I. STATE IMMUNITIES
Forum State the state where the court of justice is located.
More on the notion of forum: http://legal-dictionary.thefreedictionary.com/forum
A. Rationale for the doctrine of immunity of foreign states from the jurisdiction of
the forum State is:
- a state must not interfere with the public acts of foreign sovereign states, because
sovereigns are equal and equals have no jurisdiction over one another
- the judiciary may not interfere with the conduct of foreign policy by either
national or foreign governmental authorities because of the doctrine of separation
of powers.
The doctrine of State immunity emerged as one of the earliest principles of international
law. See also The Parliament Belge, where a British court of appeals held that because
of the absolute independence of every sovereign state, each other state must decline to
exercise by means of its courts any of its territorial jurisdiction over the person of any
sovereign or ambassador of any other state, or over the public property of any state which
is destined for public use, or over the property of any ambassador, though such sovereign,
ambassador or property may be on its territory.
B. Restrictive Doctrine of Immunity of Foreign States from Civil Jurisdiction
At the time the doctrine of State immunity, emerged it was absolute and deemed to reflect
customary international law. Gradually, towards the late 19th century the doctrine became
more restrictive.
The restrictive doctrine of State immunity in the U.S. FSIA
By the 1940s, US courts began considering situations where foreign sovereign immunity
should be restricted, that is situations where US court could assert jurisdiction over a
foreign State. Under this restrictive theory, the Department of State (which was consulted
with respect to State immunity) was to distinguish between cases involving public acts of
foreign governments and situations involving commercial acts (which could have easily
been carried by private parties). Because the Department of State was put in a very
difficult situation, Congress eventually passed the FSIA, which provides the sole basis for
obtaining jurisdiction over a foreign state in the U.S. courts. As a general matter, the
FSIA recognizes immunity from jurisdiction for all foreign sovereigns, but FSIA also sets
for the a series of restrictions to that immunity:
exception based on waiver a foreign state will be subject to jurisdiction if it has
either implicitly (e.g. by making US law applicable to the contract, or by failing
to raise the defense of immunity) or explicitly (e.g. by treaty, or by the statement
of an authorized official after the dispute arises)
U.K - I Congresso del Partido, 1981 finally established in English law the restrictive
theory of immunity, whereby the trading or commercial activities of states are not
protected. Lord Wilberforce justified the restrictive doctrine as based on the willingness
of States to enter into commercial, private transactions. If they choose to do so, justice
requires that the individuals dealing with such states be able to sue them; moreover, suing
them does not infringe on their sovereignty as they were engaged in private transactions
(not governmental acts or acts pertaining to that States sovereign functions).
At present, almost all States adhere to the doctrine of restrictive immunity (except for
China and some Latin countries). According the restrictive doctrine of State immunity,
private and commercial transactions of States are subject to foreign jurisdiction. Acts
performed by the foreign state in the exercise of its sovereign functions are immune.
Sovereign Acts?
What if a State purchases shoes for its army? Is it acting as a sovereign or as a private
person? US case as a sovereign, Italian case its a commercial transaction excluded
from immunity. Cassese p. 101
What about the cutting of the cable of a cable car by a US military craft while performing
military training in Italy which resulted in civilian deaths? inherently sovereign act, so
immunity. P. 101
Acts performed by the foreign State in a private capacity
Two different criteria have been suggested:
Nature of the foreign act v. function of the foreign act but that can lead to confusing
results (e.g. shoe purchase for army). This difficulty is the reason many States passed
national legislation to regulate the matter (see FSIA above; similar Act was passed in the
UK; see also ILC Draft p. 101).
C. Immunity of Foreign States from Jurisdiction in Employment Matters
The principle of sovereignty also requires that a State must not interfere with or meddle
with another States internal organization. See Blaskic. In employment matters too, courts
have traditionally distinguished between acts performed in a private capacity and acts
performed by the foreign State in his capacity as a sovereign. See Fogarty v. UK, ECHR
regarding the firing of an Irish employee by the US Embassy in London based on sex
discrimination, which in the UK is prohibited by law. The US did not invoke immunity
and defended the claim. The employee received compensation. Later, she also applied for
a position with the American Embassy but was not hired. She claimed that the refusal to
re-employ her was due to the previous sex discrimination law suit. US claimed immunity.
She brought a suit before the ECHR, which dismissed her claim that the UK was in
violation of the Convention of Human Rights guaranteeing the right to a fair hearing by a
tribunal. ECHR held that this right of access is not absolute and the Convention is not
violated as long as the limitations to it (such as those that resulted from the British law on
foreign immunities) do not restrict the access to court to such an extent that the very
essence of the right is impaired. The court stated that it was not aware of any trend in
international law towards relaxation of State immunity rules in the case of recruitment to
foreign missions, which missions, by their very nature involve sensitive and confidential
issues, related to the diplomatic and organization policy of the foreign state.
A problem that results from immunity in employment disputes is that individuals may be
deprived of judicial remedies to enforce their fundamental right to have access to judicial
remedies. As a result, some courts have resorted to a distinction between employment
contracts for ordinary affairs (usually manual labor e.g. hiring a driver, an electrician)
and contracts which relate to the exercise of a public function (political position), with
immunity attaching only to the latter. Other courts have distinguished between activities
that are ancillary to the public functions (e.g. plumber, driver) and activities that are
directly related to the performance of public functions (e.g. persons fulfilling security
duties), with immunity attaching only to the latter.
