| Divide sovereignty in two aspects. | The aspects:
1. A state has the exclusive right to govern its own internal affairs
2. A state is not prohibited from exercising jurisdiction in its own territory (Lotus case) |
| Define jurisdiction. | It's the authority of a state to exert its influence and power and create an impact or consequence on individuals or property. |
| Name the three forms of jurisdiction | Summarized:
1. Prescriptive jurisdiction
2. Enforcing jurisdiction
3. Adjudicating jurisdiction |
| Define the prescriptive jurisdiction. | Prescriptive jurisdiction relates to the authority of a state to apply its national laws to any individual. |
| Can a state always use its prescriptive jurisdiction? Explain. | No. The state has to be given a permissive principle in IL. There needs to be a connecting factor. |
| Name the five principles of prescriptive jurisdiction. | Summarized:
1. Territoriality
2. Nationality
3. Passive personality
4. Protective jurisdiction
5. Universal jurisdiction |
| Divide territoriality in 2 categories. | Summarized:
1. Objective territoriality: state has jurisdiction over offense committed on its territory
2. Subjective territoriality: state has jurisdiction over offense committed on an other states territoriality, but when the offense has been planned on the territory of the first state |
| Define jurisdiction due to nationality (active personality). | States may extend their laws to their own nationals regardless of where they are located. We see this type of jurisdiction in criminal cases.
If a person has a double nationality --> 2 states have jurisdiction. The Nottebohm Case decided that there has to be a connection between someone and their nationality. |
| Define passive personality | Individual acted upon is a national of the state (e.g., victims of an international terrorist attack). |
| Define protective jurisdiction. | A state’s vital interest is genuinely threatened or negatively effected by the act |
| Define universal jurisdiction. | No direct connecting factor, all states have jurisdiction:
1. To avoid a legal vacuum (e.g., piracy);
2. To end impunity for serious crimes under IL that violates ius cogens norms (e.g., genocide; and
3. Pursuant to treaty obligations to prosecute or extradite (aut dedere aut judicare) (e.g., international terrorism treaties) |
| Define the general rule of the jurisdiction to enforce. | The general rule: States cannot arrest individuals and seize property on the territory of another State without its consent. |
| A state uses extradition when there is no jurisdiction to enforce, name the principles of extradition. | The principles:
1. Double criminality (it's a crime in both countries)
2. Double jeopardy (ne bis in idem)
3. No extradition if there is a chance to receive inhuman or degrading treatment |
| Name the two reasons (or categories) why subjects (mainly states) plea for immunity. | Summarized:
1. Adjudicative jurisdiction: this relates to the jurisdiction of a court to render a judgment in a matter that involves a foreign state. A state cannot be sued before a foreign court unless it gives its consent
2. Enforcement jurisdiction |
| Name the two different kinds of acts in regards to sovereignty. | You have:
1. Acts of a sovereign nature (iure imperii); and
2. Acts of a non-sovereign nature (iure gestionis), such as commercial acts |
| Name the four tests in regards to the difference between commercial and sovereign acts. | The tests:
1. The private individual test: can the act be performed by a private individual?
- Yes --> commercial, no immunity
2. Purpose test: governmental purposes --> sovereign, immune
3. Nature test: this test looks at the nature of the act, not the purpose
- Sometimes states act through commercial acts, so not trustworthy
4. Contextual test: takes purpose and nature of activity into consideration, very common |
| Define the restrictive approach for state immunity. | Immunity only exists for sovereign or governmental acts of the foreign state, not commercial or private acts. |
| Name the exceptions for state immunity. | No immunity for commercial transactions:
1. Exceptions (immunity applies):
- Commercial activity between states
- Parties agree to immunity
- Foreign state entity has 'independent legal personality'
No immunity for employment contracts between foreign state and individuals:
1. Lots of exceptions (immunity applies, e.g., employee enjoys diplomatic immunity, national security interests at play, State and employee agree to immunity)
No immunity for personal injuries and damage to property:
1. For death, injury, etc.
2. Exception: states agree otherwise (immunity applies)
No immunity regarding ownership, possession or use of property:
1. Matter concerns any right, interest or obligation of a foreign State is in immovable property in forum (host) State
2. Exception: states agree otherwise |
| Why do state representatives enjoy certain immunities from national jurisdiction? | Because they personify the state on whose behalf they act and because they need the protection from national jurisdiction in order to fulfil their functions as a state representative. |
| Define the two different types of immunity in regards to state immunity for representatives. | Summarized:
1. Immunity ratione personae (personal immunity):
- Follows the position a representative holds
- Small group of high level officials and diplomatic agents
- Both official and private acts are covered
2. Immunity ratione materiae (functional immunity):
- Follows the functions representatives perform
- All state representatives
- No private acts, just public acts |
| Can immunity ratione personae make a head of state immune to criminal prosecution? | It does not offer absolute protection from criminal prosecution (Arrest Warrant, different circumstances):
1. Can be prosecuted in home state for the criminal act
2. Host state needs to waive immunity for forum state
3. Criminal prosecution before international courts
4. He can be prosecuted after his or her term expires for acts committed either prior or after the period of office or for private acts committed during the period in office |
| Name the two rules in regards to the distinction between official and personal acts by a state representative. | The distinction:
1. The motives of the state representative are immaterial
2. Acts that fall outside the official functions of a state representative (conduct ultra vires) are still official acts if they are performed in a public capacity |
| Name the characteristics in regards to immunity ratione materiae. | Summarized:
1. Only for acts performed in their official capacity (including (non-)commercial and ultra vires acts)
2. Immune for civil cases in courts of other states
3. Exceptions:
- Crimes committed on the other state's territory
- Pinochet exception
4. Immunity ends for official acts when state waives immunity (by national court)
5. In criminal cases the state must case immunity
6. In civil cases the national court needs to decide if official has immunity |
| On what are diplomatic relations based? | On consent and mutual interest. |
| What are the rights of a state in regards to diplomatic relations? | Summarized:
1. State can send a member of a diplomatic mission home at any time (persona non grata)
2. Invoke its consent without any reason |
| What kind of immunity does a member of a diplomatic mission enjoy? | Immunity ratione personae: full immunity from the criminal jurisdiction of a host state. |
| Do exceptions exist for diplomatic immunity? | Yes, article 31 VCDR. |
| What can the host state do if the sending state is abusing its freedom in rights (diplomatic relations)? | The sending state can:
1. Withdraw its consent (persona non grata)
2. Break off diplomatic relations |
