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Chapter

Cover Brownlie's Principles of Public International Law

22. Privileges and immunities of foreign states  

This chapter begins with a discussion of the evolution of the international law of state immunity. It then reviews the modalities of granting immunity, attachment and seizure in execution, and state immunity and human rights.

Chapter

Cover Cases & Materials on International Law

9. Immunities from National Jurisdiction  

States and international organisations and their representatives in the courts of other States enjoy immunity from legal process. This immunity can be split conveniently into State (or sovereign) immunity, and diplomatic and consular immunities. The first concerns foreign States per se (including the Head of State), while the second concerns the personal immunities enjoyed by representatives of those States. This chapter discusses the general principles of state immunity in international law; state immunity in the United Kingdom; Heads of State and other holders of high-ranking office; the relationship between immunity and acts contrary to international law; the immunities of international organisations and their staff; and diplomatic and consular immunities.

Chapter

Cover International Criminal Law

14. Jurisdictional immunities  

State officials enjoy two types of immunity from the jurisdiction of foreign courts: functional immunity prevents a current or former State official being brought before the courts of a foreign State in respect of his or her official acts (also called immunity ratione materiae); personal immunity is held by certain high officials for the duration of their office and covers both their private and official acts (also called immunity ratione personae). The question then arises whether these immunities are available in the case of international crimes. This chapter first provides an overview of the law of state immunity in general international law. It then considers the immunities enjoyed by individual officials in criminal cases, with a particular emphasis on the law that applies before national courts. It also looks at the applicable law before the International Criminal Court (ICC), and the controversial question of which immunities (if any) are available to the officials of States that are not party to the ICC Statute.

Chapter

Cover International Law

9. Immunities  

This chapter explores the concept of immunities. Immunity from jurisdiction describes the doctrines developed in domestic courts over time to avoid infringements on State sovereignty whenever possible. Generally speaking, immunities seek to prevent foreign courts from exercising jurisdiction regarding the conduct of another State, its agents, officials, or diplomatic representatives, as well as from adjudicating on inter-State disputes without their consent. Due in part to the historical conflation of State and sovereign that defined the scope of immunity, several mechanisms have been developed that allow various categories of officials of States to invoke immunity in the courts of another State. Often an exemption from local jurisdiction exists in relation to mundane violations such as driving offences or administrative matters. However, exemption from jurisdiction has important policy implications if the act in question constitutes an international crime.

Chapter

Cover International Law Concentrate

7. Immunities  

Immunity is a procedural bar whereby the courts of a country are precluded, while the immunity persists, from entertaining a suit, civil or criminal, against a person or entity. This chapter distinguishes the personal from functional immunities and then goes on to demonstrate the difference between acts undertaken in a public capacity, which always attract immunity, and those undertaken in a private capacity, which do not, as a rule, attract immunity. The chapter shows that, in recent years, the characterization of an act as being of a public nature has been restricted by the practice of States and national courts.

Chapter

Cover Cassese's International Law

6. Immunities of States and State Officials  

Paola Gaeta, Jorge E. Viñuales, and Salvatore Zappalà

A corollary of the obligation to respect the sovereignty of other States is the recognition of the immunities of States and State officials. This chapter examines the immunities enjoyed by States from the jurisdiction of foreign courts and from execution proceedings against their property and assets. The discussion addresses the issue in general terms and then specifically tackles two issues of significant practical importance, namely the operation of State immunity in employment disputes and in cases where violations of peremptory norms are at stake. It also analyses the functional and personal immunities of certain types of State official, namely diplomatic and consular agents, as well as high-ranking officials, such as Heads of State and Government and Ministers of Foreign Affairs.

Chapter

Cover Evidence

3. Witnesses: competence, compellability, and various privileges  

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter discusses the following: the competence of witnesses in civil and criminal cases; the compellability of witnesses, and of the accused and the spouse or civil partner in criminal cases in particular; sworn and unsworn evidence; privileges enjoyed by certain categories of witness, focusing upon the privilege against self-incrimination, and legal professional privilege (in the form of both legal advice privilege and litigation privilege); and public interest immunity.

