MODULE 6

Immunities

A. Chapter 6 of Henriksen (pp 101 – 125)

IMMUNITY FROM NATIONAL JURISDICTION AND DIPLOMATIC PROTECTION

Immunity
 one of the ways by which a national court may find that it lacks the competence to deal with a
matter that involves the interests of a foreign state

STATE IMMUNITY
What is the primary basis of state immunity?
It is based on customary international law.

Two Conventions that Regulate State Immunity

1) European Convention on State Immunity (1972)

-Adopted by the Council of Europe
-Entry into force: 1976
2) UN Convention on Jurisdictional Immunities of States and Their Property (2004)
-Adopted by the UN General Assembly
-Not yet in force but many of its provisions reflect customary international law

Q: Who can assert State immunity?

Only INDEPENDENT and SOVEREIGN states.
If there is doubt about an entity’s statehood, national courts will usually follow instructions from the
executive branch.

For purposes of State Immunity, the term “State” includes:

1. State and its various organs of government

2. Ministries
3. Diplomatic missions
4. Armed forces
5. Any other instrumentality that perform acts in the exercise of sovereign authority
6. A “private entity,” that performs official sovereign acts

Important distinctions between pleas of immunity for:

ADJUDICATIVE JURISDICTION
 Relates to the jurisdiction of a court to render judgment in a matter that involves a foreign
state
 A state cannot be sued in a foreign court unless it gives its consent; must be dealt with prior to
an inquiry on the merits of a case
ENFORCEMENT JURISDICTION
 Concerns the administrative and executive powers by whatever measures or procedures and
by whatever authorities of the forum state
 Question on immunity from enforcement only arises after the issue of jurisdictional
immunity has been dealt with and decided against granting the foreign state immunity;
HENCE, it is called, “the last bastion of State immunity.”
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Q: When must state immunity be granted?

 Whenever the circumstances of a case shows that a state is entitled to immunity and it is NOT
necessary for the foreign state to appear before the court and claim immunity

 DOCTRINE OF ACTS OF STATE

-a national court finds that it lacks the competence to rule on acts by foreign governments, in
its own territory and rejects the case as non-justiciable.

THE DISTINCTION BETWEEN SOVEREIGN AND

COMMERCIAL ACTS IN ADJUDICATIVE JURISDICTION

Immunity rationae personae

 The practical effect of absolute immunity was that 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.
 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.

Atty Pandi: It is very difficult to distinguish between sovereign acts and commercial acts.
So there are tests used to determine the act.

1. Private Individual Test

 classic method of distinguishing between sovereign and commercial acts.
Ask if the activity is one that can be performed by a private individual.
If the answer is “yes,” the activity is deemed to be commercial and thus NOT immune.
2. Purpose Test
 this is over inclusive, it can cover anything and everything.
3. Nature Test
 we look at the transaction itself, and if it involves commercial stages,
then that’s no longer a sovereign function; but this is also problematic because some sovereign
function take the nature of commercial stages
 That is why courts prefer the contextual approach, because it considers the purpose, the
nature, and the circumstances, it applies everything. This is the stricter approach.

Acts Deemed Non-Sovereign and Non-Immune in Character (ART 2(1)(c) 2004 UN

Convention):

1. Any commercial contract or transaction for the sale of goods or supply of services
2. Any contract for a loan or other transaction of a financial nature including any obligation of
guarantee or of indemnity in respect of any such loan or transaction
3. Any other contract or transaction of a commercial, industrial, trading or professional nature, but
not including a contract of employment of persons

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STATE IMMUNITY AND VIOLATIONS OF INTERNATIONAL LAW
 A foreign state should NOT be able to assert state immunity in relation to violations of
international law, including human rights violations.

EXCEPTIONS TO STATE IMMUNITY IN THE UN CONVENTION ON JURISDICTIONAL IMMUNITIES

OF STATES AND THEIR PROPERTIES (UN CJISP)
-Please refer to PandiNotes :)

IMMUNITY FROM ENFORCEMENT

Q: Why is immunity from enforcement considered “the
last bastion of State immunity?”
Since the issue of immunity from enforcement
only arises after jurisdictional immunity has been dealt
with and a national court has decided against the foreign state.

