QUESTIONS
Pre-Lecture Henriksen Notes
What international law instrument
embodies immunity from national
jurisdiction and diplomatic
protection?
What is state immunity?
Distinguish pleas for immunity for
adjudicative and enforcement
jurisdiction.
What is the doctrine of ‘acts of
state’?
What is the doctrine of ‘ordre
public’?
What are the different forms of
immunity from national
jurisdiction enjoyed by a state and
its representatives?
What is restrictive immunity?
What is the practical effect of
absolute immunity?
Distinguish sovereign (juri imperii)
and commercial (juri gestionis) acts
How are acts distinguished to be
sovereign or commercial?
How else can these acts be
distinguished?
What are enumerated acts of
commercial transactions according
to the 2004 UN Convention?
NOTES
UN Convention on Jurisdictional Immunities of States and Their Property
It means that a state cannot be sued before a foreign court unless it gives its consent. It is a
procedural matter and must be dealt with prior to an inquiry into the merits of the case.
A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the
courts of another State subject to the provisions of the present Convention. (Article 5, UN
Convention on Jurisdictional Immunities of States and Their Property)
According to the same convention, a state “shall ensure that its courts determine on their
own initiative that the immunity of that other State under article 5 is respected.”
adjudicative jurisdiction – jurisdiction of a court to render a judgment in a matter that
involves a foreign state
enforcement jurisdiction – administrative and executive powers by whatever measures or
procedures and by whatever authorities of the forum state
When a state finds that it lacks the competence to rule on acts by foreign governments in
its own territory and reject the case as non-justiciable
When sensitive issues relating to the effects of laws in foreign states are dealt with
pursuant to principles of private international law
State immunity
Immunity of state representative
Diplomatic immunities and protection
State Immunity
Immunity granted in relation to certain acts of state
A national court had to refrain from exercising jurisdiction over a matter on the sole
ground that one of the parties to the dispute was a state. (Also referred to as immunity
rationae personae)
Acts Jure imperii – a foreign state only enjoys immunity from a territorial state’s exercise
of adjudicative jurisdiction in relation to sovereign or governmental acts
Acts Jure gestionis - A foreign state does NOT enjoy immunity from a territorial state’s
exercise of adjudicative jurisdiction in relation to commercial or private acts
‘private individual test’ – asking if the activity is one that can be performed by a private
individual
If yes – it is a commercial act; individual is not immune
Purpose and nature of the act in question
Purpose
• deemed to be sovereign and thus immune if it is performed for public/governmental
purposes
• problem – states generally act for public purposes; a wide range of acts are thus
excluded from jurisdiction
• over-inclusive
Nature
• if act is one in which a private individual could participate, it is deemed a commercial
and non-immune act
• logically, all contracts for purchases by states are commercial
• problem – ignores the fact that states sometimes exercise sovereignty through
seemingly commercial activities
Contextual Approach – takes into account BOTH purpose and the nature of the activity
According to Article 2(1)(c) of the Convention, commercial transactions are:
(i) any commercial contract or transaction for the sale of goods or supply of services;
(ii) any contract for a loan or other transaction of a financial nature, including any
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Exceptions to state immunity in the UN Convention on the immunities of states and their property
Which provisions in the 2004 UN
Convention contain the exceptions
to state immunity?
Can you identify some of the
tensions that respect for state
immunity creates in relation to
other considerations in
international law?
Are there exceptions to state
immunity for breaches of
international law?
According to the Jurisdictional
obligation of guarantee or of indemnity in respect of any such loan or transaction;
(iii)any other contract or transaction of a commercial, industrial, trading or professional
nature, but not including a contract of employment of persons.
Articles 10-17
Article 10 – commercial activities
Article 11-17 - exception for commercial activities; listing the most important examples of
activities that may (also) be deemed to be of a non-immune character
Article 11- employment contracts
• traditional way of distinguishing between jure imperii and jure gestionis does not
apply because both public and private entities hire people
GR: A foreign state cannot invoke immunity from adjudicative jurisdiction in relation to an
employment contract for work performed on the territory of the forum state unless the
dispute falls within a number of exceptions.