Chapter

Cover International Law

6. Immunity from national jurisdiction and diplomatic protection  

This chapter discusses the different forms of immunity from national jurisdiction enjoyed by a state and its representatives. It presents state immunity and the complicated distinction between sovereign (jure imperii) and commercial (jure gestionis) acts. It discusses the exception to state immunity for commercial acts; provides an overview of some of the additional exceptions to state immunity; and discusses the immunities of state representatives. It distinguishes between immunity ratione personae and immunity ratione materiae and discusses how the distinction is applied to different state representatives. It also discusses the immunities of diplomatic representatives and diplomatic missions as well as the issue of consular protection and the immunities enjoyed by so-called special missions.

Chapter

Cover International Law

6. Immunity from national jurisdiction and diplomatic protection  

This chapter discusses the different forms of immunity from national jurisdiction enjoyed by a state and its representatives. It presents state immunity and the complicated distinction between sovereign (jure imperii) and commercial (jure gestionis) acts. It discusses the exception to state immunity for commercial acts; provides an overview of some of the additional exceptions to state immunity; and discusses the immunities of state representatives. It distinguishes between immunity ratione personae and immunity ratione materiae and discusses how the distinction is applied to different state representatives. It also discusses the immunities of diplomatic representatives and diplomatic missions as well as the issue of consular protection and the immunities enjoyed by so-called special missions.

Chapter

Cover Smith & Wood's Employment Law

10. Industrial action  

This chapter considers the law relating to strikes and other industrial action including the important changes made by the Trade Union Act 2016. It deals with the historical development of common law and statute in this field to illuminate the current law. The relevance of the European Convention on Human Rights is considered. The tortious and criminal liabilities flowing from industrial action are considered, as well as the crucial immunity for tortious liability provided by the ‘golden formula’, including the exceptions to this immunity and the preconditions of complying with rules on balloting and notice of industrial action. Picketing is considered in relation to the many legal liabilities and the statutory immunity for some peaceful picketing. The granting of injunctions to stop industrial action is examined. The impact of industrial action on individual employees is considered in relation to their contractual rights and liabilities and the law of unfair dismissal.

Chapter

Cover Smith & Wood's Employment Law

10. Industrial action  

Ian Smith, Owen Warnock, and Gemma Mitchell

This chapter considers the law relating to strikes and other industrial action, including the important changes made by the Trade Union Act 2016. It deals with the historical development of common law and statute in this field to illuminate the current law. The relevance of the European Convention on Human Rights is considered. The tortious and criminal liabilities flowing from industrial action are considered, as well as the crucial immunity for tortious liability provided by the ‘golden formula’, including the exceptions to this immunity and the preconditions of complying with rules on balloting and notice of industrial action. Picketing is considered in relation to the many legal liabilities and the statutory immunity for some peaceful picketing. The granting of injunctions to stop industrial action is examined. The impact of industrial action on individual employees is considered in relation to their contractual rights and liabilities and the law of unfair dismissal.

Chapter

Cover Cassese's International Criminal Law

17. Legal impediments to the exercise of criminal jurisdiction  

Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting

This chapter discusses the obstacles that may hamper or jeopardize criminal proceedings for international crimes. These include rules granting amnesty for broad categories of crimes; statutes of limitation; the prohibition of double jeopardy (the principle of ne bis idem), whereby a person may not be brought to trial twice for the same offence; and international rules on personal immunities.

Chapter

Cover International Law

12. Immunities Enjoyed by Officials of States and International Organizations  

Chanaka Wickremasinghe

This chapter examines the immunities enjoyed by various categories of officials of States and international organizations. It identifies jurisdictional immunity as one of the key legal techniques by which diplomatic relations and, more broadly, international relations and cooperation can be maintained. It recognises that recent developments in international law have increasingly required that immunities be scrutinised and justified, particularly where they impact on individual rights. Among the most striking of such challenges to immunities are those that have arisen in relation to measures which seek to bring an end to the impunity of persons who commit the most serious international crimes, including measures such as the development of extraterritorial jurisdiction and the establishment of international criminal tribunals. A range of judicial decisions is reviewed in order to determine how international law has attempted to reconcile such conflicting priorities in this respect.

