The jurisdictional immunities of visiting forces under public international law : a case study of the European Security and Defence Policy

• Main Author: Sari, Aurel
• Published: University College London (University of London) 2008
• Subjects: 340
• Online Access: http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.505221

The purpose of this thesis is to identify the rules of public international law governing the jurisdictional immunities of the armed forces of one State present in the territory of another State with the latter’s consent. The thesis is divided into three main parts. The first part considers the general principles of international law governing the exercise of jurisdiction over visiting armed forces and describes the historical evolution of the jurisdictional immunities enjoyed by such forces. The second part examines the legal arrangements adopted by the European Union and its Member States in order to define the immunities of personnel acting in the context of the European Security and Defence Policy in the form of a case-study. The third part draws together and assesses the findings of the preceding-two parts. The jurisdictional immunities of visiting armed forces have received insufficient attention in the academic literature, and considerable ambiguities remain concerning the current position of customary international law in this area. The thesis argues that it is possible to identify a separate ‘law of visiting forces’ in customary international law, though it would go too far to consider this law a self-contained regime along the lines of the law of diplomatic immunity. Not only is the ‘law of visiting forces’ more rudimentary than the highly developed and detailed rules governing diplomatic relations, but a combination of factors has so far prevented the emergence of a uniform legal regime in this field. Instead, several distinct regimes governing the status of different types of visiting forces have developed in international practice, in particular the rules applied in peace support operations and those applied in the context of structured military cooperation between politically equal partners. Whenever possible, States and international organizations prefer to regulate the legal position of visiting armed forces by way of international agreements. Certain elements of these agreements have developed into norms of customary international law, yet the existence of significant variation in treaty practice means that the relevant legal arrangements have not passed into customary international law in toto.