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IMMUNITY Ends when head of State No regard for vacancy

vacates the post


Categories of persons and bodies immune from the State Immunity and its Evolution
jurisdiction of the municipal courts in a foreign State
Doctrine of State Immunity
1. Foreign sovereign and foreign States
2. Diplomatic agents of a foreign State - Follows the fact that although States are
3. International organizations and representatives independent and equal they should not be
4. Consular officers subjected to the jurisdiction of other States
5. Armed forces in the territory of a foreign State without their consent
when they are present with the consent of that - Immunity not only from adjudication but
State also enforcement

Three doctrines of State immunity Justifications for State Immunity

1. A plea of State immunity 1. Principle of sovereign equality and


- National court is barred from exercising its independence
adjudicative and enforcement jurisdiction - No state shall be subjected to the
because of the quality of the defendant jurisdiction of another without its consent
because the defendant is a foreign State or - Par in parem non habeat imperium
its agent ➢ legal persons of equal standing cannot
2. A plea of non-justiciability have their disputes settled in the courts
- A municipal court has no jurisdiction of one of them. Otherwise there would
because of the subject matter of the be an attack on the dignity of a foreign
proceedings State
3. The act of State doctrine 2. inability to enforce judgements of a forum State
- An act of a foreign government affecting against a foreign State
any private property in any movable or - attempts to enforce judgements would not
immovable thing will be recognized as valid only create tensions and upset friendly
and effective in England if the act was valid relations but also be contrary to the
and effective under the law of the country principle of non-intervention
where the thing is situated at the time 3. Entitlement of foreign sovereigns to immunity
when the act too effect similar to that enjoyed by them in the municipal
law of their home State
• Plea of immunity may be raised before any - Rests upon the historical proposition that a
court of the forum state sovereign could not himself be sued before
• If plea of immunity is validly raised in criminal his own municipal courts, so the sovereign
proceedings, the immunity is absolute of another State was similarly exempt from
Justification: criminal proceedings, if successful, jurisdiction of the local law
result in the imposition of a penalty or
Evolution of the doctrine of State Immunity
imprisonment of defendant
• Initially, a state enjoyed absolute immunity
Immunity ratione Immunity ratione
from proceedings in municipal courts
personae materiae
➢ The immunity came to be recognized
Enjoyed by heads of Protects all State officials
with regard to sovereign or public acts
State and other high from jurisdiction of
ranking officials while in municipal courts of the (jure imperii) of a State but not with
office forum State respect to private acts (jure gestionis).
Covers official and Covers acts committed in • State Immunity is being challenged on three
private acts official capacities grounds (*)

emiaj francinne mendoza - public international law – atty al conrad espaldon – ausl 1718
1. Because it is incompatible with the States were becoming increasingly involved
development of international criminal law in commercial trade
as it shields the heads of States and other
Challenges of State Immunity
high-ranking officials from being
accountable for grave human rights abuses 1. Conflict between State Immunity and
before otherwise competent courts prohibitions of a jus cogens rule
2. Recognition by the international community Examined in two perspectives:
that some rules of international law are of a. Pleas of State Immunities raised in criminal
jus cogens character entails that the proceedings
prohibition of crimes having the character ➢ Under customary international law,
of jus cogens should prevail over the rules incumbent foreign ministers when
on State immunity which do not enjoy the abroad enjoy full immunity from
status of jus cogens criminal jurisdiction as well as
3. It clashes with the basic human rights inviolability protecting them from any
‘act of authority’ by another State
Jurisdictional immunity
which would hinder them in the
- Being a rule of procedure, determines performance of their duties
whether the forum is competent to b. Pleas of immunity raised in civil proceedings
adjudicate a claim and does not affect the - SC of Germany removed immunity with
petitioner’s substantive rights or the respect to acta jure imperii
defendant’s responsibility - Germany should not rely on State Immunity
- May bar a criminal prosecution for a certain in respect to acta jure imperii in breach of
period for certain offenses; it cannot jus cogens
exonerate the person to whom it applies 2. Conflict between State immunity and human
from all criminal responsibility rights law
- One argument is that some HRs are of jus
Absolute immunity
cogens in nature and as such create erga
- The full and absolute territorial jurisdiction, omnes obligations for all States
and being incapable of conferring - Victims of international crimes are entitled
extraterritorial power would not seem to to both a remedy and a reparation and that
contemplate foreign sovereigns nor in their this right being an erga omnes obligation
sovereign rights as objects. One sovereign, imposes an obligation on national courts to
being in no respect amenable to another; remove immunity in a situation where a
and being bound by obligations of the victim would otherwise have no remedy
highest character not to degrade the dignity under national or international law
of his nation, by placing himself or its
Does immunity result in impunity?
sovereign rights within the jurisdiction of
another • An individual can be held liable:
- Justifiable when applied to a sovereign in 1. Before the courts of his own country
person, but was called into question with 2. When his State waives immunity and allows
the increased participation of States in another State to bring him to justice
commercial activities 3. After he ceases to hold public office which
means he may then be tried by any State
Restrictive Immunity
which has jurisdiction under international
- Imposition was needed with the law to do so
development of international trade when 4. Before the ICC

emiaj francinne mendoza - public international law – atty al conrad espaldon – ausl 1718
Terrorism exception to State immunity under 1976 US
Foreign Service Immunities Act

- Amended by the Antiterrorism and Effective


Death Penalty Act
- US Federal courts have jurisdiction over
foreign claims for monetary damages
against foreign tates that caused injury or
death ‘by an act of torture, extrajudicial
killing, aircraft sabotage, hostage taking, or
the provision of material support or
resources.’
- Conditions to be satisfied in order for the
claim to proceed:
1. Claimant or victim must have been a US
national at the time of the occurrence
of the terrorist attack
2. The foreign State must have designated,
by the US Secretary of State, as a state
sponsoring terrorism (Cuba, Iran,
Sudan, Syria)
3. The act must have occurred outside the
territory of the sponsoring state. If it
occurs within its territory, the claimant
must give the State responsible a
reasonable opportunity to arbitrate the
claim

emiaj francinne mendoza - public international law – atty al conrad espaldon – ausl 1718

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