EX:
(i) if the employee has been recruited ‘to perform functions in the exercise of governmental
authority’
(ii) if the employee is a diplomatic agent
Please see Article 11 for full list of enumerations.
Article 12 – personal injuries and damage to property
Xxx “a State cannot invoke immunity… in a proceeding which relates to pecuniary
compensation for death or injury to the person, or damage to or loss of tangible property,
caused by an act or omission which is alleged to be attributable to the State, if the act or
omission occurred in whole or in part in the territory of that other State and if the author of
the act or omission was present in that territory at the time of the act or omission.”
Note: covers wrongful conduct that has occurred or been committed in the territory of the
forum state where the author of the act or omission is also present in the forum state…
NOT when the injury or damage was inflicted abroad, such as in the territory of the foreign
state itself
Is Article 12 applicable in times of armed conflict?
In Jurisdictional Immunities of the State, the ICJ concluded that customary international
law (still) requires a state to be afforded immunity in relation to jure imperii acts allegedly
committed on the territory of another state by its armed forces and other organs of the
state during the course of armed conflict. It bears mentioning, however, that a number of
the ICJ judges dissented; and this is one area of the law of immunity that may change in
the future.
Article 13 -Immovable property located in the territory of the forum state
• lex situs rule – immovable property forms an integral part of the forum state and is
therefore not subject to other laws
You do note: The exception for immovable property does not alter the privileges and
immunities a foreign state enjoys under other parts of international law with regard to its
diplomatic missions and other representative offices.
• premises used as private residence by a member of a diplomatic mission are covered by
the exception from immunity
• if the ownership or title is in issue and it does not interfere with diplomatic duties,
national courts may exercise jurisdiction
State immunity and violations of international law
There is a tension between state immunity and more overarching notions of justice because
it serves as a procedural bar to the exercise of jurisdiction by a national court. In effect, the
case against a state entitled to state immunity is dismissed regardless of the nature of the
allegations against the state.
No. The 2004 UN Convention does not include and the last Working Group under the ILC
refused to discuss such inclusion of exception.
Germany argued that Italy had violated its obligations under state immunity by allowing
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Immunities of the State case, what
is the relationship between state
immunity and violations of
international law?
Which should be decided first:
immunity from jurisdiction or
immunity from enforcement?
How are the distinct principles of
jurisdiction applied?
Which type of property is protected
from enforcement?
Which provisions in the 2004 UN
Convention covers immunity from
enforcement?
With regard to the use of property,
which is decisive: nature or
purpose?
In Jurisdictional Immunities of the
State, was the property immune
from jurisdiction?
Why do state representatives enjoy
certain immunities from national
jurisdiction?
How was the functional immunity
showcased in the Arrest Warrant
case?
civil claims to be brought against it in Italian courts and by declaring that decisions by
Greek civil courts rendered against Germany on the basis of acts similar to those which
gave rise to the claims brought before Italian courts could be enforced in Italy. It was clear
that the acts of the German armed forces constituted acts of a jure imperii character but
Italy argued that Germany was not entitled to immunity because the acts involved the
most serious violations of rules of international law of a peremptory character (jus cogens).
Although the ICJ stated that there was no doubt that the acts of the German armed forces
that gave rise to the proceedings in the Italian courts were serious violations of the laws of
armed conflict and constituted crimes under international law, it rejected the Italian
argument. The Court could not find any practice that supported the claim that state
immunity could be limited in cases of serious violations of international law and it
concluded that a state’s entitlement to immunity does not depend upon the ‘gravity
of the act… or the peremptory nature of the rule which it is alleged to have
violated’. Among others things, the Court referred to case law from the ECtHR according
to which a state is not ‘deprived of immunity by reason of the fact that it is accused of
serious violations of international human rights law or the international law of armed
conflict. The ICJ rejected the notion that upholding state immunity conflicted with the
existence of jus cogens rules from which no derogation is permitted. Indeed, the rules that
‘determine the scope and extent of jurisdiction and when that jurisdiction may be exercised
do not derogate from those substantive rules which possess jus cogens status’.
