POL340Y5- Midterm Exam Guide - Comprehensive Notes for the exam ( 19 pages long!)

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POL340Y5
MIDTERM EXAM
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Pol340 tenth lecture - Immunities (concl.); national-international law and state responsibility
State immunity
Respect for independence and equality of a foreign state
Until recently regarding a definable person (sovereign)
Gradually replaced by abstract concept of state sovereignty
Classic case: Schooner Exchange v McFaddon
Restrictive doctrine: immunity for proceedings relating to functions expressing sovereign
authority (acta jure imperii) [vs. acta jure gestionis-private person acts]
Focus not on the intention, but the nature of the act. States have generally oriented themselves
towards restrictive doctrine
UN Convention on Jurisdictional Immunities of States and their Property (2004): comprehensive
code for (restrictive) state immunity
Schooner Exchange v McFaddon case (1812; US Supreme Court)
Two American citizens seized on high seas the Exchange vessel, claiming they owned it and were
entitled to it.
The United States Attorney argued that the ship (owned by France and converted into a war
ship) had been forced to the port of Philadelphia due to bad weather.
The Uited “tates “upree Court rejeted the seizure of the ship, arguig that it had etered
U.S. territory under an implied promise that while there, it would be exempt from the otherwise
exclusive national jurisdiction of the country.
Trendtex v Central Bank of Nigeria (CBN) case [1977; QB Queen’s Bench, UK]
In 1975, the CBN issued a letter of credit for Trendtex, a Swiss company for the price of cement
to be sold by Trendtex to an English company which had contracted with the Nigerian Ministry
of Defence. Trendtex bought the cement, supplied it to the company, and shipped some to
Nigeria.
Because of congestion at Nigerian ports, Trendtex failed to unload the cargo on time. In
addition, the Nigerian government introduced import controls on cement and instructed the
CBN not to pay for cement cargo not authorized under them.
Trendtex claimed payments and damages in a British court. The CBN argued dismissal as a
department of the state of Nigeria and therefore immune (its refusal to pay an act of a
Sovereign government not subject to the English courts). The Court rejected this claim, arguing
that CBN was not entitled to sovereign immunity because-based on its constitution-it had not
established that it was a department of the state of Nigeria, even though it had been established
by the state.
The case highlights the evolution of IL vis-à-vis sovereign immunity (more restrictive).
State immunity: exceptions to adjudication jurisdiction
Immunity from adjudication jurisdiction can be restricted by exceptions (not the case with
enforcement jurisdiction).
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Exceptions include private commercial transactions, non-contractual acts resulting in harm (e.g.
Voiotia case), etc.
But the Jurisdictional Immunities case (procedural plea by Germany irrespective of the
substance of the case) has set the tone.
Immunities from jurisdiction: state officials and organizations
(procedural) Types of Immunity :
Ratione Personæ: personal immunity to state officials because of their office. Positions of
importance necessitate immunity both of official and their private acts as office holders and
receive absolute immunity
Ratione Materiæ: functional immunity to state officials because of their acts. This immunity is
more narrow in scope, but wider in breadth, and, as attached to state affairs applies even after
departure fro oes offiial post. “tate offiial ats reai oered.
NB. Either can be waived by sending state
IL and Domestic Law
Netherlands
-(most extreme case), Italy, Portugal, Belgium: monist
Germany: moderately monist
-IL integral part of domestic law (e.g. European Conventions) as long as they do not affect the
Constitution. Hence, while regarded superior to domestic legislation, control of treaties rests
with Constitutional Court
France: mixed
-IL also operate as domestic law, but constitutionally the President and (for important ones) the
Parliament ratify treaties.
United States: mixed
-IL applies directly in US courts in some but not all cases. US
Constitution acknowledges treaties as part of US domestic law, without Congressional or
Presidential incorporation. Yet, Supreme Court has ruled some treaties not "self-eeutigi.e.,
directly effective so that one can rely on it as a source of rights at national level) and as such
must be implemented by statute before given effect
Canada: mixed (monist in Customary IL, dualist in Treaties)
-Customary IL considered part of the law of the land
-Treaties have to become domestic law first (to an extent)
-IL helps interpret the Charter of Rights and Freedoms and is often used as an interpretive tool
(e.g. Suresh v Canada, torture case)
Russia: monist
-Unlike Soviet times, IL and treaties higher status than domestic law
Brazil: moderately monist
-Controversies, as normally treaties are signed by the president and then have to be approved
by the Congress (Art. 41). Yet, the president can sign treaties (Art. 84) which can make the
presidential decree final (Brazil Supreme Court agrees)
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