International Criminal Law
166
proceedings. Thus, in
Buck v AG,
152
the Court of Appeal refused to make a declaration
on the validity, or not, of the Constitution of Sierra Leone. Other similar sovereign
acts which would be excluded from the consideration of national courts have
included governmental acts dealing with purely internal issues or issues pertinent
to a State’s external affairs.
153
These issues have fallen under the umbrella of non-
justiciable acts and have precluded national courts from asserting their jurisdiction.
Immunity, on the other hand, refers to those situations where, although the court
would normally enjoy competence over a particular case, it is averted from doing so
because one of the litigants is a sovereign State or a legitimate extension thereof.
It seems doubtful, however, that all traditional non-justiciable acts are beyond
the ambit of national courts, since, if the prevention or punishment of specific conduct
is classified as an
erga omnes
obligation, it necessarily follows that if a violation of
such a norm were embodied in a parliamentary act, the courts of a third State would
be under an obligation to declare that act unobservable in the forum. For example, if
a case comes before the courts of State A, whereby an alien has acted in accordance
with a law in State B allowing the practice of torture, the courts of State A may declare
that law to be contrary to international law and invalidate any legal effects arising
within the territory of State A. In
Oppenheim v Cattermole,
for example, one issue that
arose was whether a decree adopted in Nazi Germany in 1941 depriving Jews who
had emigrated from Germany of their citizenship should be recognised by the English
court. Lord Chelsea pointed out that the courts should be very reluctant to pass
judgment on foreign sovereign acts, but because the Nazi law was not only
discriminatory but deprived German Jews of their property and citizenship, ‘a law
of this sort constitutes so grave an infringement of human rights that the courts of
this country ought to refuse to recognise it as a law at all’.
154
Until very recently, States could not be sued at all before the courts of other States.
This rule of absolute immunity rested on the customary assimilation of the sovereign
and its officials with the represented State, regardless of the function served in each
Do'stlaringiz bilan baham: