Monthly archive May, 2015

Functional immunity of State officials before the International Law Commission: The ‘who’ and the ‘what’

1. Introduction Riccardo Pisillo Mazzeschi offers an interesting proposal to merge ratione personae and ratione materiae immunity for current and former state officials from the jurisdiction of foreign states. He argues that the traditional distinction between these forms of immunity ‘demands a critical review’ because, in contemporary international practice, both types of immunity are rooted...

Comment on ‘The functional immunity of State officials from foreign jurisdiction: A critique of the traditional theories’

1. Introduction Riccardo Pisillo Mazzeschi has written an impressively researched and thought-provoking article that challenges the traditional theories on functional immunity of State officials. He not only challenges the conceptual premise that the immunity of State officials is a necessary corollary of the immunity of the State, but also questions the scope of functional immunity...

The enduring validity of immunity ratione materiae: A reply to Professor Pisillo Mazzeschi

1. Introductory remarks Professor Riccardo Pisillo Mazzeschi has devoted a stimulating article to a specific aspect of the international law on immunities: the scope ratione personae of immunity ratione materiae. On the basis of a rich analysis, he concludes that not all State officials, but only certain categories thereof, benefit from immunity ratione materiae. I...

The functional immunity of State officials from foreign jurisdiction: A critique of the traditional theories

1. Introduction: The controversial issue of the functional immunity of State officials from foreign jurisdiction and the work of the ILC The norms of customary international law concerning the functional (or ratione materiae)  immunity of State officials from foreign (criminal, civil and administrative) jurisdiction are somewhat dated but nonetheless remain controversial and contemporary international law...

For all or for some? Functional immunity of State officials be-fore the International Law Commission

Introduced by Beatrice Bonafé, Micaela Frulli and Paolo Palchetti Under international law, State officials are entitled to different types of immunity from foreign jurisdiction. Generally, two categories of immunities are identified: the so-called functional immunity (or ratione materiae) and personal immunities (or ratione personae). Notwithstanding the fact that these rules are among the oldest ones...

Jaloud v Netherlands and Hassan v United Kingdom: Time for a principled approach in the application of the ECHR to military action abroad

1. Introduction The aim of the present piece is not to undertake an examination of which of international human rights law (IHRL) and international humanitarian law (IHL) is ‘better’ or more appropriate to regulate the conduct of States in situations of armed conflict. Advocates of IHRL argue that it provides heightened protection for individuals, and...

Human Rights vs Humanitarian Law or rights vs obligations: Reflections following the rulings in Hassan and Jaloud

1. Introduction In two recent cases, Hassan v United Kingdom[1] and Jaloud v Netherlands,[2] the European Court of Human Rights (ECtHR) extended the wartime application of International Human Rights Law (IHRL). Although these cases have been celebrated for reducing the horrors of war, this paper shows otherwise.[3] Critical examination of them suggests that applying IHRL...

On the relationship between IHL and IHRL ‘where it matters’ once more: Assessing the position of the European Court of Human Rights after Hassan and Jaloud

Introduced by Marco Pertile and Chiara Vitucci   The relationship between international humanitarian law (IHL) and international human rights law (IHRL) is one of the thorniest issues in the recent literature on those two specialised areas of public international law.  It has elicited highly theoretical speculations, but there can be no doubts that it is...

What is living and what is dead in the European Convention on Human Rights? A Comment on Hassan v United Kingdom

1. Introductory remarks The nexus between the living instrument approach and the interpretative technique codified in Article 31(3)(b) of the Vienna Convention on the Law of Treaties (VCLT) is a close one. As the Court observed in A, B & C v Ireland, the existence of a consensus has long played a role in the...

Subsequent practice in Hassan v United Kingdom: When things seem to go wrong in the life of a living instrument

‘[L]a vita, che da un canto ha bisogno di muoversi sempre, ha pure dall’altro canto bisogno di consistere in qualche forma. Sono due necessità che, essendo opposte tra loro, non le consentono né un perpetuo movimento né un’eterna consistenza. Pensate che se la vita si movesse sempre non consisterebbe mai; e che, se consistesse per...

Does the ‘living instrument’ doctrine always lead to ‘evolutive interpretation’? Some remarks after Hassan v the United Kingdom

Introduced by Francesca de Vittor and Cesare Pitea   In the Hassan v the United Kingdom judgment the European Court of Human Rights found that ‘a consistent practice on the part of the High Contracting Parties, subsequent to their ratification of the Convention, could be taken as establishing their agreement not only as regards interpretation...