IMMUNITIES FROM JURISDICTION

I. STATE IMMUNITIES

Forum State – the state where the court of justice is located.

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.”

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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 19^th century the doctrine became more restrictive.

The restrictive doctrine of State immunity in the U.S. – FSIA

By the 1940’s, 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)

·      commercial activity exception (test: was the government acting as a regulator of the market or as a player within the market). The foreign state will be immune only in the former case

·      tort exception – a foreign state or its agents are not immune (that is, a US court can assert jurisdiction over them) from tort actions involving money damages where the tort occurred in the U.S., including actions for personal injuries (such as car accidents caused by foreign embassy personnel), death etc

·      terrorist state exception -  permits civil suits in the US for monetary damages against foreign states that cause personal injury or death. The claimant or victim must be a US national when the terrorist act occurred and the State sued must be one that is designated by the Secretary of State as a sponsor of terrorism (as of 2006 – Cuba, North Korea, Syria, Iran and Sudan). See Flatow v. Iran

·      counterclaim exception: if a foreign state brings an action in US court, the foreign state is not immune from the jurisdiction of US courts for any claim arising out of the same transaction or occurrence that is the subject of its own claim, to the extent the counterclaim does not seek relief exceeding the amount sought by the foreign state.

·      There are a few other exceptions.

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 State’s 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 – it’s 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 State’s 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-Asdani’s case did not fall under any of the exceptions of the UK Immunities Act. The case was brought before the ECHR, which dismissed Al-Asdani’s 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 Pinochet’s 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 State’s 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

1. 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.

2. 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

1. 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 landlord’s right to obtain possession of the premises upon non-payment 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 Iran’s claim of past US wrongdoing.

- dues and taxes

These immunities extend to his family members.

Exceptions to Diplomatic Immunities:

-       Diplomats are not exempt from the jurisdiction of the sending State (VCDR, Art. 31 (4)).

-       The receiving State may assert jurisdiction over the diplomat if the sending State expressly waives the immunity of its diplomatic personnel. See the Makharadze case, involving involuntary homicide (killing) by a Georgian diplomat in the US as a result of car speeding and resulting in the death of a 16-year old and the injury of 4 other people. Georgia waived immunity and the diplomat was sentenced to prison in the US and was later transferred to serve his sentence in Georgia.

-       If the diplomatic agent has the nationality of the receiving State or permanent residence there, he enjoys only immunity from jurisdiction for official acts performed in the exercise of his functions (VCDR Art. 38.1) – the rationale is that otherwise the diplomat would be exempt from any jurisdiction and enjoy total unaccountability. As a result, the diplomat will be liable for taxes and dues and will be accountable for criminal acts in the receiving State.

2. Consular Immunities

Customary international law governing the treatment of consular officers and consulates is codified by the VCCR of 1963. Consular agents are not diplomatic envoys in that they are not in charge of relations between two States. Their role is to protect the commercial and other interests of the sending state and in particular provide assistance to nationals of that State. They are only entitled to functional immunities, i.e. immunity from civil and criminal acts done in the official exercise of their consular functions. In addition, they are not liable to arrest or detention, except in the case of grave crimes; consular premises, archives and documents are not subject to search and seizure; consular agents are exempt from taxation and from customs duties and inspection.

3. Head of State Immunity

Heads of State, prime ministers and foreign ministers enjoy:

-       functional immunities

-       immunity with respect to the premises from which they perform their official actions or live

-       immunity for their private acts

However, these immunities are granted only when they are on official visit. When on a private visit, States generally grant them same immunities but out of comity, not because of a legal duty to do so.

In the U.S. because the FSIA does not control head of state immunity determinations, the courts look to the Executive Branch for guidance. See Lafontat v. Aristide, which resulted in the dismissal of a civil case against the President of Haiti due to the US State Department’s suggestion of applying head of state immunity to the defendant’s status.

Tachiona v. Mugabe, 2001 – Zimbabwe nationals sued Zimbabwean President Mugabe and his foreign minister for compensatory and punitive damages in US court claiming they and their relatives were subject to murder, torture and other acts of violence. The NY District Court followed the suggestion by the US Department of State (which cited extensive precedent for head of state immunity) and dismissed the action against the two defendants.

Congo v. Belgium, ICJ 2002 -  Congo sued Belgium seeking the annulment of a Belgian judge’s arrest warrant issued for grave violations of international humanitarian law against Congo’s then-foreign Minister. The ICJ found that while in office, the Minister enjoys full immunity from criminal jurisdiction, even when the Minister is suspected of having committed war crimes. The warrant constituted a violation of Belgium’s legal obligation towards Congo with respect to such immunity.

IV. Duration of Privileges and Immunities

-       Functional Immunity does not cease with the cessation of functions

-       Personal privileges and immunities terminate with the cessation of the mission, except that they extend for a reasonable time after the cessation of diplomatic functions in order to allow diplomats to make arrangements and leave the country.

V. Personal Immunities and International Crimes

State officials benefit from immunity for international crimes, but only for the time they remain in office. Thereafter, they may be prosecuted for crimes perpetrated while in office or before.

VI. Limitations upon State’s Treatment of Foreigners and Individuals

-       Customary and treaty provisions guaranteeing foreigners’ rights are a major limitation upon State sovereignty. Debate as to the standard to be applied to foreigners: nationals’ standard v. minimum standard of civilization regardless of how the host country treats its nationals. The latter prevailed.

-       Foreigners have the right to not be discriminated against, to respect for their life and property, may not be expelled collectively, and are entitled to judicial remedies.

-       If no judicial remedy by local authorities – foreigners can rely upon diplomatic protection of their own State, although diplomatic protection is not a right (their State may decline to exercise diplomatic protection) and depends on policy consideration from their State, which are not justiciable (a Court will not scrutinize them), but need be legitimate (rest on a rational basis).

-       Many customary international rules now protect individuals not as foreigners, but as individuals. International rules on human rights, impose limitations on States even with regard to their own nationals, but like rules on foreigners, they also require the exhaustion of local remedies before an international claim can be brought.