Immune “orthodoxies”? You wish

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In this post, Dr Alexander Orakhelashvili responds to some points in Professor O’Keefe’s review of Cambridge Handbook of Immunities and International Law

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A recent issue of European Journal of International Law contains a review the Cambridge Handbook of Immunities in International Law (T Ruys, N Angelet & L Ferro ed. CUP 2019) by Professor Roger O’Keefe of Bocconi University in Milan (formerly of law faculties and UCL and Cambridge). Making an overall positive assessment of the entire handbook, the reviewer takes issue with my own contribution to it, and states in relation to it that, “In contrast to the tenor of the rest of the collection, at least one chapter, as expertly knowledgeable and rhetorically bracing as it is, might have found a more natural home in the proceedings of the Flat Earth Society.” He then proceeds to take an issue with my conclusion that the international legal system of today includes no general customary law obligation of States to grant immunities to foreign States. He asserts that “It seems that all those states and international courts and tribunals that would beg to differ are labouring under false legal consciousness.” He further makes a comment, ostensibly at least going beyond my own contribution that “this tolerance of heterodoxy and the volume’s more basic conception pose the question of what is meant these days in English-language academic publishing by a ‘handbook’, a designation traditionally indicative, at least in the continental tradition, of an orthodox, authoritative, synthetic, comprehensive, systematic, accessible and comparatively concise, if not necessarily short, vademecum devoted to the essentials of a field of learning and written and organized, usually by a single author, with an eye to utility.”

What could I say regarding the above blanket assertions? Every reader of my own contribution to the Cambridge Handbook will find in it an extensive overview of State and judicial practice; they will also see an explanation of why a customary international legal rule on State immunity is impossible to exist (regardless of some judicial and academic assertions to the opposite effect), namely because standards of immunity applied in various jurisdictions are nowhere near to being uniform, and contain a number of statements denying that a State is under legal obligation to afford immunity to a foreign State; they will have further seen an explanation that the 2004 UN Convention on Jurisdictional Immunity to which O’Keefe has, together with Professor Christian Tams of Glasgow University (also a book review section editor where O’Keefe’s review is published) has co-edited a large commentary and which writers including Lady Hazel Fox hoped would streamline State practice, has not entered into force and produced no such effect. Is it not, after all that, rather counterfactual to denote these statements of the obvious as “heterodox”? Surely customary rules of international law do not derive from some abstract sensibility of solutions and outcomes envisaged, but from generality of State practice which I showed in this case is manifestly lacking.

Moving to issues of “orthodoxy” and “heterodoxy”, more suited to religion than law, it will be recalled that Professor O’Keefe has advocated the idea that the UN International Law Commission should not admit what he has denoted an “exception” from the otherwise general rule of State official immunity in criminal proceedings with regard to core international crimes. The ILC has endorsed the opposite rule on that matter. He has further submitted to the International Criminal Court that heads of State who are not parties to the Court’s Statute should enjoy immunity from proceedings before the Court, and that rules of jus cogens and obligations erga omnes were not relevant in situations like that. Again, the Court proceeded to adopt the opposite solution. By what criteria, and on whose authority, one wonders, could it be plausibly judged that O’Keefe’s views are “orthodox” and mines are “heterodox”?

I have always regarded a healthy academic debate as something that excludes preconceptions, relies on evidence and avoids attaching a priori labels to anything or anyone. I further remain fully confident that a great majority of readers in this area will be guided by identical priorities.


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