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

• Published in: Wroclaw review of law, administration & economics administration & economics, 2023-12, Vol.12 (2), p.100-121
• Main Author: Pereira Fontoura, Lucas Da Costa
• Format: Article
• Language: English
• Subjects: Draft Article 7; Exceptions to immunity from criminal jurisdiction; Immunity; Immunity from jurisdiction; immunity ratione materiae; International Law Commission
• ISSN: 2084-1264; 2084-1264
• DOI: 10.2478/wrlae-2023-0001

This article analyses the consequences of the International Law Commission (ILC) adopting Draft Article 7, about exceptions to immunity 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 to affirm the customary status of an exception to immunity 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.