Jurisdiction, Immunity, Legality, and Jus Cogens

AbstractImmunities in international law expose multifaceted tensions between goals of international stability and legal accountability. This Article seeks to clarify the law in this area by providing conceptual and doctrinal coherence to relationships between immunity and jurisdiction, it first explains that foreign sovereign immunity and official status-based immunity are jurisdictional in that they block the exercise of adjudicative jurisdiction by foreign states' courts. The Article then explains that these immunities do not block the prescriptive jurisdiction of foreign states' laws to regulate conduct, even conduct inside other states, if a basis of prescriptive jurisdiction exists in international law.The Article argues that this view of the relationships between immunity and jurisdiction makes sense on, and holds two important consequences for, the current state of the law. First, the relevant law-in-time for gauging these immunities is the law in existence when a court determines whether to entertain suit, not the law in existence at the time of the conduct underlying the suit. As a result, the viability of claims arising out of the same underlying facts changes along with changes in the law of immunity. Second, this view gives the immunity doctrines rule-of-law coherence by avoiding legality problems or retroactive application of the law any time a post-conduct trigger like a waiver or change in status removes immunity.Last, the Article assesses the law of conduct-based immunity and, in particular, arguments that conduct-based immunity does not attach for violations of jus cogens, or peremptory norms of international law. Compared with the relatively settled laws of foreign sovereign and status-based immunities, the law of conduct-based immunity is in flux. Because customary international law arises from state practice and opinio juris, arguments used to avoid direct collisions between other types of immunity and jus cogens do not necessarily extend by analogy to conduct-based immunity, which is its own distinct doctrine under international law. Most prominently, arguments that foreign sovereign and status-based immunities do not come into direct conflict with, and thus do not yield to, jus cogens- because those immunities address amenability to suit while jus cogens address substantive prohibitions under international law-may not apply when the immunity at issue is conductbased. For instance, conduct-based immunity may be understood as a substantive, as opposed to a jurisdictional, defense on the current state of the law, especially in criminal suits. In which case, conduct-based immunity does come into direct conflict with, and yields to, jus cogens. The Article concludes that the present state of flux in the law of conduct-based immunity may also be indicative of immunity norms bending to accountability norms where the law is unsettled.Table of ContentsI. Introduction 55II. Various Immunities 57III. Immunity and Jurisdiction 59IV. Foreign Sovereign and Status-Based Immunities 60V. Retroactivity and Legality 66A. Retroactivity and the Applicable Law in Time 68B. Legality and Rule-of-Law Coherence 711. Waiver 712. Change in status 723. Other forums …