Draft articles of the International Law Commission on immunity of State officials from foreign criminal jurisdiction (Advisory report No. 43, 2023)
On 3 June 2022, the International Law Commission adopted, on first reading, the draft articles on immunity of State officials from foreign criminal jurisdiction. On 7 November 2022, the Advisory Committee on Issues of Public International Law (CAVV) received a request from the Minister of Foreign Affairs to produce an advisory report on these draft articles.
[This advisory report has been published on June 30, 2023. The English translation has been available since October 10, 2023.]
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The topic of immunity of State officials from foreign criminal jurisdiction has been under consideration by the ILC since 2007 and is thus the topic that has been on its current programme of work the longest. To a greater extent than usual, the project has caused a deep division within the ILC, and a similar division is also apparent from the reactions of States to the work of the ILC which are communicated annually during the meeting of the Sixth Committee of the General Assembly of the United Nations. In essence, this division concerns the question of whether some of the draft articles set out positive law (lex lata) or a desirable direction for development of the law (lex ferenda).
Chapter 1 of the advisory report first briefly explains the main questions regarding the content and scope of the immunity of State officials from foreign criminal jurisdiction and also briefly outlines the context in which the draft articles were adopted on first reading. Chapter 2 of the report discusses in more detail each of the eighteen draft articles in turn. The CAVV has chosen to examine in depth the most important controversial points. On other points, the report is limited to a brief reflection or question, or to the observation that a given draft article or the accompanying commentary still lacks persuasiveness or requires further clarification. The advisory report concludes with an evaluation and some final remarks on the future of the project.