Conclusion: There is still uncertainty as to the legal regime that is applicable with respect
to State immunity in employment matters, but there is a tendency to restrict foreign
immunity due to assure respect for individuals rights.
D. State Immunities and Jus Cogens
Can violation of a peremptory rule preclude the applicability of State immunity?
See Princz v. Federal Republic of Germany, US Court of Appeals The plaintiff was
tortured by the Nazi, sent to concentration camps and subjected to forced labor. He
brought a claim in the US against Germany under the FSIA. The court dismissed the
claim on the ground that Germany was entitled to foreign immunity. Judge Wald
dissented, arguing that, under international law a State waives its right to immunity when
it breaches jus cogens. See also, Al-Asdani v. UK, ECHR U.K.s High Court held that
Kuwait benefited from State immunity and Al-Asdanis case did not fall under any of the
exceptions of the UK Immunities Act. The case was brought before the ECHR, which
dismissed Al-Asdanis claim on the grounds that, although the prohibition of torture is
part of jus cogens, international law does not support the proposition that a State is not
entitled to immunity in respect of civil claims for damage. The Court noted that the case
was different from Furundzija and Pinochets cases which involved the criminal liability
of an individual for alleged acts of torture, and not the immunity of a State for acts of
torture committed on the territory of that State.
There is however a trend towards restricting State immunity for acts violating jus cogens.
See Ferrini v. Republica Federale di Germania, Italian Court of Cassation Held that
while military operations are an expression of State sovereignty, and thus covered by
State immunity, a State may no longer plead immunity where such operations amount to
international crimes violating peremptory norms of international law. Unfortunately, the
Court limited its holding (decision) by stating that it applies only if the act had been
performed in the forum State (i.e. Italy).
E. Immunity of Foreign States from Execution
Traditionally, the law on State immunity from jurisdiction has been similiarly applied to
States immunity from execution. With respect to the latter, courts have also distinguished
between acts jure gestionis and acts jure imprii, with immunity attaching only to the
latter. Execution measures (enforcement measures) can be taken against the property or
assets of foreign States, but only if they are destined for a private function (i.e. intended
for commercial purposes). Generally, courts have allowed execution measures against
bank accounts of foreign States, while there has been some reluctance to seize accounts
opened by foreign diplomatic missions (which were viewed as destined to accomplish
public functions). However, State property that is intended for the discharge of public
functions may not be seized.
II. IMMUNITIES OF ORGANS OF FOREIGN STATES
A. Principle of Functional Immunity
A State may not assert jurisdiction over acts by a foreign State official which were
performed in the exercise of his official functions. These acts shall be attributed to the
State to which the official belongs and that State alone can be held accountable. The
rationale: to protect the internal organization of each sovereign State. See Bigi case the
Foreign Minister of San Marino was held to be a representative of a State and, as such,
enjoyed immunity from prosecution even after leaving office.
From the principle of functional immunity, it follows that, the acts foreign State officials
perform in their official capacity are imputed to the State on behalf of which they acted.
If the act is in breach of international law, the State will incur international responsibility.
B. Exceptions to Immunities of State Organs
- an official act of foreign representative that is in breach of international law, is
performed on the territory of the forum State, involves the commission of a
serious criminal offence under the local legislation gives rise to international
responsibility of the State to which he belongs and may also trigger personal
liability of the agent
an official act by a foreign State agent is not protected by functional immunity if it
amounts to an international crime. In such cases, the State and the agent will both
be responsible, although there is an emerging trend towards individual
responsibility of the agent only.
Note: The act of State officials to immunity is a right belonging to the State, not the State
official. Therefore, if the State waives its right, the agent may be tried (brought to trial)
and punished by the foreign State.
III. IMMUNITIES AFFORDED TO PERSONS: DIPLOMATIC AND CONSULAR
IMMUNITIES
A. Diplomatic Immunities
Diplomatic immunities based on the need to promote friendly relations among States, by
allowing their representatives to perform their functions without interference by the
forum state through judicial proceedings.
The Vienna Convention on Diplomatic Relations (VCDR) of 1961 codifies customary
international law governing the treatment of diplomats and diplomatic property. It has
been ratified by more than 180 States.
Personal Immunities
In addition to immunity for acts or omissions done in the exercise or related to their
official functions (functional immunities), once a government (the sending State) has sent
someone as a diplomat to another government (the receiving State), that person is also
immune with respect to:
- criminal acts
- arrest or detention
- most civil processes in the receiving State (the exceptions relate to situations where the
diplomats deliberately engage in private activities or transactions not linked to their
diplomatic functions)
- his private residence, paper, correspondence, and property. The physical premises of the
diplomatic mission are inviolable but, contrary to popular belief, they are not sovereign
territory of the sending State. See Third Avenue Assoc v. Zaire (US) - A diplomatic
mission that had fallen into arrears on its rent (had not paid rent for several months or
years) was sued by the landlord (owner of the building) who sought to evict the mission.
The court denied the landlords right to obtain possession of the premises upon nonpayment of rent, saying that that right of the tenant may not override the well-established
rule of international law granting diplomats protection of diplomatic property. See also,
US Diplomatic and Consular Staff in Teheran, ICJ 1980 Iran clearly breached its
international obligations. The court emphasized the fundamental importance of the rules
on diplomatic immunity, which cannot be altered by alleged extenuating circumstance,
such as Irans claim of past US wrongdoing.
- dues and taxes