Immunity from Enforcement
Immunity from jurisdiction
Immunity from enforcement – ‘the last bastion of State immunity’
(i) Waiver of immunity from execution must be expressed separately (Art. 20 of the
Convention)
(ii) Unlike immunity from adjudication, immunity from enforcement is by and large
absolute.
a. A foreign state is not immune from proceedings but is immune from any
enforcement measures.
Only property located in the forum state that is used for public purposes…
as distinguished from local property used for commercial purposes
Articles 18-21
Article 18 – pre-judgment measures
19 – immunity for measures of constraint after a judgment against a foreign state has been
rendered (post-judgment)
In both instances, enforcement measures require that a foreign state has either
(i) Expressly consented to such measures, or
(ii) Has allocated or earmarked property for the satisfaction of the particular claim
Purpose.
Post-judgment measures of enforcement can be taken if the property in question is based in
the forum state and is specifically used or intended to be used by the foreign state for
commercial purposes, and the enforcement measure is taken against property that ‘has a
connection with the entity against which the proceeding was directed’.
In Jurisdictional Immunities of the State, the ICJ concluded that the measures of
constraint taken by the Italian authorities against property owned by the German state in
the absence of express German consent violated international law. The Court noted that
the property in question – a cultural centre intended to promote cultural exchanges
between Germany and Italy - was used for governmental non-commercial purposes and
thus for sovereign purposes.
Therefore, it was immune.
Immunities of state representatives
State representatives ‘personify’ the state on whose behalf they act. They need protection
from national jurisdiction in order to fulfill their functions as state representatives.
As the ICJ noted in Arrest Warrant, a foreign minister can only perform his or her official
functions if the individual can travel freely and remain in constant communication with not
only the home government but also with diplomatic missions and representatives of other
states.
The immunities are therefore not granted for the personal benefit of the representative but
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Distinguish immunity rationae
personae and immunity ratione
materiae.
How is the distinction applied to
different state representatives?
Which state representatives enjoy
both civil and criminal immunity?
The protection offered
What types of protection is offered
to high-raking state officials?
What criteria was used to identify
personal immunity in the Arrest
Warrant case?
In what circumstances can there
be criminal prosecution of a
minister for foreign affairs?
The Court thereby implied that immunity remains in relation to all official acts performed
during the period in office.
Immunity of other state representatives who perform official acts
Where is functional immunity Functional immunity is derived from the conceptual understanding that it is not the
derived from? representative but the state that he or she represents that is the real object of the
proceedings.
How is a conduct determined to be
so that the individual can fulfill his or her official functions.
Immunity ratione personae – ‘personal immmunity’
• flows from the position a representative holds in a state;
• enjoyed by individuals with certain high-level governmental position;
• diplomatic agents
• representatives on ‘special missions’
• on the basis of the identity of the defendant
Rationae materiae – ‘functional immunity’
• relates to the functions the representative performs and is enjoyed by all state
representatives
• protects all state officials from civil proceedings in respect of their official acts
• does not apply to private acts
• applies after the representative leaves his or her position for public acts committed
while in public service
• on the basis of the subject matter of the case
The immunity of certain high ranking representatives
(i) Heads of state – embodiment of the state
• immunity derived from customary international law
(ii) Head of Government
(iii) Minister of Foreign Affairs
(iv)
(i) Civil prosecutions in relation to official as well as private acts
• Civil jurisdiction protection – less extensive
• Certain acts performed in a private capacity do not seem to be immune to
adjudicative jurisdiction
• Parallel to that enjoyed by diplomatic agents
Unavailable for:
• certain acts relating to private immovable property
• succession in which the official is involved as executor, administrator, heir or
legatee
• commercial activities exercised outside their official functions
(ii) Criminal prosecutions in relation to official as well as private acts
• In relation to conduct performed both before and during the period in office
• No need to distinguish between immunity from jurisdiction and immunity from
execution
• ALL criminal procedural measures in respect of a foreign representative
In Arrest Warrant, the ICJ stated that the protection extends to ‘any act of authority of
another State which would hinder’ the representative in performing his or her duties.
