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Peremptory Norms and State Immunity

Alexander Orakhelashvili

in Peremptory Norms in International Law

This chapter deals with the impact of jus cogens on State immunity. It begins by examining the scope of State immunity, then addresses sources of law to establish whether State immunity is really ... More

This chapter deals with the impact of jus cogens on State immunity. It begins by examining the scope of State immunity, then addresses sources of law to establish whether State immunity is really accepted in international law as a norm or principle. The immediate impact and primacy of jus cogens over immunities is considered. The chapter covers immunity of States and their officials, and immunity from execution. As a follow-up of this chapter, the articles by this author in 49 German YbIL (2006) and 18 EJIL (2007) should be consulted.Less

Functional Immunity

Rosanne Van Alebeek

in The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law

Functional immunity of foreign state officials is typically approached as a consequence of the rule of state's immunity. This in turn, creates questions on the scope of the rule of state immunity in ... More

Functional immunity of foreign state officials is typically approached as a consequence of the rule of state's immunity. This in turn, creates questions on the scope of the rule of state immunity in relation to the foreign home state. This chapter argues that functional immunity should not be directly related to the immunity of state and the suggestion that state immunity rules determines the position of (former) state officials before foreign national courts is misleading. This chapter provides the nature and substance of the rules determining the competence of national courts over (former) foreign state officials in order to determine the tools necessary for the development of the state's law and policy arguments.Less

Human Rights and the Immunities of State Officials

Philippa Webb

in Hierarchy in International Law: The Place of Human Rights

This chapter examines the norm conflict that arises when a state official is accused of serious human rights violations in the court of another state. The human rights norm militates in favour of ... More

This chapter examines the norm conflict that arises when a state official is accused of serious human rights violations in the court of another state. The human rights norm militates in favour of holding individuals accountable for violations, regardless of their position, while the sovereign equality and effective performance norm favours upholding immunity. Drawing on the case law of twenty-four jurisdictions, the chapter identifies the circumstances in which courts decide that human rights prevail over immunities, and vice versa. It reveals various conflict avoidance techniques and sets out the inconsistent treatment of jus cogens. It concludes that the case law does not yet indicate the emergence of a human rights-based hierarchy within international law.Less

Personal Immunity

Rosanne Van Alebeek

in The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law

One of the benefits a state official possesses is a comprehensive personal immunity from the jurisdiction of foreign national courts during their term of office. Diplomatic and head of state immunity ... More

One of the benefits a state official possesses is a comprehensive personal immunity from the jurisdiction of foreign national courts during their term of office. Diplomatic and head of state immunity rules apply independently from the essential competence of the court. This chapter examines several controversial issues regarding the material and formal scope of diplomatic and head of state immunity and the personal immunity rules applicable to diplomatic agents and heads of state. The lack of essential competence, absence of personal responsibility, and immunity from jurisdiction is also analyzed. The chapter also looks at its relation with the development of international human rights law and international criminal law.Less

Sidelining the States

Adam B. Cox and Cristina M. Rodríguez

in The President and Immigration Law

This chapter considers how federalism has played an important role in immigration enforcement and challenged presidents of both parties, thus helping to structure national debates over the place of ... More

This chapter considers how federalism has played an important role in immigration enforcement and challenged presidents of both parties, thus helping to structure national debates over the place of immigrants in American society. The cooperation of state and local officials turns out to be critical to the project of locating and deporting immigration violators. Today, local officials work as formal and informal partners to the federal government, serve as sources of information and bureaucratic expertise, and provide personnel essential to federal enforcement efforts. The integration of federal and state officials into a single immigration enforcement bureaucracy has expanded and complicated the President’s power over immigration law. Particularly when immigration federalism has taken a partisan turn, powerful incentives have arisen for the President to co-opt, crush, or otherwise control local initiatives in order to push immigration policy in the administration’s preferred direction. Both the Obama and Trump eras provide vivid examples of this centralizing tendency. Presidential efforts to consolidate power in these circumstances has never been complete, however. Because the Executive Branch cannot escape its bureaucratic reliance on local institutions, the delegation of meaningful power to nonfederal officials remains part of the system whether presidential administrations like it or not.Less

The Impact of the European Convention on Human Rights

Fiona Leverick

in Killing in Self-Defence

This chapter examines the impact of Article 2 of the European Convention on Human Rights (the right to life) on the law of self-defence. It concludes that Article 2 clearly does not permit lethal ... More

This chapter examines the impact of Article 2 of the European Convention on Human Rights (the right to life) on the law of self-defence. It concludes that Article 2 clearly does not permit lethal force to be used in defence of property. It is also argued that any jurisdiction (such as England and Wales) that permits self-defence as a complete defence where the accused held an unreasonable belief that force was necessary breaches Article 2. This is clearly the case where the force was used in error by a state official. The duty imposed on the state by article 2 to adequately protect its citizens from threats to their life means that the law should not permit an unreasonable mistake to ground a complete defence more generally — even where the accused is a private citizen.Less

