CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION exception to immunity ratione materiae in respect of illegal acts performed in the territory of a foreign state would find its expression in the application of the rules on responsibility of states for internationally wrongful acts; at the same time, it would cover also illegal activities performed on the terrritory of a foreign state by officials enjoying immunity ratione materiae under relevant treaties. 7. Immunity ratione materiae and attribution of conduct to a state under international law As expressed in the memorandum on the topic of the immunity of state officials from foreign criminal jurisdiction, prepared by the Secretariat of the International Law Commission, “the question arises as to whether the criteria for distinguishing between the ‘official’ and ‘private’ conduct correspond to those which govern the attribution of conduct in the context of State responsibility for internationally wrongful acts. If immunity ratione materiae is viewed as an implication of the principle that conduct adopted by a State organ in the discharge of his or her functions is to be attributed to the State, there appear to be strong reasons for aligning the immunity regime with the rules on attribution of conduct for purposes of State responsibility”. 49 This approach was adopted by the first Special Rapporteur, 50 as well as, i.a. , by the House of Lords in the case Jones v. Saudi Arabia (in the context of immunity of state officials from foreign civil jurisdiction). 51 Referring to articles 4 (dealing with attribution of conduct of state organs to a State) and 7 (dealing with hands of the French authorities.”; see the Ruling of the UN Secretary General of 6 July 1986, UN Reports of International Arbitration Awards , Vol. XIX, pp. 211 and 213. 49 ILC, Memorandum by the Secretariat, op. cit . sub 8, pp. 102-103. The articles on responsibility of States for internationally wrongful acts do not explicitly provide the criteria for determining whether the conduct of a state organ is to be considered as performed in the discharge of the official functions of that organ. However, the commentary specifies that the determinative consideration is acting “in an apparently official capacity, or under colour of authority”; ILC, Memorandum by the Secretariat, op. cit. sub 8, pp. 102-103; ILC Yearbook , 2001, vol. II (Part Two), p. 42, para. 13. Draft article 2(f) of the definitions section of the proposed Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction (as provisionally adopted by the ILC) provides that “an ‘act performed in an official capacity’ means any act performed by a State official in the exercise of State authority”; ILC, Immunity of State officials from foreign criminal jurisdiction, Text of the draft articles provisionally adopted by the Drafting Committee at the sixty-sixth session, doc. A/CN.4/L.850 (2014). 50 Second report of the Special Rapporteur, op. cit. sub 8, p. 14 (“The Special Rapporteur considers it right to use the criterion of the attribution to the State of the conduct of an official in order to determine whether the official has immunity ratione materiae and the scope of such immunity. At the same time, the Special Rapporteur does not see objective grounds for drawing a distinction between the attribution of conduct for the purposes of responsibility on the one hand and for the purposes of immunity on the other. There can scarcely be grounds for asserting that one and the same act of an official is, for the purposes of State responsibility, attributed to the State and considered to be its act, while, for the purposes of immunity from jurisdiction, it is not attributed as such and is considered to be only the act of an official.”). 51 Jones v. Saudi Arabia, House of Lords, [2006] UKHL 26, ILR , Vol. 129, p. 629 et seq. ;

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