The Court also stated that criminal prosecution of a minister for foreign affairs is possible
in four circumstances:
(i) Minister can be criminally prosecuted by courts in his or her own ‘home state’
(ii) Prosecution in the forum state is possible if the ‘home state’ agrees to the prosecution
by waiving immunity.
• Waiver of immunity must, however, be express.
(iii) criminal prosecution before international courts
(iv) a foreign minister can be prosecuted after his or her term expires for acts committed
either prior or subsequent to the period of office or for private acts committed during
the period in office.
The grant of immunity therefore prevents an applicant from circumventing state immunity
by bringing a case against the representative of the state. Like immunity ratione personae,
functional immunity can therefore also be waived by the state on whose behalf the state
official has acted.
Determination according to the general rules and principles on state responsibility and
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either ‘official’ or ‘personal’?
Is the distinction between acts jure
imperii and jure gestionis relevant
for purposes of attribution?
Can a commercial act be an official
act?
A few points on state
responsibility…
The protection offered
What type of immunity is afforded
to state representatives who
perform official acts?
What does the 2004 UN
Convention on Jurisdictional
Immunities of States and Their
Property say about the protection
offered to state representatives?
Distinguish
(i) functional immunity from
criminal proceedings for non-
high ranking state
representatives
(ii) functional immunity from civil
and criminal proceedings for
high-state officials
How was functional immunity
applied in the Arrest Warrant case?
What are the two potential
exceptions to immunity ratione
materiae?
attribution of conduct.
No.
Yes.
In practice, a representative who performs a commercial act on behalf of a state enjoys
immunity whereas the state does not (due to the commercial character of the act).
(i) motives of the state representative are immaterial
• acts performed by an individual with official authority (‘under the color of
authority’) are ‘official’ acts
(ii) acts that fall outside the official functions of a state representative (ultra vires) are still
deemed to be official acts if they are performed in a public capacity
Immunity rationae materiae
• protects all state officials from civil proceedings in respect to their official acts
The concept of a ‘state’ includes ‘representatives of the State acting in that capacity’. (Art.
2(1)(b)(iv)
(i) functional immunity from criminal (ii) functional immunity from civil and
proceedings for non-high ranking criminal proceedings for high-state
state representatives officials
• not clear if state representatives • state representatives are
are always immune in relation immune in relation to both civil
to criminal prosecution and criminal prosecution
• the forum state is not obliged to • forum state is obliged to
consider the immunity of these consider immunity according to
representatives unless the the 2004 UN Convention
foreign state invokes it
o notify foreign state; and
o assert that the
representative acted in
an official capacity and
should thus enjoy
immunity
• if not notified, forum state may
proceed with the case
ICJ concluded that a high-ranking state representative may be prosecuted before
international courts where those courts have jurisdiction.
With regard to prosecution before national courts, the ICJ also indicated that a high-
ranking state representative (in the absence of a waiver of immunity) remains immune
after the end of his or her term for official acts committed during their period in office.
(i) Functional immunity from criminal jurisdiction may not always apply in relation to
official acts committed on the territory of the forum state [territorial exception]
• Jurisdictional priority of the forum state in its own territory
• Correlates to Art. 12 of the 2004 UN Convention whereby a state cannot
invoke immunity from civil jurisdiction in relation to pecuniary compensation
for death or injury to the person, or damage to or loss of tangible property,
caused by an act or omission that occurred in whole or in part on the territory
of that other state.
(ii) Criminal jurisdiction in relation to international crimes
• According to one argument, international crimes cannot be considered official
acts that are protected by immunity.
• Another argument holds that the prohibition against the commission of
certain core international crimes, including torture, is of a peremptory/jus
cogens nature and therefore overrides any claim of immunity ratione materiae.