Consequences Exclusive to Immunity from Enforcement:

1) A waiver of immunity from execution must be
expressed separately (ART 20, UN CISP)
2) Unlike immunity from adjudication, immunity
from enforcement is by and large absolute
3) It may very well be that a national court concludes
that a foreign State is not immune from
proceedings but is immune from any enforcement
measures.

DIPLOMATIC IMMUNITIES AND PROTECTION

Purpose of Diplomatic Law:

1. 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.
2. Not to benefit the state representative in his or her
personal capacity but the state he or she represents
 Diplomatic relations is always based on mutual consent
 Presence of diplomatic mission of a foreign state
is based on the consent of the host state and the
latter is always free to revoke its consent without
having to offer any justification

ART 2, Vienna Convention on Diplomatic Relations

The establishment of diplomatic relations between States,
and of permanent diplomatic missions, takes place by
mutual consent.

ART 4, VCDR
1.The sending State must make certain that the agrément of
the receiving State has been given for the person it
proposes to accredit as head of the mission to that State.
2.The receiving State is not obliged to give reasons to the
sending State for a refusal of agrément.

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ART 9(1), VCDR
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.
2.If the sending State refuses or fails within a reasonable
period to carry out its obligations under paragraph 1 of this
article, the receiving State may refuse to recognize the
person concerned as a member of the mission.

IMMUNITY AND PROTECTION OF DIPLOMATIC AGENTS

ART 29—39, VCDR contains the relevant rules

concerning the protection and immunities of diplomatic staff.

ART 29, VCDR.

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.

ART 30, VCDR.

1.The private residence of a diplomatic agent shall enjoy
the same inviolability and protection as the premises of the
mission.
2.His papers, correspondence and, except as provided in
paragraph 3 of article 31, his property, shall likewise enjoy
Inviolability.

ART 34, VCDR

A diplomatic agent shall be exempt from all dues and
taxes, personal or real, national, regional or municipal,
except:
(a) Indirect taxes of a kind which are normally
incorporated in the price of goods or services;
(b) Dues and taxes on 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;
Xxxxxxxxxx
For the Rest of the provisions, just refer to VCDR :)

Atty. Pandi: There are two kinds of obligations under international law.
1. Obligations of Conduct- there is a required act.
2. Obligations of Result- has the result been met?
This mostly applies in international environmental law.

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PROTECTION OF DIPLOMATIC PREMISES AND PROPERTY

ART 22, VCDR

ART 24, VCDR

PROTECTION OF COMMUNICATION

ART 26, VCDR

ART 27, VCDR

OBLIGATIONS OF THE SENDING STATE AND ABUSE OF PRIVILEGE

ART 41, VCDR

Remedies of a Host State if a Sending State abuses Its Rights and Privileges:
1) By declaring the representative persona non grata.
It can withdraw its consent in respect of a member of the mission. In which cases, the sending
state MUST recall the individual or terminate his or her functions. (ART 9, VCDR)
2) Host state may break off diplomatic relations in serious case of abuse.

CONSULAR PROTECTION

Consular agents
 Unlike diplomatic agents, 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.
 Consuls play a less political role
 In contrast to diplomats, consular officers only
enjoy immunity rationae materiae in relation to
functions performed in the exercise of their official
functions

ART 31, Vienna Convention on Consular Relations

Atty. Pandi: What is a recall? It is a request to the

sending state, a wire to recall the diplomat. Failure of the
sending state to comply implies a waiver of immunity or
consent to immunity. We resort to three remedies:
1) Persona non grata
2) Recall
3) Severance of diplomatic ties
It is a self-contained regime because it can stand on its
own. It 1) foresees abuses, 2) it provides remedies of
Abuses

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IMMUNITY FOR REPRESENTATIVE ON
“SPECIAL MISSIONS”

Ad hoc diplomacy

 as an alternative or a supplement to
the creation of more permanent diplomatic and consular
relations, a state may conduct “ad-hoc” diplomacy and
send state representatives on “special missions” to other
states.
Special mission

 should be conceived as a temporary

diplomatic mission with the features of a regular
diplomatic mission, but for a limited period of time.
Immunities of a representative on a special
mission derive from the consent of the forum state
to the presence of the mission on its territory

1969 Convention on Special Missions—has entered into

force but has not yet been widely ratified. Its status under
international law is unclear.

