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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

by placing himself or its Does immunity result in impunity? sovereign rights within the jurisdiction of another • An individual can be held liable: . Conflict between State immunity and human from all criminal responsibility rights law . Before the courts of his own country person. One sovereign. it cannot jus cogens exonerate the person to whom it applies 2. Recognition by the international community Examined in two perspectives: that some rules of international law are of a. Pleas of immunity raised in civil proceedings adjudicate a claim and does not affect the .public international law – atty al conrad espaldon – ausl 1718 . 1. Pleas of State Immunities raised in criminal jus cogens character entails that the proceedings prohibition of crimes having the character ➢ Under customary international law. After he ceases to hold public office which means he may then be tried by any State Restrictive Immunity which has jurisdiction under international . but was called into question with 2. Conflict between State Immunity and before otherwise competent courts prohibitions of a jus cogens rule 2.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.Germany should not rely on State Immunity . Being a rule of procedure. Before the ICC emiaj francinne mendoza . The full and absolute territorial jurisdiction.SC of Germany removed immunity with petitioner’s substantive rights or the respect to acta jure imperii defendant’s responsibility . 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 . 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. May bar a criminal prosecution for a certain in respect to acta jure imperii in breach of period for certain offenses. 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. Justifiable when applied to a sovereign in 1. imposes an obligation on national courts to being in no respect amenable to another. 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. determines performance of their duties whether the forum is competent to b. omnes obligations for all States and being incapable of conferring . When his State waives immunity and allows the increased participation of States in another State to bring him to justice commercial activities 3. Imposition was needed with the law to do so development of international trade when 4.One argument is that some HRs are of jus Absolute immunity cogens in nature and as such create erga .

Terrorism exception to State immunity under 1976 US Foreign Service Immunities Act . as a state sponsoring terrorism (Cuba. Amended by the Antiterrorism and Effective Death Penalty Act . aircraft sabotage.’ . extrajudicial killing. The act must have occurred outside the territory of the sponsoring state. If it occurs within its territory. by the US Secretary of State. Syria) 3. or the provision of material support or resources. Sudan. Iran. The foreign State must have designated. US Federal courts have jurisdiction over foreign claims for monetary damages against foreign tates that caused injury or death ‘by an act of torture. the claimant must give the State responsible a reasonable opportunity to arbitrate the claim emiaj francinne mendoza . Claimant or victim must have been a US national at the time of the occurrence of the terrorist attack 2.public international law – atty al conrad espaldon – ausl 1718 . hostage taking. Conditions to be satisfied in order for the claim to proceed: 1.