(Jurisdictional Immunities of the State)
• another argument: rejection of immunity ratione materiae based on case law
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How did ICJ decide on the
argument regarding jus cogens in
Jurisdictional Immunities of the
State?
What is the acts of state doctrine?
What is the relevance/purpose of
diplomatic immunities and
protection?
What is the instrument that
governs this type of immunity?
What are the bases for diplomatic
immunity?
What are specific provisions
concerning protection and
immunities of diplomatic staff?
What are the exceptions to the civil
and administrative immunity of
diplomatic staff?
from national courts and the emergence of a customary law-based exception to
immunity
Tentative conclusion: Functional immunity is unavailable with regard to certain of those
international crimes that both the foreign as well as the forum state are under a treaty-
based obligation to criminalize and prosecute in their national systems unless the foreign
state explicitly invokes it.
The ICJ did not find that immunity depended upon the ‘gravity of the act… or the
peremptory nature of the rule which it is alleged to have violated’.
Henriksen’s commentaries: The peremptory nature of some international crimes relate to
the commission of the crime and not to the obligation to prosecute. Thus, it is the state that
perpetrates the crime of, say, genocide or torture, that violates an obligation of a jus cogens
nature and not the state that fails to prosecute.
Every sovereign state is bound to respect the independence of every other state, and the
courts of one country will not sit in judgment on the acts of the government of another,
done within its territory, redress of grievances by reason of such acts must be obtained
through the means open to be availed of by sovereign powers as between themselves.
(Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S. Ct. 923 (1964), citing Underhill
v. Hernandez, 168 U.S. 250, 18 S. Ct. 83, 42 L. Ed. 456 (1897)).
Diplomatic immunities and protection
Due to their physical location on the territory of another state, diplomatic premises and
diplomatic staff find themselves in a particularly vulnerable situation and in need of
extensive international protection.
The purpose of diplomatic law is not to benefit the state representative in his or her
personal capacity but the state he or she represents. The purpose of diplomatic law is to
strike a balance between the legitimate concerns of the sending state and the state in
which the representatives and the diplomatic mission are based.
1961 Vienna Convention on Diplomatic Relations
-provisions generally reflect customary international law
• Functional needs and the understanding that state representatives must enjoy certain
privileges in order to perform their official functions
• Always based on MUTUAL CONSENT
• States are not obligated to enter into diplomatic relations with each other
• Host state may give its consent and revoke without having to offer any justification
Immunity and protection of diplomatic agents
Articles 29-39 of the VCDR
Article 29: The person of a diplomatic agent shall be inviolable. He shall not be liable to any
form of arrest or detention. The receiving State shall treat him with due respect and shall
take all appropriate steps to prevent any attack on his person, freedom or dignity.
Article 30. The private residence of the diplomatic agent shall enjoy the same inviolability
and protection as the premises of the mission.
Article 31: jurisdictional protection.
(1) A diplomatic agent enjoys immunity ratione personae and has (full) immunity from the
criminal jurisdiction of the host state.