B. Jurisdictional Immunities of the State (Germany v Italy: Greece intervening)

OVERVIEW:

 Italian Courts allowed civil claims to be brought against Germany based on violations of
international humanitarian law committed by Germany from 1943 – 1945 against Italian
citizens.
 Italian courts also permitted the enforcement of a judgement of the Greek courts in
Italy against Germany and took measures of constraint against a German property in Italy.
 Did Italy’s actions violate the customary international law right of jurisdictional immunity of
Germany?

Specific legal rules and provisions:

Art. 38 of the ICJ Statute.

Art. 11 of the European Convention for the Peaceful Setttlement of Disputes.
Art. 12 of the UN Convention on Jurisdictional Immunities of States and Their Property

FACTS:

 In 1940, Italy entered the Second World War as an ally of the German Reich.
 Subsequently, Italy surrendered to the Allies and declared war against Germany.
 At the time, German forces occupied significant Italian territory. It committed many crimes
against civilians and soldiers, including massacres, deportations and forced labour.
 After the end of the war, Germany enacted several laws to facilitate the payment of
compensation to these victims.
 However, thousands of former Italian military internees did not fall within these laws and
they could not get compensation in Germany (paras 20 – 27). These internees brought

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 civil cases against Germany in Italian Courts to claim compensation.
 Germany objected to the proceedings on the basis of jurisdictional immunity before
foreign courts. Italian Courts held that “…jurisdictional immunity is not absolute…” and that
“…in cases of crimes under international law, the jurisdictional immunity of States should be
set aside.”

Questions before the Court:

 Is jurisdictional immunity available to a State for acts committed by its armed forces in the
conduct of an armed conflict?
 If so, did Italy violate this immunity by allowing civil claims against Germany to be brought
before its courts and by enforcing the Greek judgement in Italy?
 Did Italy violate its international law obligations relating to Germany’s jurisdictional immunities
when it took measures of constraint against German property in Italy?

The Court’s Decision:

 Italy violated its obligation to respect Germany’s immunity under international law
by allowing civil claims to be brought against Germany based on violations of international
humanitarian law committed by the German Reich between 1943 and 1945, by declaring
enforceable in Italy decisions of Greek courts and by taking measures of constraint
against German property in Italy.

 The Court requested Italy to enact legislation, or resort to other methods of its choosing, to
ensure that the decisions of its courts and those of other judicial authorities infringing the
immunity which Germany enjoys under international law cease to have effect.

Relevant Findings of the Court:

Is jurisdictional immunity available to a State for acts committed by its armed forces
during an armed conflict?

The ICJ affirmed that jurisdictional immunities are available to a State before foreign
courts, for acts of its armed forces, which were committed during the conduct of an armed conflict.
In coming to this conclusion, the ICJ analysed:

(1) the customary nature of State immunity

State immunity derives from the principle of sovereign equality found in Article 2(1) of the
UN Charter. It is “one of the fundamental pillars of the international legal order.” As between
Italy and Germany this right is derived from customary international law, in the absence of
a treaty to that effect. Based on its analysis of State practice and opinio juris, the ICJ said,
“…practice shows that, whether in claiming immunity for themselves or according it to
others, States generally proceed on the basis that there is a right to immunity under `
international law, together with a corresponding obligation on the part of other States to
respect and give effect to that immunity.”

2) the relationship between jurisdictional immunity and the territorial sovereignty of

the forum State

“This principle [of State immunity] has to be viewed together with the principle that each State
possesses sovereignty over its own territory and that there flows from that

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sovereignty the jurisdiction of the State over events and persons within that territory.
Exceptions to the immunity of the State represent a departure from the principle of sovereign
equality. Immunity may [also] represent a departure from the principle of territorial sovereignty and
the jurisdiction which flows from it” (para 57).

(3) the classification of acts as falling under jus imperii or jus gestionis.

The ICJ discussed jus imperii (law governing the exercise of sovereign power) and jus
gestionis (law relating to non-sovereign activities of a State, especially private and commercial
activities). A domestic court has to assert the nature of the act (whether imperii or gestionis) before
it hears the case; because, this will determine if the State is entitled to immunity before the
domestic court

THE DISTINCTION BETWEEN SOVEREIGN AND COMMERCIAL ACTS IN ADJUDICATIVE

JURISDICTION

Immunity rationae personae—the practical effect of absolute immunity was that 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.

