IMMUNITIES FROM

JURISDICTION
 What is Sovereign (or State)
Immunity
State immunity refers to the legal rules
and principles determining the conditions
under which a foreign state may claim
freedom from the jurisdiction (the legislative,
judicial and administrative powers) of another state
(forum state).
 The Structure of Discussion
Sovereign Immunity
Absolute approach
Restrictive approach
Sovereign & Non-Sovereign Acts
State immunity & violation of Human Rights
Some non-immunity areas
The Personality Issue
Diplomatic Immunities
 Limitations of State Sovereignty
State sovereignty is not unfettered.

Obligation to respect sovereignty of other states.

Par in parem non habet imperium- equals have

no jurisdiction over one another.
 A State may not carry out any of the
following acts
Impose its will on, or Submit to the
interfere with, or coerce jurisdiction of its courts
a foreign State official. foreign States for acts
Interfere with foreign performed in their
armed forces lawfully sovereign capacity.
stationed on its territory. Submit to the
Perform coercive acts on jurisdiction of its courts
board a foreign military foreign State agents for
or public ship or aircraft. acts performed in their
official capacity.
 The Rationale
States must not interfere with public acts of
foreign sovereign States out of respect for their
First independence.

The judiciary should not interfere with the

conduct of foreign policy by either national or
foreign governmental authorities, on the
Second principle of separation of powers.
Absolute Immunity Approach
Sovereign was completely immune from
foreign jurisdiction in all cases regardless of
circumstances.

Sovereign included the Head of State,

government agencies and government
functions.
 The Schooner Exchange v.
McFaddon, 1812 U.S. Supreme Court
Absolute
Within the territory every sovereign
territorial has absolute jurisdiction.
jurisdiction
One sovereign is not amenable to
Sovereign another in any way. Hence, such
equality immunities are reserved even when
they enter other nations

One of these attributes would be the

Exemption of exemption of the person of the
the person sovereign from arrest or detention
within foreign country.
 The restrictive (qualified) immunity
approach

Attempt at reconciling the forum states territorial

jurisdiction with the foreign states sovereign
authority.

The immunity is therefore not absolute but

granted to the foreign states depending on the
nature of the activity.
 Nature of Activity

Acts jure Acts jure

imperii gestionis
Government Commercial
Acts Acts

Immunity Immunity
available not available
 I Congreso del Partido,
1983 House of Lords
The restrictive theory displays the willingness of states to
enter into commercial, or other private law, transactions
with individuals.
It has 2 foundations: -
(a) It is necessary in the interest of justice to individuals
having such transactions with states to allow them to
bring such transactions before the courts.
(b) To require a state to answer a claim based upon such
transactions does not challenge any act of sovereignty
or act of state.
 Some relevant excerpts
For determining the distinction between acts
jure imperii and jure gestionis one should
rather refer to the nature of the state
transaction or the resulting legal
relationships, and not to the motive or
purpose of the state activity.
 Therefore
A breach of contract of the present character
was within the area of private law.
Everything done by the Republic of Cuba in
relation to the ships could have been done as
owners of the ships.
No need to exercise sovereign authority.
The claim of immunity was disallowed in
respect of both ships.
 Sovereign & Non-Sovereign Acts
State for the purposes of sovereign
immunity means: (i) the state & its various
organs or government; (ii) constituent units
of a federal state or political subdivisions of
the state; (iii) agencies or instrumentalities of
the state or other entities, to the extent that
they are entitled to perform; and (iv)
representative of the state acting in that
capacity.
 Whether the activity in itself is
sovereign???
Reference should be made primarily to the nature of the
contract or transaction

Whether it is commercial or governmental in

nature

If it is commercial, then reference to its purpose should be

made in order to determine whether the contract was truly
sovereign or not
It is not just that the purpose or
motive of the act is to serve the
purposes of the state, but that the act
is of its own character a
governmental act, as opposed to an
act which any private citizen can
perform.
 The Personality Issue- Immunity for
government figures
Heads of State are ordinarily rendered as immune
to jurisdiction.
They may however be rendered susceptible to the
jurisdiction of international tribunals, depending
upon the terms of the constitutions of such
tribunals.
E.g. the Versailles Treaty, 1919; the Charter of the
International Military Tribunal at Nuremburg, the
Rome Statute of the International Criminal Court
etc.
 Immunity to the Head of State-
Some dimensions
The question of state immunity for head of state is
primarily a matter for the domestic order of the
1.) individual concerned.

