Abstract:
Actually, State immunity is a principle of customary international law. Barring a satisfactory
explanation as to the meaning of ‘State’ and ‘immunity’, which would generate still more
questions, this statement encompasses two propositions: first, that State immunity is a principle of
international, as opposed to national or municipal, law; and secondly, that the relevant rules,
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insofar as can be reasonably demonstrated, are customary in nature; that is, they have come into
existence without the aid of international treaties of relatively universal applicability. State
immunity is a doctrine rooted in principles of Public International Law that a sovereign state
would have its sovereignty infringed if, without its consent, it became subject to the jurisdiction of
the national courts of another sovereign state. Considering that the jurisdictional immunities of
States and their property are generally accepted as a principle of customary international law and
Believing that an international convention on the jurisdictional immunities of States and their
property would enhance the rule of law and legal certainty, particularly in dealings of States with
natural or juridical persons, and would contribute to the codification and development of
international law and the harmonization of practice in this area, It’s also Affirming that the rules
of customary international law continue to govern matters not regulated by the provisions of the
present Convention. Most of the article deals with functional immunity (immunity ratione
materiae). We take the view that this type of immunity does not apply in the case of domestic
prosecution of foreign officials for most international crimes. However, we reject the traditional
arguments which have been put forward by scholars and courts in support of this view. Instead we
consider the key to understanding when functional immunity is available lies in examining how
jurisdiction is conferred on domestic courts.
