David W.’s last argument is convincing and well-argued, but it simply does not meet the case here, so it is moot. No such position as alleged in the last paragraph has been taken by any “defendant” either. (I still like David’s posting for didactic purposes though, because it very well outlays and colours the issues surrounding functional immunity / immunity of diplomatic acts; which are hardly involved here. In the decision, the secondarily discussed “full immunity” for not many, but still a number of residing higher-ranking officials and bureaucrats is a *granted” imunity that is bilaterally conceded for reasons of expendiency and courtesy, in the form of an individual approval. It is not the full personal immunity of the heads of only a few highest-level international organisations and agencies, which would be DSK’S case.)
Georg Felis has aptly commented on the political aspect of the whole affair. I am inclined to concur with his assessment, on the factual side.
- Contrary to the musings of the last poster, a status of immunity under international law is firstly to be recognised by the federation that represents the US of A jointly, not by an individual state.
- The second dogmatic step is how a state will implement this finding which *is* however binding it, and what measures it will take or not take to honour it.
- How and by which means – thirdly – the federal government may coerce a recalcitrant state, is a constant topic of US constitutional law since centuries, into which I am not willing to delve. Suffice that if the state of Texas chose to arrest and try the ambassador of Lighter Ruritania (I shall this time use the lovely sister state, it’s so endearing) for crimes against Texan sexual crime laws with his own wife in the privacy of his own bedroom, all those outdated and thoroughly un-American “diplomatic immunities” and similar ho-hum notwithstanding, you can expect that the federal government *will* intervene. I shall leave it to US constitutionalists to explain or debate in which form this is or can be done, my viewpoint here is strictly international law.
Nathan’s animadversion is valid. International law is not cast in iron. It is neither writ in water. A strong state or a rogue state (the two may be identical, but need not) can more easily disregard it than a weak and dependent state. What Nathan here challenges – and such a challenge is eminently licit – is the concept of personal immunity as such. It has been abused in the past, but its foundation lies not in personal privilege, and its root lies in a no longer feudal political system (as I wrote, post-1648). The extension of the – in my opinion still utterly necessary and indispensable – personal immunity from ambassadors to heads of some international organisations is necessary, even via an argument of a minore a maius. The reason is protection of an institution, and a multi-party powerful organisation is a lot more prone to attacks than, say, a Pacific island state or the co-principality of Andorra. This is actually far more true for the IMF specifically than for many other organisations of lesser impact and weight.
And this also allows to answer to Nathan’s last rhetorically questioning sentence properly. It is indeed not the purpose of *international law* to protect helpless poor black young chambermaids against the wanton attacks of lecherous rich white old satyrs. It is the purpose of international law (including the régime of immunities) to protect institutions and their functionality – even if they were sadly to be headed by lecherous old satyrs (not any longer, thank the Lord – he has just resigned).
Ian is the only one who has properly pointed out the weakness inherent in my position, and I am reversely properly indebted to him for that. If one finds that the USA have chosen and still choose to not become a signatory of an otherwise near-universally acclaimed treaty, then US courts will indeed be not very likely to apply such treaty domestically. Notably not if younger concurrent national legislation makes clear – such as Ian quotes – that the very issue in question is recognized domestically only in a much watered-down form. (Side note: I am not sure why Common Lawyers seem have such difficulties in distinguishing the two levels of a vigent law and an applied law, or in distinguishing what *is* international law firstly , and what its national reflection or application is secondly. We are discussing the former here. Appalachia suas habet leges.)
Back to the inherent weakness of my argument. If the treaty has not been domesticated, then the only claim for its effect on a national (federal and state court) level, would be to demonstrate that is has – firstly – become customary international law, and that – secondly – the national legal régime provides for such reception and recognition of customary international law.
There is a temptation – and dare I say a danger – to projects one’s very own favourite legal concepts and fads of the year into such a wish-definition of what should constitute customarily accepted international law. Swings, moods and political correctness (who wants to protect a torturing tyrant’s minions after his reign of terror is over? Keitner certainly not, as her amicus curiae brief before the Supreme Court in Samantar v. Yousuf has made clear) can influence that.
I actually believe that great reticence and patience ought to be applied before one argues a legal institute to have become part of the arsenal of customary international law, but maybe this my position might be too conservative…?