Chapter

Cover International Law

8. International Organizations  

Dapo Akande

This chapter examines the legal framework governing international organizations. It begins with an examination of the history, role, and nature of international organizations. It is argued that although the constituent instruments and practices of each organization differ, there are common legal principles which apply to international organizations. The chapter focuses on the identification and exploration of those common legal principles. There is an examination of the manner in which international organizations acquire legal personality in international and domestic law and the consequences of that legal personality. There is also discussion of the manner in which treaties establishing international organizations are interpreted and how this differs from ordinary treaty interpretation. The legal and decision-making competences of international organizations are considered as are the responsibility of international organizations and their privileges and immunities. Finally, the chapter examines the structure and powers of what is the leading international organization—the United Nations (UN).

Chapter

Cover Murphy on Evidence

18. Public interest immunity and privilege I  

Public interest immunity

This chapter first discusses the different rules governing public interest immunity and privilege, focusing on the waiver of the right to withhold and the use of secondary evidence if the original is immune from production and inadvertent disclosure. It then turns to public interest in both civil and criminal cases, covering applications to withhold material subject to public interest immunity; ‘affairs of state’ cases; whether the court can question the claim to withhold and by what criteria the claim to withhold should be judged; closed material procedures; the use of methods such as redaction to minimise the effect of a refusal to disclose documents; information given for the detection of crime, etc.; and confidentiality.

Chapter

Cover The Modern Law of Evidence

21. Public policy  

The public interest in efficient and fair trials may be seen as underlying the rules of disclosure in civil litigation, whereby a litigant is obliged to make pre-trial disclosure of the documents on which he relies and the documents that adversely affect his own case or adversely affect, or support, another party’s case, even though such documents may not be admissible evidence at the trial. There is also a public interest in enabling material to be withheld where its production would harm the nation or the public service. Where these two kinds of public interest clash and the latter prevails over the former, relevant and otherwise admissible evidence is excluded at trial. Such material is said to be withheld by reason of ‘public interest immunity’. This chapter discusses the development of the modern law on public interest immunity; the scope of exclusion on grounds of public policy; and related procedural issues in civil and criminal cases.

Chapter

Cover Street on Torts

23. Misuse of process and public powers  

This chapter examines the provisions of tort law concerning misuse of process and public powers, these rules having long been features of English law. It discusses elements of the three principal causes of action, which are malicious prosecution (for legal claims brought without reasonable cause), abuse of process (for legal proceedings commenced with a wrongful predominant purpose), and misfeasance in a public office. The chapter highlights the need to balance the protection of individual rights and interests against the conduct of public administration and the administration of justice. This chapter considers also the limits to witness immunity and abuse of the legal process.

Chapter

Cover International Law

11. International Law and Restraints on the Exercise of Jurisdiction by National Courts of States  

Philippa Webb

This chapter examines the methods by which States prevent their national courts from deciding disputes that relate to the internal affairs of another State. It considers three main ‘avoidance techniques’: State immunity, act of State, and non-justiciability. It discusses the arguments for and against the current prohibition on the determination of one State’s disputes in the national courts of another State, and identifies the challenges presented by the rule of law, an individual’s right of access to court, and the implementation of jus cogens norms to the maintenance of these avoidance techniques. It concludes with the observation that the pendulum continues to swing between prioritizing sovereignty by protecting the activities of States from judicial scrutiny and calling for greater accountability and remedies for violations of international law.

Chapter

Cover Concentrate Questions and Answers Evidence

10. Privilege and public policy  

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and diagrams and flow charts. This chapter covers evidence excluded for policy or public interest considerations: public interest immunity (PII). A party, witness or non-participant in proceedings may refuse to disclose information, papers or answer questions, even though such material may be highly relevant and reliable. If PII applies, neither party has access to the evidence. For privilege, the areas most likely to occur in Evidence courses are privilege against self-incrimination and legal professional privilege. The former includes the right to silence of the defendant. The privilege against self-incrimination is generally upheld by common law and by implication by Art. 6 of the European Convention on Human Rights (ECHR). Legal professional privilege is a common law exclusionary rule principle that applies in civil and criminal proceedings.

Chapter

Cover Brownlie's Principles of Public International Law

7. International organizations  

This chapter focuses on the main legal problems arising from interstate organizations. Topics discussed include legal personality, privileges and immunities, performance of acts in the law, interpretation of the constituent instrument, relations of international organizations, law-making through organizations, and legal control of acts of organizations.