International law has traditionally distinguished

between the official and private acts of a head of
2.) state

Serving heads of state benefit from absolute immunity

from the exercise of the jurisdiction of the foreign court.
3.)
 The difference in the nature of
immunity

Present Head of State Former Head of State

Status Immunity Functional Immunity

Rationae Personae Rationae Materiae

R. v. Bow Street Magistrates Ex P
Pinochet
 The Issue
Whether international law grants state immunity in
relation to the international crime of torture and if
so, whether the Republic of Chile is entitled to
claim such immunity even though Chile, Spain and
the United Kingdom are all parties to the Torture
Convention and therefore contractually bound to
give effect to its provisions.
 The immunity of a Head of State

Rationae Head of state in power enjoys

complete immunity attaching to the
Personae person

It makes him immune from all actions

Complete and prosecutions whether or no they
Immunity relate to matters done for the benefit
of the state.

The immunity continues after

Continuation leaving the post is of a partial kind
of immunity which is connected to his official
actions.
 Torture- Is it a state function??
If implementation of torture is treated as a public
function giving rise to immunity rationae materiae

Then this produces bizarre resultsas it would

apply to all state officials involved

If such immunity rationae materiae is applied in this case,

there can be no case brought outside Chile
 Therefore
The whole elaborate structure of universal
jurisdiction over torture committed by officials is
rendered abortive and one of the main objectives
of the Torture Convention is to provide a system
under which there is no safe haven for torturers-
will be frustrated.
Therefore, the torture in pursuance of a
conspiracy (even if a single act of torture) will make
him lose him immunity.
 Democratic Republic of Congo v.
Belgium (The Arrest Warrant Case)

.in international law it is firmly established

that, as also diplomatic and consular agents,
certain holders of high-ranking office in a State,
Head of Government and Minister for Foreign
Affairs, enjoys immunities from jurisdiction in
other States, both civil and criminal.
Immunity for a Minister for Foreign
Affairs

Acts in
official
capacity

Acts in
private
capacity
Full immunity
throughout
the duration
of office
Immunity Impunity

(exemption from punishment or

freedom from the injurious consequences of an action)
 Meaning of immunity and other
concerns
Immunity from jurisdiction enjoyed by the Min. of FA
does not mean that they enjoy impunity in respect of
1.) crimes committed.

Immunity from criminal jurisdiction and individual

criminal responsibility are quite separate concepts.
2.)

Jurisdictional immunity is procedural in nature,

criminal responsibility is a question of substantive law.
3.)
Jurisdictional immunity may
well bar prosecution for a
certain period or for certain
offences; it cannot exonerate
the person to whom it applies
from all criminal responsibility
 Hence the position w.r.t. incumbent or former
Minister of FA
Such persons enjoy no criminal immunity under
international law in their own countries, and may thus be
tried by those countries courts in accordance with the
First relevant rules of domestic law.

They will cease to enjoy immunity from foreign

jurisdiction if the State which they represent or
Second represented decides to waive that immunity.

After a person ceases to hold the office, he or she will no longer

enjoy all of the immunities accorded by international law in
other States. He can be prosecuted for all the acts committed
Third prior to assuming office
 Also
An incumbent or former Minister for FA
may be subject to criminal proceedings
Fourthly before certain international criminal
courts, where they have jurisdiction.

