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<p>This article analyses the consequences of the International Law Commission (ILC) adopting Draft Article 7, about exceptions to immunity <italic>ratione materiae</italic> of foreign criminal prosecution, in a seemingly rushed way, without solving the sometimes antagonistic views of its members and of the international community. To this end, the generally accepted rules of immunity were reviewed, followed by taking a closer look at the discussions within the ILC. It seems that the reasoning of the Special Rapporteur on the topic has failed to provide enough proof of state practice and <italic>opinio juris</italic> to affirm the customary status of an exception to immunity <italic>ratione materiae</italic> for international crimes. Had the commission tried to resolve the disagreement among its members, the provisional adoption of Draft Article 7 would not bring much criticism. As a result of the lack of clarity, however, national courts are applying said exceptions, which action is believed to be contrary to international law as it currently stands. This is one of the consequences of the provisional adoption, the other being the international responsibility of states which disregard the immunity of a foreign official, not to mention the deterioration of the friendly relationship between the forum State and the State of nationality of the official.</p>
</abstract>

This article analyses the consequences of the International Law Commission (ILC) adopting Draft Article 7, about exceptions to immunity ratione materiae of foreign criminal prosecution, in a seemingly rushed way, without solving the sometimes antagonistic views of its members and of the international community. To this end, the generally accepted rules of immunity were reviewed, followed by taking a closer look at the discussions within the ILC. It seems that the reasoning of the Special Rapporteur on the topic has failed to provide enough proof of state practice and opinio juris to affirm the customary status of an exception to immunity ratione materiae for international crimes. Had the commission tried to resolve the disagreement among its members, the provisional adoption of Draft Article 7 would not bring much criticism. As a result of the lack of clarity, however, national courts are applying said exceptions, which action is believed to be contrary to international law as it currently stands. This is one of the consequences of the provisional adoption, the other being the international responsibility of states which disregard the immunity of a foreign official, not to mention the deterioration of the friendly relationship between the forum State and the State of nationality of the official.

Provisional Adoption of Draft Article 7 of the International Law Commission Articles on Immunity for Foreign Officials and Its Implications

Department of Law, Administration and Economics

Wroclaw Review of Law, Administration & Economics

This work is licensed under the Creative Commons Attribution 4.0 International License.

This article analyses the consequences of the International Law Commission (ILC) adopting Draft Article 7, about exceptions to immunity ratione materiae of...

Provisional Adoption of Draft Article 7 of the International Law Commission Articles on Immunity for Foreign Officials and Its Implications

Publié en ligne: 14 déc. 2023

Pages: -

DOI: https://doi.org/10.2478/wrlae-2023-0001

Mots clés
Immunity from jurisdiction, Immunity, International Law Commission, Draft Article 7, Exceptions to immunity from criminal jurisdiction

© 2023 Lucas Da Costa Pereira Fontoura, published by Sciendo

This work is licensed under the Creative Commons Attribution 4.0 International License.

Provisional Adoption of Draft Article 7 of the International Law Commission Articles on Immunity for Foreign Officials and Its Implications

Publié en ligne: 14 déc. 2023

Pages: -

DOI: https://doi.org/10.2478/wrlae-2023-0001

Mots clésImmunity from jurisdiction, Immunity, International Law Commission, Draft Article 7, Exceptions to immunity from criminal jurisdiction

© 2023 Lucas Da Costa Pereira Fontoura, published by Sciendo

This work is licensed under the Creative Commons Attribution 4.0 International License.

Mots clés
Immunity from jurisdiction, Immunity, International Law Commission, Draft Article 7, Exceptions to immunity from criminal jurisdiction