C. Oleynikov v Russia, ECtHR, App No. 36703/04, 14 March 2013.

FACTS:

 Applicant lent the Trade Counsellor of the Embassy of Korea, 1,500 US dollars to be repaid on
29 May 1997.
 IN a receipt, the debtor pledged a Totyota Camry car. Furthermore, a 1% interest per day of
delay was agreed upon.
 When the Trade Counsellor failed to pay, the applicant sent several letters of claim which were
unanswered.
 Thus applicant wrote to the Russian Ministry of External Affairs but he was told that the
Counsellor was a constituent unit of the Embassy and therefore an organ of the Republic of
Korea which acted on its own behalf and enjoyed immunity from suit and immunity from
attachment or execution.
 Applicant complained that Russian courts’ refusal to examine his claim and the
DPRK’s failure to give consent to an examination of his claim by Russian courts violated his
rights under ART 6 of the European Convention and ART 1 of Protocol NO. 1 to the
Convention (these provisions pertain to right of access to the Courts).

ISSUE:

Does the rule of State immunity from jurisdiction restrict the exercise of the right of access to court?

RULING:

 Such a limitation must pursue a legitimate aim and that State immunity was developed in
international law out of the principle par in parem non habet imperium, by virtue of which
one State could not be subject to the jurisdiction of another.
 The grant of immunity to a State in civil proceedings pursues the legitimate aim of complying
with international law to promote comity and good relations between States through the

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 respect of another State’s sovereignty.
 The impugned restriction must also be proportionate to the aim pursued. The Court observes
that the application of absolute State immunity has, for many years, clearly been eroded, in
particular with the adoption of the Convention on Jurisdictional Immunities of States and their
Property by the UN General Assembly in 2004. ART 10 of its Draft Articles endorsed the
principle of RESTRICTIVE IMMUNITY, having provided that a State CANNOT rely upon
immunity from jurisdiction if it engages in a commercial transaction with a foreign
natural or juridical person.

 The Draft Articles as now enshrined in the 2004 Convention apply under customary
international law, even if the State in question, has not ratified that convention,
provided it has not opposed it either.
 IN this case, the court considers the grant of immunity to a State in the present case
pursued the legitimate aim of complying with international law in order to promote
comity and good relations between States through the respect of another State’s
sovereignty.
 The domestic courts however, did not undertake any analysis of the nature of the transaction
underlying the claim. They thus made no effort to establish whether the claim related to acts
of the DPRK performed in the exercise of its sovereign authority or as a party to a transaction
of a private law nature.
 Thus by rejecting the applicant’s claim without examination of the essence of the dispute, the
Russian courts failed to preserve a reasonable relationship of proportionality. They impaired
the very essence of the applicant’s right of access to Court.

D. Underhill v. Hernandez, 168 US 250 (1897).

Mr. Chief Justice Fuller:

“Every sovereign State is bound to respect the independence of every other

sovereign State, and the courts of one country will not sit in judgment on the acts of the
government of another done within its own 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.”

 Hernandez was in command of a revolutionary army in Venezuela when an engagement took

place with the government forces which resulted in the defeat of the latter, and the occupation
of Bolivar by the former.
 Underhill was living in Bolivar, where he had constructed a waterworks system for the city
under a contract with the government, and carried on a machinery repair business.
 He applied for a passport to leave the city, which was refused by Hernandez with a view to
coerce him to operate his waterworks and his repair works for the benefit of the community
and the revolutionary forces.
 Subsequently a passport was given him. The revolutionary government under which
Hernandez was acting was recognized by the United States as the legitimate
government of Venezuela.
 Subsequently Underhill sued Hernandez in the Circuit Court for the Second Circuit to
recover damages caused by the refusal to grant the passport, for alleged confinement
of him to his own house, and for alleged assaults and affronts by Hernandez' soldiers.
 Judgment being rendered for defendant, the case was taken to the circuit court of
appeals, where the judgment was affirmed, the court holding "that the acts of the

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 defendant were the acts of Venezuela, and as such are not properly the subject of
adjudication in the courts of another government." Held that the circuit court of
appeals was justified in that conclusion.

