Jurisdictional countermeasures: The use of jurisdiction and immunity for the implementation of international responsibility

Thesis

This thesis examines whether breaches of the rules of jurisdiction and immunity can be justified as lawful means for the implementation of international responsibility in the form of countermeasures. Countermeasures are circumstances precluding the wrongfulness of conduct that seeks to induce compliance with the obligations of cessation, reparation, and non-repetition stemming from the commission of internationally wrongful acts. First, the thesis surveys state practice in four subject areas: prescriptive jurisdiction, adjudicative jurisdiction, state immunity, and immunity of state officials. For each area, it determines the general rules of customary international law and identifies state practice that is prima facie inconsistent with these rules. It shows that, while much of this practice is potentially in breach of the rules of jurisdiction and immunity, it frequently occurred in response to prior wrongful acts of other states with a view to inducing them to comply with their international obligations. For this reason, this practice presents the structure of potential countermeasures. These countermeasures, which affect the rules of jurisdiction and immunity, are collectively referred to as ‘jurisdictional countermeasures’. Next, the thesis examines the function that the countermeasures framework serves with respect to the customary rules of jurisdiction and immunity. It demonstrates that jurisdictional countermeasures may act as a safety valve allowing for temporary suspension of these rules in exceptional circumstances, and as a second line of defence when states seek to bring about a change in customary international law. Then, the thesis examines the legality of jurisdictional countermeasures by testing them against the customary requirements of countermeasures as codified in the ILC Articles on State Responsibility. It shows that several measures affecting jurisdiction and immunity are capable of meeting these requirements. Finally, the thesis assesses some normative implications of recognising jurisdictional countermeasures.

Authors: Franchini, D

• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: Jurisdiction; State immunity; Countermeasures; Universal jurisdiction; State responsibility; Sanctions; Domestic courts; Sovereign immunities
• Subjects: International law