurisdiction over torture, committed by HRSO, would be frustrated by upholding immunity for former HRSO.  The notion of continued immunity for former HRSO is inconsistent with the provisions of CAT.

The conditions for making lawful reservations to treaties

Do reservations diminish the object and purpose of a Treaty?
This question could well be posed by a naturalist. From a naturalist point of view, one could state that reservations do undermine the purpose of a Treaty, for, what is the use of a Treaty, if states are- de facto- allowed to exclude the (ICJ) jurisdiction, especially when it comes to treaties concerning human rights, as is one of the main topical issues, the multilateral Convention on the prevention and punishment of the crime of genocide, Art. IX?

1.1. Positivist approach: efficiency and efficacy
From a positivist approach, however, to some extent, compromises are inevitable in the treaty-making process; the treaty-making process requires efficiency.  Efficiency could not be reached if every party to a treaty has to vote unanimously on a large number of matters- which was, in fact, the case before 1940. It goes to show that negotiations often take decades before a "final" decision is issued.
Another positivist argument on the permissibility of reservations can be found in the efficacy of international rules. States are more likely to adhere to certain rules if they are able to shape the rules, more or less, to their own discretion.

1.2. The USSR case and the ICJ Opinion on Reservations
The conclusion that reservations to treaties are permissible, stems from the 1948 Genocide Convention. Not having recognized the jurisdiction of the International Court of Justice, the USSR proposed reservations to article IX of the Genocide Convention, discarding the jurisdiction of the ICJ to enforce article IX. The advisory opinion holds that reservations to a treaty are permissible, as long as these reservations are compatible with the object and purpose of the treaty. As you'll notice, this conclusion has found its way into the VCLT, particularly into article 19. Although the ICJ aims at creating a balance between interests of states and the purpose of - in case- the Convention- one could say that the advisory opinion works in favour of the party proposing reservations to a treaty. In the end, state sovereignty prevails.

Thus, the question is no longer if reservations to a treaty are permissible, for allowing a state to attach a reservation is a means of imposing obligations on this state, being or expressing its will to become a party to the treaty. The question is hence, to what extent reservations to treaties are permissible.
Whether it concerns the decision-making process or judging an international (internationally wrong acts, for example) case, there will, by  nature, always be ambiguity. There are no "hard and fast rules" in global politics.

Before I am going to discuss what conditions make reservations to treaties permissible, let's explore the subject, "law of treaties", according to the Vienna Convention on Law of Treaties (abbreviation: VCLT).
Note that the VCLT just entered into force on 27 January 1980; therefore, it should be clear that the VCLT is not applicable to cases prior to 1980- if you would like to know which treaties and conventions could be applied to previous cases, look up the International Court of Justice database.

2.1. Law of Treaties
The Law of Treaties is said to be governed by the VCLT and international customary law. Since the Vienna Convention is a mere codification of customary international law, can these two "sources" of law actually be separated? H.L.A. Hart has drawn a distinction between primary and secondary rules of international law, the first type of rules concerning (substantive)  obligations (such as the prohibition of genocide), the second type governing the application and interpretation of primary rules (often mentioned examples of secondary rules include the regimes of state responsibility and the law of treaties). The ILC emphasizes state responsibility for the sake of efficacy.

The scope of the Vienna Convention is presented in article 1, which states that
"The VCLT applies to treaties between states".  Art. 2, para 1 (a) defines "treaties" as:

"International agreements concluded between States, in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation".

In two cases, the SS Lotus case (1927)  and the SS Wimbledon case (1923), the Permanent Court of International Justice  (PCIJ) has given rise to the idea that two principles underlie the law of treaties. One is that states are sovereign, therefore no valid treaty can do without the free consent of states entering into the treaty, i.o. words consensualism is an essential feature; the other principle is that commiting to a treaty imposes obligations on states: the efficacy of a treaty requires that states perform these treaties in good faith. However, the old Roman brocard "pacta sunt servanda" originally applies to civil law.

2.1.2. Ius cogens
Note that peremptory norms are regarded certain overriding principles of international law, which, speaking with I. Brownlie (Principles of International Law), form a "body of ius cogens". No State may derogate from these principles by way of a treaty. Treaties conflicting with a peremptory norm of general international law are void, art. 53 VCLT. The VCLT makes clear that a peremptory norm of international law is "a norm accepted and recognized by the international community of States as a whole, from which no derogation is permitted and which can only be modified by a subsequent norm of general internation law, having the same character".

2.2. Reservations
According to article 2 (1)(d) a "reservation" means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that State".

One main rule conducts the formulation of reservations. As article 19 makes clear, a State may formulate a reservation, unless:
a. the formulation is prohibited by the treaty itself;
b. the treaty provides that only specified reservations, not including the reservation in question, may be made;
c. in cases not falling under sub-paragraphs a and b, the reservation is incompatible with the object and purpose of the treaty.

Highly inspired by the Advisory Opinion of  28 May 1951, the last sub-paragraph has led to an enduring discussion on the "compatibility" with the "object and purpose of a treaty", for there is no general rule to define these concepts of a treaty.

As Scheinin puts it: "..one might think that the VCLT cannot provide solutions to reservations problems in relation to human rights treaties because many of its provisions are written to reflect the operation of multilateral treaty between States in issues where States act in their own interest in respect of other States [...] where the treaty does not establish an independent international mechanism for its application and interpretation" (read "Reservations by States under the ICCPR and its optional protocols", in I. Ziemele, "Reservations to human rights treaties and the Vienna Convention Regime").IUs