RULING:

 The evidence upon the trial indicated that the purpose of the defendant in his treatment of the
plaintiff was to coerce the plaintiff to operate his waterworks and his repair works for
the benefit of the community and the revolutionary forces," and that "it was not sufficient to
have warranted a finding by the jury that the defendant was actuated by malice or any
personal or private motive;"
 The decree of the Circuit Court is affirmed.

NOTES:

 If the party seeking to dislodge the existing government succeeds, and the independence of
the government it has set up is recognized, then the acts of such government from the
commencement of its existence are regarded as those of an independent nation.
 If the political revolt fails of success, still if actual war has been waged, acts of
legitimate warfare cannot be made the basis of individual liability

E. The Jones vs. Ministry of Interior of Saudi Arabia case (House of Lords of UK
[2006]).

OVERVIEW:
 It is said that this case will enter legal history as one of the most prominent decisions
of the English courts on international law.
 The judgment has also been sharply criticised by some international lawyers, who hoped for
more activism in the development of international law by domestic courts

FACTS:

 Here, the claimants said that they had been tortured by Saudi police when arrested on
false charges.
 They sought damages,and appealed against an order denying jurisdiction over the defendants.
 The Kingdom claimed state immunity
 But the claimants said that the allegation of torture allowed an exception to state immunity.

Issue:
Whether the English court has jurisdiction to entertain proceedings brought by claimants
against a foreign state and its officials at whose hands the claimants say they suffered
systematic torture, in the territory of the foreign state?

RULING:

(Lord Binghan justified his decision by the European Convention on State Immunity, which showed
that the British absolutist position had ceased to reflect the understanding of international law
which prevailed in most of the rest of the developed world.)

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ABSOLUTIONIST PRINCIPLE—“the courts of a country will NOT implead a foreign sovereign,
that is, they will not by their process make him against his will, a party to legal
proceedings whether the proceedings involve process against his person or seek to recover from
him specific property or damages.”

 The Kingdom’s appeal succeeded. The protection of state immunity was essentially a
procedural one. It was not a matter where the court had a choice, and the Court of Appeal
had been wrong to take to itself any discretion.
 Torture cannot be justified by any rule of domestic or international law, but the
question at issue was whether such a norm conflicts with a rule which accords state
immunity: ‘The jus cogens is the prohibition on torture.
 But the United Kingdom, in according state immunity to the Kingdom, is not proposing to
torture anyone. Nor is the Kingdom, in claiming immunity, justifying the use of torture.
 It is objecting in limine to the jurisdiction of the English court to decide whether it
used torture or not.’

Part I of the 1978 Act was not disproportionate as inconsistent with a peremptory norm
or Jus cogens of international law and its application did not infringe the claimants’
rights under article 6 of the ECHR.

 Lord Bingham said: ‘. . the claimants must show that the restriction is not directed to a
legitimate objective and is disproportionate. They seek to do so by submitting that the
grant of immunity to the Kingdom on behalf of itself or its servants would be inconsistent with
a peremptory norm of international law, a jus cogens applicable erga omnes and superior in
effect to other rules of international law, which requires that the practice of torture should be
suppressed and the victims of torture compensated . .
 there is no evidence that states have recognised or given effect to an international
law obligation to exercise universal jurisdiction over claims arising from alleged
breaches of peremptory norms of international law, nor is there any consensus of
judicial and learned opinion that they should.
 This is significant, since these are sources of international law. But this lack of evidence is not
neutral: since the rule on immunity is well-understood and established, and no
relevant exception is generally accepted, the rule prevails.’
 Lord Hoffmann said: ‘But the same approach cannot be adopted in international law, which is
based upon the common consent of nations. It is not for a national court to
‘develop’ international law by unilaterally adopting a version of that law which,
however desirable, forward-looking and reflective of values it may be, is simply not
accepted by other states.’

IMMUNITY OF CERTAIN HIGHRANKING REPRESENTATIVE

-Immunity of heads of state is derived from customary international law.

F. Certain Questions of Mutual Assistance in Criminal Assistance (Djibouti v France),

Judgment [2008] ICJ Rep 177.

FACTS:

 The charred body of Judge Barnard Borrel, a French national and the Technical Adviser to the
Ministry of Justice of Djibouti was discovered 80 km from the city of Djibouti
 Djibouti conducted a judicial investigation which concluded that the Judge committed
suicide.