The international circulation of the

disputed arrest warrant was of an inchoate
Therefore quality dependent upon some further
action of other states.

The issue of arrest warrant and its

The court international circulation constitutes a
violation of international obligation and
found hence it is to be cancelled.
-Diplomatic Law -
 Diplomatic Law Embodies
A self-contained regime which on the one hand, lays
down the receiving states obligations regarding the
facilities, privileges and immunities to be accorded to
diplomatic missions and, on the other, foresees their
possible abuse by members of the mission and specifies
the means at the disposal of the receiving state to counter
any such abuse.
US Diplomatic & Consular Staff in Tehran case
 The Vienna Convention on
Diplomatic Relations, 1961
Emphasizes the functional
necessity of diplomatic privileges The diplomatic mission is
and immunities for efficient indicated as representing its
conduct of international state
relations

The treaty came

into force in 1964

There is no right under Questions not expressly

international law to diplomatic regulated continue to be
relations, and they exist by governed by customary
virtue of mutual consent international law
The inviolability of the premises of
the mission
 Article 22
1. The premises of the mission shall be inviolable.
The agents of he receiving State may not enter
them, except with the consent of the head of the
mission.
2. The receiving State is under a special duty to take
all appropriate steps to protect the premises of the
mission against any intrusion or damage and to
prevent any disturbance of the peace of the
mission or impairment of its dignity.
3. The premises of the mission, their furnishings and
other property thereon and the means of transport
of the mission shall be immune from search,
requisition, attachment or execution.
U.S. Diplomatic and Consular Staff in
Tehran Case (US v. Iran)
On Nov.4, 1979, several hundred
Iranian students and other
Facts demonstrators took possession of the
US embassy by force.

The The demonstrators had seized

archives and documents and
Occupation continued to hold 52 US nationals.

For release of the hostages, the evacuation

The Court of the Embassy & consulates, the
punishment for the persons responsible
and payment of reparations.
 The Diplomatic Bag
Art.27 Free Free & inviolable official communication.
communication on Such communication may include
couriers, and messages in code & in
behalf of the mission cipher
It shall not be opened or detained.
Art.27(3) &(4)- Packages constituting the diplomatic bag
must bear visible external marks of their
Diplomatic Bag character & must only contain official
documents.

The person Enjoys personal inviolability, his temporary

accommodation in inviolable.
accompanying Enjoys immunity from criminal and civil
Diplomatic Courier jurisdiction of the receiving or transit state.
 Diplomatic Immunities- Personal

Person of a Art.30 provides for

He may not be the inviolability of
diplomatic agent
is inviolable detained or the private
arrested residence of a
u/Art.29 diplomatic agent

In the wake of
offences however, His papers,
the host state may correspondenc
declare him e & property
persona non grata are inviolable
u/Art.9
Waiver of Immunities- Art.32 of the
Vienna Convention
Sending state
may waive the
immunity

Only
Waiver
sovereign may
must be
waive
express
immunity

In the face of
In general
criminal
waiver has
charges, waiver
been unusual
is not common
Consular privileges and immunities: the Vienna
Convention on Consular Relations, 1963
Consuls are
administrative
representatives of
the sending states
Consular officers enjoy
immunity except in Issuance of
case of a grave crime &
following a decision of passports, visas
a competent court

Consular Assist the

Premises are nationals of their
inviolable state in distress
The Convention on Special Missions,
1969
Special or ad hoc missions to particular countries to deal
with some defined issue in addition to relying upon the
permanent staffs of the diplomatic and consular missions.

In such cases, these missions, may rely on certain

immunities which are derived from the Vienna
Conventions by analogy.
 The immunities of international
organizations
The rules are not very clear- generally governed by
treaties.
E.g. General Convention on the Privileges and
Immunities of the United Nations of 1946.

Sets out the immunities of the United Nations and

its personnel and emphasizes the inviolability of
premises, archives and documents