Revolution: Amnesia and Prohibition

Michael E. Meeker

in A Nation of Empire: The Ottoman Legacy of Turkish Modernity

This chapter describes how the nationalist revolution succeeded in undermining the legitimacy of local elites, even as state officials continued to rely on them for governmental assistance, and also ... More

This chapter describes how the nationalist revolution succeeded in undermining the legitimacy of local elites, even as state officials continued to rely on them for governmental assistance, and also considers the way two Oflu authors tried to understand the dislocated periodization that occurred during the late 1940s.Less

Dividing the Poor

Mun Young Cho

in The Specter of "the People": Urban Poverty in Northeast China

This chapter examines the processes of differential impoverishment: why and in what ways the urban poor and rural migrants in Hadong have reinforced the distinctions between them rather than ... More

This chapter examines the processes of differential impoverishment: why and in what ways the urban poor and rural migrants in Hadong have reinforced the distinctions between them rather than recognized their commonalities. In particular, the chapter scrutinizes the workings and outcomes of “dividing the poor,” which is one governmental intervention for recruiting from the poor an army against the poor. China's urban poor are not merely excluded from the wider society; they are prompted to voice their grievances not against the state but against other poor people. Thus impoverished urbanites and rural migrants in Hadong are divided by themselves as well as by state officials.Less

Cataloging the Social World

Ian F. Mcneely

in The Emancipation of Writing: German Civil Society in the Making, 1790s-1820s

This chapter addresses the state officials and local citizens who drew on a host of powerful Enlightenment ideas—encyclopedism—to portray and depict this new civic landscape in the statistical ... More

This chapter addresses the state officials and local citizens who drew on a host of powerful Enlightenment ideas—encyclopedism—to portray and depict this new civic landscape in the statistical almanacs. Leopold Krug, Philipp Ludwig Heinrich Röder, and Christian Heinrich Niemann speak to both the limitations and potential of statistical topography as it was practiced at the end of the Enlightenment, the field having exploded the boundaries of the old “science of state” but lacking institutional organization for its efforts. The Biedermeier world animating the otherwise inert and discrete findings of the county almanacs were a small, provincial one, but also thoroughly modern in accommodating a negative capability conjoining diverse types of knowledge in a single worldview.Less

How to Limit Immunity of State Officials from Foreign Criminal Jurisdiction

Pavel Šturma

in How International Law Works in Times of Crisis

This contribution aims to shed more light on the question whether international law on immunities is in crisis and, if so, how to overcome the crisis. It will not deal with all kinds of immunities ... More

This contribution aims to shed more light on the question whether international law on immunities is in crisis and, if so, how to overcome the crisis. It will not deal with all kinds of immunities under international law but will focus only on immunity of state officials. Immunity of state officials from foreign criminal jurisdiction is governed by customary international law whose exact scope is often debatable both in theory and in practice, particularly in connection with the international effort to end impunity for the most serious crimes under international law, such as genocide, war crimes, and crimes against humanity, including torture and enforced disappearances. Although state practice and case law of the International Court of Justice supports the absolute immunity ratione personae of the highest officials, such as head of state, head of government, and minister of foreign affairs, as long as they are in office, the situation of immunity ratione materiae that protects the official acts of other state officials seems to be less clear. There are good arguments in favour of exceptions to such immunity, at least in respect of crimes under international law.Less

“Whatever Requisition the President Shall Make” and the Federal Duties of State Executives

Saikrishna Bangalore Prakash

in Imperial from the Beginning: The Constitution of the Original Executive

This chapter discusses the relationship of the executive branch and the federal state executive. The federal state executive is responsible for conducting federal legislative elections and deciding ... More

This chapter discusses the relationship of the executive branch and the federal state executive. The federal state executive is responsible for conducting federal legislative elections and deciding how to appoint presidential electors. The Constitution obliges them to take orders from the chief executive in enforcing federal law. The president can also ask for the help of the state executive to call upon militia, given their access to a large roster of state officials. However, relying upon state officers somewhat restricts the president's powers. While state officers generally act as subordinates, recognizing the supremacy of federal law and the chief executive, they occasionally act on their own accord. The president has no power to force them to obey his instructions and has no way of circumventing them.Less

Nixon v. Shrink Missouri Government PAC

in The Constitution of Electoral Speech Law: The Supreme Court and Freedom of Expression in Campaigns and Elections

This chapter examines Nixon v. Shrink Missouri Government PAC. It considers the state of Missouri's effort to establish campaign contribution limits for state officials paralleling those upheld in ... More

This chapter examines Nixon v. Shrink Missouri Government PAC. It considers the state of Missouri's effort to establish campaign contribution limits for state officials paralleling those upheld in Buckley v. Valeo. Challenging the $1,000 limit ($1,075, as applied in this case), Shrink Missouri Government PAC argued that the caps on contributions unconstitutionally restricted its ability to support its preferred Republican candidate in the primary election for state auditor. But for the Court, the state had shown that the limits were necessary to diminish (the “appearance” of) “corruption,” to encourage more positive perceptions of the political process, and even to facilitate particular forms of speech (e.g. time as opposed to money) in the electoral marketplace of ideas.Less