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 France, meanwhile, undertook its own investigation, in the French courts as Borrel’s widow
and children casted doubt on the alleged “suicide.”
 In 2004, the procureur de la Republique of Djibouti, raised the possibility of reopening the
Borrel case within Djibouti’s courts.
 Thus, Djibouti requested that the French judge handling the case in the French courts,
transmit the records of the case, pursuant to the Convention on Mutual Assistance in
Criminal Matters of 1986.
 However, France rejected this request stating that “the Djibouti’s request is not in the form
required by the Convention on Mutual Assistance in Criminal Matters between France and
Djibouti” and “is outside its framework” and “without regard for its provisions”
 Thus, Djibouti sent a second request for transmission of the Borrel file in the form of
an international letter rogatory.
 But the French judge refused to comply with the Djiboutan request saying that “to accede
would amount to an abuse of French law by permitting the handing over of documents that are
accessible only to the French judge,” and entail “directly delivering Fench intelligence service
documents to a foreign political authority,” and would “seriously compromise the fundamental
interests of the country and the security of its agents.”
 Furthermore, the French judge had issued a summons to the President of Djibouti, the
procurer de la Reublique and Head of National Security of Djibouti to testify as an ordinary
witness under French law. Djibouti reacted to this invitation to testify recalling the immunity of
jurisdiction enjoyed by any incumbent Head of State.
 Thus, Djibouti filed an application before the ICJ alleging that France, by issuing
witness summonses to the Djiboutan Head of State and Senior Djiboutan officials, breached
the Treay of Friendship and Cooperation, and the principles and rules governing the
diplomatic privileges and immunities laid down by the Vienna Convention on
Diplomatic Relations, and the principles under customary international law relating to
international immunities, as reflected by the Convention on the Prevention and
Punishment of Crimes against Internationally Protected Persons, including
Diplomatic Agents of 1973.

ISSUE:

Whether France violated the laws and principles of international law on immunity of certain
high-ranking representatives of State by issuing summons for them to testify in a criminal case
within French domestic criminal courts?

RULING:

THE ALLEGED ATTACKS ON THE IMMUNITY FROM JURISDICTION OR THE INVIOLABILITY OF THE
DJIBOUTAN HEAD OF STATE

 Court recalled the arrest warrant of (Democratic Republic of the Congo v. Belgium) case
“that in international law it is firmly established that . . . certain holders of high-ranking office
in a State, such as the Head of State . . . enjoy immunities from jurisdiction in other States,
both civil and criminal”

 In its opinion, a Head of State enjoys in particular “full immunity from criminal jurisdiction and
inviolability” which protects him or her “against any act of authority of another State which
would hinder him or her in the performance of his or her duties”

For Djibouti: The summons was not only inappropriate as to its form, but was, in the light of
Articles 101 and 109 of the French Code of Criminal Procedure, an element of constraint.

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For France: the witness summons addressed to the Djiboutian Head of State was purely an
invitation which imposed no obligation on him.

In the present case, the Court finds that the summons was not associated with the measures of
constraint provided for by Article 109 of the French Code of Criminal Procedure; it was in fact
merely an invitation to testify which the Head of State could freely accept or decline.
Consequently, the Court holds that there was no attack by France on the immunities from criminal
jurisdiction enjoyed by the Head of State.

Note:

 The Court recalls, moreover, that the rule of customary international law reflected in Article 29
of the Vienna Convention on Diplomatic Relations, whereby receiving States are under the
obligation to protect the honour and dignity of diplomatic agents, necessarily applies to Heads
of State.
 The Court emphasizes that the State which seeks to claim immunity for one of its
State organs is expected to notify the authorities of the other State concerned,
thereby enabling the court of the forum State to ensure that it does not fail to respect any
entitlement to immunity and might thereby engage the responsibility of that State.
 Further, the State notifying a foreign court that judicial process should not proceed, for
reasons of immunity, against its State organs, is assuming responsibility for any
internationally wrongful act in issue committed by such organs.
-Thus, the court did not uphold the 6th and seventh final submissions of Djibouti.

IMMUNITY OF OTHER STATE REPRESENTATIVES

Only a limited number of state representatives enjoy immunity for both official and private acts
(immunity rationae personae). All other state representatives are merely protected by immunity in
relation to the acts performed on behalf of the state they represent (immunity rationae materiae).
 Motives of the State representative are immaterial;
as long as an act is performed by an individual
with official authority or under the color of official
authority, it is an official act.
 Acts that fall outside the official function of a state
representative (conduct ultra vires) is still deemed
to be official acts if they are performed in a public capacity.

