State Immunity

• rules & principles which

determine how a foreign State
may claim freedom from
jurisdiction of another State
(forum State)
State Immunity • Is based on the concept of
sovereign equality of States (par
in parem non habet)
• Also relates to obligation not to
interfere with other State’s
internal affairs
 State Immunity

• 2 levels of immunity:

• Immunity of foreign State from jurisdiction of municipal court of another

State to adjudicate a claim against it (like contract @ tort)

• Exemption from enforcement measures against the State’s property arising

from another State’s municipal court’s decision
 • Rules on State immunity are
based on international custom &
treaties like the European
Convention on State Immunity
1972

State Immunity • States also have municipal law

rules but there is responsibility
on States to accord other States
immunity (Holland v Lampon
Wolfe)
State Immunity (Absolute Theory vs Restrictive
Theory)

Absolute immunity – immunity covers all aspects of State Now many States are moving towards restrictive
activities with very narrow exceptions. immunity – immunity only for act jure imperii
(governmental act) not act jure gestionis (commercial act)
 • Justifications for restrictive theory
1. states can be sued in their own states
on commercial contracts. So there is
State Immunity no reason foreign States can be
subject to the same rule – Philippine
(Absolute Theory Admiral case
2. willingness of States to enter into
vs Restrictive private transactions with individuals
(interest of justice to individuals will
Theory) not challenge sovereignty @
governmental act of the State) – I
Congresso del Partido.
How to differentiate between act
jure gestionis (commercial act) &
act jure imperii (governmental
act):

• the nature of the act

• the purpose of the act
• subject matter approach
• two-stage test (nature of the act
in its context)
 How to differentiate between act jure
gestionis & act jure imperii:

The nature of the act (objective test)

• If can only be performed by States – act jure imperii (e.g. expropriation of
property @ testing of nuclear weapon)
• If can be by States & individuals – act jure gestionis (e.g. purchase of wheat)
• Trendtex Trading Corp. v Central Bank of Nigeria
Claim against CBN arising from the latter’s refusal to honour the relevant
letter of credit.
Held: no immunity coz transaction was commercial though CBN has functions
of a State
 • The purpose of the act
• If to achieve an act of sovereignty –
there will be immunity
• If for non-sovereign purposes – no
immunity
• Was rejected in Trendtex ( state’s
act was immaterial in deciding
whether it was governmental or
commercial. It was sufficient if the
nature pf the transaction itself was
How to of a commercial type, such as a
contract for the supply of goods
differentiate and services)
• Subject matter approach
between act • a list of sovereign acts is provided by
legislation (Victory Transport case – US
jure gestionis & case)
• E.g. Of such acts – nationalisation,
act jure imperii: public loans etc.
• Two-stage test
• Developed in I Congress del Partido.
• court will examine the whole context –
initial act & the act giving rise to the
claim
How to
differentiate
• Different States have different
between act practices in granting restrictive
jure gestionis & immunity – so no CIL
act jure imperii:
 Pre 1970s – absolute immunity is
applied
• Parlement Belge: a vessel
State belonging to King of Belgians was
granted immunity from
Immunity jurisdiction of UK courts over
collision with UK ship
(British • Port Alexandre: Portuguese state
ship engaged in private trading
Practice) operations was issued writ in
English court for non payment of
dues. Ct dismissed the case.
 • 1970s – change to restrictive
immunity – started with Philippines
Admiral v Wallem Shipping (Hong
State Kong)
• followed by Trendtex Trading Corp. v
Immunity Central Bank of Nigeria
(British COA extended application of
restrictive immunity to be part of
Practice) CIL and incorporated into English
law without any Act of Parliament.
On of the grounds – no stare
decisis in IL.
 • Trendtex was reaffirmed in I
Congresso Del Partido (Ships
Playa Larga &Marble Island-
sugar from Chile- diverted
State Immunity elsewhere- orders by new Cuban
(British Government after the new govt
came into power in Chile-act pf
Practice) private person- Cuba is not
immune)* which ruled that the
doctrine is part of common law.
- Two stage test*
 • The doctrine is now reflected in the State
Immunity Act 1978
State • State is not immune in respect of
Immunity commercial transactions entered into by
the State @ of any obligation arising from
(British a contract which is duty bound to be
performed wholly @ partly in the UK (S.
Practice) 3)
 • The position there is generally similar to
State the UK
• For a long time, absolute immunity
Immunity doctrine was applied & can be evidenced in
the following cases:
(Malaysian Mighell v Sultan of Johor
Duff Development Co. Ltd v Govt of
Practice) Kelantan
Sultan of Johor v Tunku Abubakar
 • Village Holdings Sdn Bhd v Queen of
Canada - by virtue of S. 3 of CLA, Malaysia
adopted the absolute immunity doctrine
(part of common law)
State • Commonwealth of Australia v Midford
• The Ct. applied restrictive theory
Immunity following two English cases (Philippine
Admiral – judgement by PC so it’s
(Malaysian binding & I Congresso del Partido -
strongly persuasive) though both were
decided after 1956.
Practice) • Both actions in rem & in personam are
covered. Must also consider whether
the act is jure gestionis or jure imperii
(governmental/sovereign activity).
 • Village Holdings Sdn Bhd v Queen of
Canada - by virtue of S. 3 of CLA, Malaysia
adopted the absolute immunity doctrine
(part of common law)
State • Commonwealth of Australia v Midford
• The Ct. applied restrictive theory
Immunity following two English cases (Philippine
Admiral – judgement by PC so it’s
(Malaysian binding & I Congresso del Partido -
strongly persuasive) though both were
decided after 1956.
Practice) • Both actions in rem & in personam are
covered. Must also consider whether
the act is jure gestionis or jure imperii
(governmental/sovereign activity).
 • 2 types of immunity:

1. Functional immunity (ratione

materiae)
• granted to persons because
they perform functions of
Individuals and State (head of State, head of
government, foreign minister
Immunity from etc)
Prosecution
2. Personal immunity (ratione
personae)
• granted to persons because
they hold certain offices, not
because of the acts they do
relate to the State
 Head of State Immunity

• Is personal inviolable:
Schooner Exchange: person of the sovereign is exempt from arrest & detention within a foreign
territory.
• Is immune from civil proceedings…what about private acts? civil law vs common law countries:
• Mighell v Sultan of Johore
• State Immunity Act 1978 – immunity of Head of State is same with immunity enjoyed by
Head of Diplomatic Mission granted under UK diplomatic immunity law.
• Is immune from criminal proceedings…both official acts & private acts (Ghadaffi case).
 • Foreign Minister to be treated as
Ministers rep. of State & can perform acts
rel. to a treaty without full
other than powers.
Head of • Arrest Warrant case – FM enjoys
Government personal inviolability & immunity
from criminal jurisdiction.
 Immunity of Former Head of State

• Due to the immunity ratione materiae concept, immunity lasts until the State ceases to exist OR
• If the person leaves office, he can be tried for crimes he committed before or after he came into
office, OR
• If he committed crimes while in office but in personal capacity (Noriega case – US case).
• BUT he will still be immune for crimes committed in his official capacity – immunity ratione
personae.
• Such immunity should also not act as a defence against prosecution for international crime
(Pinochet case – UK case).
• Question : are international crimes private acts?
Arrest Warrant case.
• Are there difference between
Pinochet, Arrest Warrant & Omar
al-Bashir’s indictment by the
International Criminal Court for
his involvements in Darfur.
Thank you
very much
UK 3013 PUBLIC INTERNATIONAL LAW
DR NADIA AZIZ