Immunities

by

Lorna McGregor

• LAST REVIEWED: 23 March 2012
• LAST MODIFIED: 23 March 2012
• DOI: 10.1093/obo/9780199796953-0027

Introduction

International law characterizes the immunities of states and their officials as procedural rules that prevent the adjudication of a dispute in a particular forum without speaking to the merits of the claim or absolving any underlying responsibility of the state and its officials. Immunity may also apply at the enforcement stage, to prevent the execution of a judgment rendered against a state or its officials. While sometimes conflated, international law sets out distinct categories of immunities that are justified for different reasons and available to varying degrees. With the exception of diplomatic immunity and the immunity of international organizations, most immunities are sourced in customary international law. These immunities are separated into various types, such as immunity of the state (or “sovereign” immunity, as it is sometimes called); immunity ratione materiae (“subject-matter” immunity); immunity ratione personae (“personal” immunity) of state officials; diplomatic immunity, as a special treaty-based regime; and the immunities of international organizations; which are usually provided in multilateral or bilateral agreements. As set out throughout this bibliography, immunity is an area that generates a significant amount of practice, with the consequence that the literature on immunity tends to appear in clusters, following litigation or law reform in a particular state or internationally.

General Overviews

Beyond Badr 1984, and Fox 2008, which is the seminal and most authoritative text on immunities, there are very few general overviews of the international law on immunity as a whole. This is particularly the case, as noted in the introduction, because of the tendency for the literature to develop around specific case-law or law-reform initiatives. Other monographs are beginning to appear, however, such as van Alebeek 2008, with others currently in preparation, such as Craig Barker’s Immunities from Jurisdiction in International Law, to be published in 2012.

• Badr, Gamal Moursi. State Immunity: An Analytical and Prognostic View. The Hague and Boston: Martinus Nijhoff, 1984.

  One of the earliest monographs on the international law on state immunity.

• Fox, Hazel. The Law of State Immunity. 2d ed. Oxford: Oxford University Press, 2008.

  A comprehensive treatment of state immunity is the main focus of the book, but it also includes a detailed chapter of seventy-two pages on the immunities of heads of state, diplomats, armed forces, and international organizations. Frequently reviewed as a classic text, and rightly so, this work is essential for academics, practitioners, and students.

• van Alebeek, Rosanne. The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law. Oxford: Oxford University Press, 2008.

  Interesting recent monograph on the different immunities under international law, with particular attention given to the immunity of state officials for crimes under international law and human rights violations. Reviewed by Roger O’Keefe in Leiden Journal of International Law 23.4 (2010): 955 – 970.