The Politics of Perception: Cory Booker in Local and State Affairs

Andra Gillespie

in The New Black Politician: Cory Booker, Newark, and Post-Racial America

This chapter discusses Booker's relationship with local, county, and state officials. Just as residents have decisive impressions of the mayor, Booker's colleagues in elective office also judge him ... More

This chapter discusses Booker's relationship with local, county, and state officials. Just as residents have decisive impressions of the mayor, Booker's colleagues in elective office also judge him and decide each day whether to cooperate with him. Thus, any strain in the working relationship among Booker and his colleagues can obstruct the passage of local and state legislation, thereby robbing Booker of the needed support should he decide to run for higher office. The chapter further explains how elites' and officials' respect for Booker can garner support for his allies when they run for office. Otherwise, his endorsement will carry little weight.Less

Thirty Years of Reform

Lily Chumley

in Creativity Class: Art School and Culture Work in Postsocialist China

This chapter begins with an oral history of the Central Academy of Fine Arts, describing how the school changed over the course of gaigekaifang. Gaigekaifang is often referred to in English as ... More

This chapter begins with an oral history of the Central Academy of Fine Arts, describing how the school changed over the course of gaigekaifang. Gaigekaifang is often referred to in English as “reform” (gaige), putting the stress on the structural adjustments that fomented change, while kaifang roughly means “opening up.” This institutional history is given a broader social context through interpretations of three art exhibitions commemorating the thirtieth anniversary of reform and opening up in 2008. These exhibitions offer perspectives on the legacies of socialism and the novelties of reform that are variously aligned with or critical of official state narratives, showing how contemporary Chinese dreamworlds contest with one another.Less

State Secrecy: A Venetian Virtue

Ioanna Iordanou

in Venice's Secret Service: Organizing Intelligence in the Renaissance

This chapter discusses the culture of secrecy that the Council of Ten distilled within and beyond the walls of the Doge’s Palace. This culture was perpetuated through a slew of formal regulations on ... More

This chapter discusses the culture of secrecy that the Council of Ten distilled within and beyond the walls of the Doge’s Palace. This culture was perpetuated through a slew of formal regulations on the instrumentality of secrecy, especially official state secrecy, for the affairs and, by extension, the security of the Venetian state. The demand for secrecy spread across the dominion and permeated all echelons of Venetian society. Using social theorizations of secrecy, the chapter shows how secrecy, as the ongoing process of intentional concealment, enabled social interactions amongst individuals of diverse social standing who, without the shield of concealment, would not have been able to interact. In this respect, secrecy functioned as a vehicle of knowledge exchange, creating a dynamic and enduring relationship between the government and the governed. Ultimately, official state secrecy became a vital tool of statecraft and political control for the Council of Ten.Less

Renaissance Venice’s Intelligence Organization

Ioanna Iordanou

in Venice's Secret Service: Organizing Intelligence in the Renaissance

This chapter analyses the organizational structure of Renaissance Venice’s intelligence service as it was headed by the Council of Ten and composed of geographically dispersed state representatives ... More

This chapter analyses the organizational structure of Renaissance Venice’s intelligence service as it was headed by the Council of Ten and composed of geographically dispersed state representatives and their state officials, military and naval men, in-house and expatriate white-collar state functionaries, and casually salaried spies and informants. The chapter reviews the organizational layout of Venice’s state intelligence apparatus, which included formally appointed diplomats and state officials and a large part of the Venetian state bureaucracy, including the secret chancery. There is a particular focus on correspondence as a vital tool of managing human action and performance at a distance, enabling the administration of large-scale, geographically dispersed organization of work. The chapter also shows how Venice’s intelligence organization was sanctioned through regulations that not only determined uniform professional operations and relationships but, importantly, legitimized the Ten’s power of command as Venice’s spy chiefs.Less

Epilogue : The Andreas Era

James Edward Miller

in The United States and the Making of Modern Greece: History and Power, 1950-1974

This chapter focuses on an event on August 5, 1974, in which Henry Kissinger addressed a meeting of disgruntled State Department officials and defended his handling of the Cyprus crisis. The crisis ... More

This chapter focuses on an event on August 5, 1974, in which Henry Kissinger addressed a meeting of disgruntled State Department officials and defended his handling of the Cyprus crisis. The crisis left Kissinger's diplomacy in tatters but not his self-confidence. Failure to preserve peace and stability in the eastern Mediterranean, the secretary of state was soon explaining, was the responsibility of everyone except himself. He rewarded those junior State Department officials who had warned him of the dangers that his actions were creating with a systematic effort to destroy their careers. The secretary refused to provide Congress with a complete account of his actions and pointed the finger of blame for the Cyprus mess at the Democratic majorities in the House and Senate, which, after years of supinely accepting Nixon administration policies, finally nerved themselves to take back part of their constitutional role in the management of foreign affairs.Less