(2) A diplomatic agent is not obliged to give evidence as a witness,
(3) With regard to immunity from enforcement jurisdiction, no such measures can be taken
unless they relate to the three exceptions**and provided the measures taken do not
infringe the inviolability of the diplomatic agent or his or her residence
(a) ** A real action relating to private immovable property situated in the territory of the
receiving State, unless he holds it on behalf of the sending State for the purposes of the
mission;
(b) 
An action relating to succession in which the diplomatic agent is involved as
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More provisions
Article 22 of VCDR
Article 24 of VCDR
Protection of communication
Article 26 of the VCDR
Article 27 of the VCDR
executor, administrator, heir or legatee as a private person and not on behalf of the
sending State;

(c) An action relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving State outside his official functions. (Article 31 (1))
In general, and with a few exceptions, diplomatic agents are also exempt from all dues and
taxes as well as all personal services and from military obligations. Article 34-35
The diplomat’s family – unless they are nationals of the host state – enjoy the same
immunities and protections. Article 37
Provided they are not nationals or permanently residing in the host state, members of the
administrative and technical staff of a mission, as well as their families, are afforded
similar immunities to those of diplomatic agents, except that they only enjoy immunity
from civil and administrative jurisdiction in relation to official – and not private – acts
(immunity ratione materiae). (Article 37 (2))
Other members of the staff are offered progressively less protection. (Article 37 (3) and (4))
Since the immunity from jurisdiction enjoyed by diplomatic staff is not granted for the
personal benefit of the representatives but to enable them to perform their functions, it can
be waived by the sending state. (Article 32(1))
A waiver must, however, be explicit. (Article 32(3))
In addition, a waiver from jurisdiction in relation to civil and administrative proceedings
does not imply a waiver from execution. Here, a separate waiver is required. (Article 32(4))
Please cross-reference with VCDR. Articles 29-39
Protection of diplomatic premises and property
1.The premises of the mission shall be inviolable. The agents of the receiving State may not
enter them, except with the consent of the head of the mission.
2.The receiving State is under a special duty to take all appropriate steps to protect the
premises of the mission against any intrusion or damage and to prevent any disturbance of
the peace of the mission or impairment of its dignity.
3.The premises of the mission, their furnishings and other property thereon and the means
of transport of the mission shall be immune from search, requisition, attachment or
execution.
The archives and documents of the mission shall be inviolable at any time and wherever
they may be.
In Tehran Hostages, for example, the ICJ concluded that Iran violated its obligations under
the VCDR by failing to protect, inter alia, the US embassy in Tehran from local protesters
who stormed the diplomatic premises in 1979 and took the staff hostage.
Subject to its laws and regulations concerning zones entry into which is prohibited or
regulated for reasons of national security, the receiving State shall ensure to all members
of the mission freedom of movement and travel in its territory.
2. The official correspondence of the mission shall be inviolable. Official correspondence
means all correspondence relating to the mission and its functions.
3. The diplomatic bag shall not be opened or detained.
4. The packages constituting the diplomatic bag must bear visible external marks of their
character and may contain only diplomatic documents or articles intended for official use.
5. The diplomatic courier, who shall be provided with an official document indicating his
status and the number of packages constituting the diplomatic bag, shall be protected by
the receiving State in the performance of his functions. He shall enjoy person
inviolability and shall not be liable to any form of arrest or detention.
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Article 41
Remedies of the host state from
abuses of rights and privilege of
the sending states
Application in Tehran Hostages
What are the functions of consular
agents?
Application in LaGrand case
Are consular premises inviolable?
What is ‘ad hoc’ diplomacy?
Do members of special missions
enjoy immunity?
What is needed for the exercise of
6. The sending State or the mission may designate diplomatic couriers ad hoc. In such
cases the provisions of paragraph 5 of this article shall also apply, except that the
immunities therein mentioned shall cease to apply when such a courier has delivered to the
consignee the diplomatic bag in his charge.
7. A diplomatic bag may be entrusted to the captain of a commercial aircraft scheduled to
land at an authorized port of entry. He shall be provided with an official document
indicating the number of packages constituting the bag but he shall not be considered to be
a diplomatic courier. The mission may send one of its members to take possession of the
diplomatic bag directly and freely from the captain of the aircraft.
Obligations of the sending state and abuse of privilege
1. Without prejudice to their privileges and immunities, it is the duty of all persons
enjoying such privileges and immunities to respect the laws and regulations of the
receiving State. They also have a duty not to interfere in the internal affairs of that
State.
2. All official business with the receiving State entrusted to the mission by the sending
State shall be conducted with or through the Ministry for Foreign Affairs of the receiving
State or such other ministry as may be agreed.
3. The premises of the mission must not be used in any manner incompatible with
the functions of the mission as laid down in the present Convention or by other rules of
general international law or by any special agreements in force between the sending and
the receiving State.
