General Assembly/6C: Statement by Legal Advisor Ambassador Ney on "Immunity of State Officials from Foreign Jurisdiction"
(statement as prepared for delivery:)
"Madam Chairwoman/Mr Chairman,
We thank Special Rapporteur Ms. Concepción Escobar Hernandez for her second report and the draft articles, focusing on the scope of the topic, the concepts of immunity and jurisdiction and the difference between immunity ratione personae and immunity ratione materiae.
We welcome and support the work. We welcome in particular the well-balanced approach.
Draft article 3 limits immunity ratione personae to the so-called troika of heads of state, heads of government and ministers of foreign affairs. There are good reasons for such a restrictive approach. However, there might be a very limited number of other high-ranking officials enjoying immunity ratione personae. Frequent travel as such would not be sufficient to include an official in this category, but particular exposure to judicial challenge might carry weight. In our view this question will certainly need further discussion.
Quite apart from the questions of the actual scope of immunity ratione personae, the latter must be seen together with the immunity enjoyed by other high-ranking officials when they are on official visits, based on the rules of international law relating to special missions. Both taken together ensure that States remain able to act. Hence, we welcome the respective clarification in the commentary to the draft article.
We also welcome the distinction made between immunity from foreign civil jurisdiction and immunity from foreign criminal jurisdiction and the ensuing focus of the project on the latter.
In her report the Special Rapporteur has alluded that in her view the topic should be approached from the perspective of both lex lata and lex ferenda.
In this regard Germany reiterates its position that the Commission should base its work on lex lata. The rules of immunity are predominantly rooted in customary international law. This is not without reason. Questions of immunity are politically highly sensitive as they refer to the delimitation and mutual respect of sovereign powers of States. Hence, a fine balancing of the sovereign rights of the States concerned is required. The rules of lex lata have proven to fulfil these prerequisites.
We look forward to the third report, which will focus on the normative elements of immunity ratione materiae and also on the issue of exceptions to immunity. In this regard we would like to underline the paramount importance of specifically identified opinio iuris and relevant state practice in any analyses of these issues.
Madam Chairwoman/Mr. Chairman,
Let me conclude by stressing that Germany continues to follow this project closely and advocates an approach based on the relevant current and past practice. We are ready to support the work of the ILC by providing relevant German practice and would like to encourage other States to do likewise, as the analysis of state practice is of particular importance for a better understanding of the subject and the successful outcome of the project.