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CYIL 7 ȍ2016Ȏ
On the other hand, the former proposition would mean that the treaty based
immunity
ratione materiae
is implicitly limited by the exception(s) to general customary
immunity
ratione materiae
(which are discussed in more detail below). Arguments in
favour of this proposition of one and single regime of immunity
ratione materiae
might
be as follows: The differentiation between immunity
ratione materiae
contained in
treaties (and analogous customary norms), on the one hand, and immunity
ratione
materiae
of all other state officials defined in customary international law, on the
other hand, is based only on the fact of different places of business. The treaty-based
immunity
ratione materiae
protects the exercise of official conduct of a small circle
of state officials performing their functions abroad, in the territory of a foreign state.
These officials are directly “exposed” to the jurisdiction of foreign states, which lead
states to expressly regulate their immunity
ratione materiae
in relevant treaties. On
the other hand, the vast majority of state officials, protected by general customary
immunity
ratione materiae
, perform their official functions in their home state, and,
therefore, their official acts, covered by the immunity, will, in most cases, have no
relevant connection with the jurisdiction of any foreign state. Therefore no explicit
regulation of their immunity
ratione materiae
in treaties was regarded as necessary.
However, the fact that immunity
ratione materiae
of one specific sector of state
officials is expressly reflected in treaties does not seem to justify any substantive
differentiation between this treaty based immunity
ratione materiae
and customary
immunity
ratione materiae
of all other state officials.
What would be further consequences of this concept? Immunity
ratione materiae
protects all state officials in respect of their official acts during and after their term of
office with
erga omnes
effect. The same applies with regard to state officials performing
their functions abroad (diplomats etc.), who are additionally, during their term
of office abroad, protected by immunity
ratione personae
. Their immunity
ratione
materiae
, applicable during and after their term of office, has also
erga omnes
effect;
however, this effect is mostly only theoretical, since they perform their functions in
(and have to be protected primarily against) the jurisdiction of one concrete, receiving
state (this fact is reflected in relevant provisions of treaties mentioned above). And
it also means that any existing exceptions to immunity
ratione materiae,
examined
below
,
should limit also immunity
ratione materiae
defined in relevant treaties. If
treaty-based immunity
ratione materiae
would be a different “species” and would not
be limited by the same exceptions as general immunity
ratione materiae
of all state
officials,
12
it would create a paradoxical situation when a crime which is subject to
an exception to general customary immunity
ratione materiae
(namely exception for
officials: he or she is entitled to the general immunity
ratione materiae
of state officials which derives from
state immunity. Therefore, when in a third state, a former diplomat is not entitled to immunity
ratione
materiae
with respect to prosecution for international crimes.”;
ibid
. pp. 850-851).
12
For possible application of so called “territorial exception” to immunity in respect of treaty-based
immunity
ratione materiae
see further below.