• Article 9 (1) The receiving State may at any time and without having to explain its
decision, notify the sending State that the head of the mission or any member of
the diplomatic staff of the mission is persona non grata or that any other
member of the staff of the mission is not acceptable. In any such case, the sending
State shall, as appropriate, either recall the person concerned or terminate
his functions with the mission. A person may be declared non grata or not
acceptable before arriving in the territory of the receiving State.
• a host state may break off diplomatic relations
In Tehran Hostages, the Iranian government argued that its (unlawful) occupation of the
US embassy should be considered in the light of more than ’25 years of continual
interference of the United States in the internal affairs of Iran, the shameless exploitation
of our country, and numerous crimes perpetrated against the Iranian people, contrary to
and in conflict with all international and humanitarian norms’.
The ICJ responded, however, by noting that the rules of diplomatic law are a ‘self-
contained regime, which specifies the means at the disposal of the receiving State to
counter any such abuse’.
Consular protection
The functions of consular agents are generally limited to offering assistance in relation to
more technical, commercial and/or private matters to the nationals of the sending state,
including in situations where nationals in one way or another find themselves in difficulty.
In contrast to diplomats, consular officers only enjoy immunity ratione materiae in
relation to functions performed in the exercise of their official functions.
In the LaGrand case, the ICJ concluded that the United States had violated its obligations
under consular law when the authorities of the State of Arizona tried and sentenced to
death two German nationals without informing them of their rights to consular assistance.
Consular premises are inviolable and the authorities of the host state are not allowed to
enter the premises without consent.
Immunity for representatives on special missions
When a state sends state representatives on ‘special missions’ to other states. In essence, a
special mission should be conceived of as a temporary diplomatic mission with the features
of a regular diplomatic mission, but for a limited period of time.
Members of a special mission enjoy immunity ratione personae and are immune from the
jurisdiction of the national courts of the host state.
The foreign state must obtain prior consent of the host state.
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immunity for members of special
missions?
Oleynikov v. Russia
Was there a finding that Russia
violated the state immunity of
Korea?
Was the trade counselor required
to pay $1500?
What right was violated?
Should the Russian court have
heard the case on the merits?
What was supposed to be done by
the Russian courts?
How then are
sovereign/commercial acts
determined?
Al-Adsani v. UK
Was torture covered by immunity
in this case?
Was it correct that Kuwait enjoyed
state immunity?
Why were the acts considered
sovereign?
Are acts of police officers
considered as acts of State?
What was the purpose of the acts?
Why would you go to an
international tribunal as a
remedy?
Lecture Questions
Yes
No
Right to access of court
No
Examine at bare minimum whether or not the nature transaction is commercial or of
sovereign
Henriksen on distinction between sovereign and commercial acts in adjudicative
jurisdiciton: Today, it is well established that a foreign state only enjoys immunity from a
territorial state’s exercise of adjudicative jurisdiction in relation to sovereign or
governmental acts (acts jure imperii) and NOT with regard to commercial or private acts
(acts jure gestionis).
Unlike the era of absolute immunity then, a claim of immunity is no longer solely dealt
with on the basis of the identity of the defendant—rationae personae—but at times also
due to the subject matter of the case—rationae materiae.
‘private individual test’ – asking if the activity is one that can be performed by a private
individual
If yes – it is a commercial act; individual is not immune
Purpose and nature of the act in question
Purpose
• deemed to be sovereign and thus immune if it is performed for public/governmental
purposes
• problem – states generally act for public purposes; a wide range of acts are thus
excluded from jurisdiction; over-inclusive
Nature
• if act is one in which a private individual could participate, it is deemed a commercial
and non-immune act
• logically, all contracts for purchases by states are commercial
• problem – ignores the fact that states sometimes exercise sovereignty through
seemingly commercial activities
Contextual Approach – takes into account BOTH purpose and the nature of the activity
No
Yes, because the acts alleged were considered sovereign.
a) the applicant has been taken to a state prison
b) Government transport had been used
c) He had been mistreated by public officials (police officers)
Yes
Although the acts of torturewere done for the purpose of vengeance, there is immunity
because they were acts done by people with official capacity.
Because the case then would be a case between the international tribunal vs. the state.
The obligation to prosecute is not jus cogens.
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Jurisdictional Immunities of the State (Germany v. Italy)
Was Italy allowed to impose a
measure of constraint against Villa commercial.
Vigoni?
What other conditions need to be
satisfied before any measure of
constraint may be taken against
property belonging to a foreign
State?
By agreeing to enforce the
judgment, did Italy violate
Germany’s immunity?
Can a state waive jurisdiction?
What is the criteria for a State to
enforce judgment like Italy did?
Ara Libertad Case (Argentina v. Ghana)
What was the government purpose National security
involved in this case?
Certain Iranian Assets
Djibouti v. France
Arrest Warrant Case
What kind of immunity does high-
ranking officials have?
Can the warrant of arrest be
issued against the Minister of
Foreign Affairs?
Differentiate functional immunity
and personal immunity
What are the four exceptions to the
immunity of Ministers of Foreign
Affairs provided in the Arrest
Warrant case?
No, because Vila Vigoni was being used for governmental purposes that were entirely non-
Exceptions to the general rule that there can be no measure of constraint on property
belonging to a foreign state:
1) that the property in question must be in use for an activity NOT pursuing governmental
non-commercial purposes,
2) or that the State which owns the property has expressly consented to the taking of a
measure of constraint,
3) or that the State has allocated the property in question for the satisfaction of a judicial
claim. (Article 19, UN Convention)
Yes
(iii) Yes. Waiver of immunity from execution must be expressed separately (Art. 20 of the
Convention)
A court seised of an application for exequatur of a foreign judgment rendered against a
third State had to ask itself whether, in the event that it had itself been seised of the
merits of a dispute identical to that which was the subject of the foreign judgment, it would
have been obliged under international law to accord immunity to the respondent State. 

Ratione personae
No, because given the nature and purpose of the warrant, its mere issue violated the
immunity, which Mr. Yerodia enjoyed as the Congo's incumbent Minister for Foreign
Affairs.
The Court accordingly concludes that the issue of the warrant constituted a violation of an
obligation of Belgium towards the Congo, in that it failed to respect the immunity of that
Minister and, more particularly, infringed the immunity from criminal jurisdiction and
inviolability then enjoyed by him under international law.
Immunity ratione personae – ‘personal immmunity’
• flows from the position a representative holds in a state;
• enjoyed by individuals with certain high-level governmental position;
• diplomatic agents
• representatives on ‘special missions’
• on the basis of the identity of the defendant
Rationae materiae – ‘functional immunity’
• relates to the functions the representative performs and is enjoyed by all state
representatives
• protects all state officials from civil proceedings in respect of their official acts
• does not apply to private acts
• applies after the representative leaves his or her position for public acts committed
while in public service
on the basis of the subject matter of the case
First, such person enjoy no criminal immunity under international law in their own
countries, and may thus be tried by those countries' courts in accordance with the relevant
rules of domestic law.
Secondly, they will cease to enjoy immunity from foreign jurisdiction if the State, which
they represent or have represented, decides to waive that immunity.
Thirdly, after a person ceases to hold the office of Minister for Foreign Affairs, he or she
will no longer enjoy all of the immunities accorded by international law in other States.
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Underhill v. Hernandez
What is the “acts of state”
doctrine?
Provided that it has jurisdiction under international law, a court of one State may try a
former Minister for Foreign Affairs of another State in respect of acts committed prior or
subsequent to his or her period of office, as well as in respect of acts committed during that
period of office in a private capacity.
Fourthly, an incumbent or former Minister for Foreign Affairs may be subject to criminal
proceedings before certain international criminal courts, where they have jurisdiction.
When a state finds that it lacks the competence to rule on acts by foreign governments in
its own territory and reject the case as non-justiciable
In this case, the de facto government was recognized. "Because the acts of defendant were
those of a military commander, representing a de facto government in the prosecution of a
war, he was not civilly responsible therefor."
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