 Distinction between acts jure imperii and juri gestionis is irrelevant for purposes of attribution
i.e. a representative who perfoms a commercial act on behalf of a state enjoys
immunity whereas the state does not (due to the commercial character of the act)

FUNCTIONAL IMMUNITY OF HIGH RANKING FUNCTIONAL IMMUNITY OF NONHIGH-

OFFICIALS
The forum state exercising jurisdiction
against a foreign head of state, head
of government, or a minister
of foreign affairs is under an obligation to
consider the issue of immunity and make
its own consideration of whether or not
immunity bars the proceedings
RANKING OFFICIALS
Forum state is NOT obliged to consider the
immunity of other state representatives
unless the foreign state invokes it. If the
state of a non-high-ranking official wants
to protect its own official, it must notify the
forum state and assert that the
representative acted in an official capacity
and should thus enjoy immunity. If not, the

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 foreign state may proceed with the case.

G. Al-Adsani v UK, ECtHR, App No. 35763/97, 21 November 2001.

FACTS:

 Applicant is a trained pilot, who went to Kuwait in 1991 to assist in the defence against Iraq.
 During the Gulf War, he served as a member of the Kuwaiti Air Force, and after the Iraqi
invasion, remained behind as a member of the resistance movement.
 He came into possession of sex videotapes involving the Sheikh of Kuwait. By some means,
these tapes entered general circulation, for which the applicant was held responsible by the
Sheikh.
 When the Iraqi armed forces were expelled from Kuwait, the Sheikh and two other entered
applicant’s house, beat him and took him at gunpoint in a government jeep to Kuwaiti State
Security Prison where he was detained for several days and repeatedly beaten.
 He was released after being forced to sign a false confession.
 Subsequently, he was again taken by the Sheikh and was tortured
 He was treated on his return to England where he continually received threats warning him not
to take action. He suffered psychological damage and severe form of post-traumatic stress
disorder.
 He filed a civil suit but UK granted immunity to Kuwait. The applicant contends that the
UK had failed to secure his right NOT to be tortured, contrary to ART 3 of the ECHR
read in conjunction with ART 1 and 13.
Article 3 provides: “No one shall be subjected to torture or to inhuman or degrading
treatment or punishment.”
Article 1 provides: “The High Contracting Parties shall secure to everyone within
their jurisdiction the rights and freedoms defined in Section I of [the]
Convention.”
Article 13 provides: “Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity.”
ISSUES:

 Whether the United Kingdom had failed to secure the applicant’s right not to be tortured under
Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms
(‘European Convention on Human Rights’, ‘ECHR’) through the granting of immunity from civil
suit to Kuwait.

 Whether the applicant had been denied access to court, in violation of Article 6(1) of the ECHR,
in the determination of his claim against Kuwait

RULING # 1:

 Where an individual raises an arguable claim that he has been seriously ill-treated by the
police or other such agents of the State unlawfully and in breach of ART 3, that provision, read
in conjunction with the State’s general duty under ART 1 of the Convention, to “secure to
everyone within their jurisdiction the rights and freedoms defined in…[the] Convention,”
requires by implication that there should be an effective official investigation. However, in
each case, the State’s obligation applies only in relation to ill-treatment allegedly
committed within its jurisdiction.

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 ART 3 has some, limited, extraterritorial application, to the extent that the decision by a
contracting state to expel an individual might engage the responsibility of that State under the
Convention, where substantial grounds had been shown for believing that the person
concerned, if expelled, faced a real risk of being subjected to torture or to inhuman or
degrading treatment or punishment in the receiving country. In so far as liability under the
Convention might be incurred in such circumstances, it would have been incurred by the
expelling Contracting State by reason of its having taken action which had as a
direct consequence the exposure of an individual to proscribed ill-treatment.

 The applicant does not contend that the alleged torture took place within the
jurisdiction of the United Kingdom or that the United Kingdom authorities had any
causal connection with its occurrence. In these circumstances it cannot be said that the
High Contracting Party was under a duty to provide a civil remedy to the applicant in respect of
torture allegedly carried out by the Kuwaiti authorities.

CONCLUSION:

It follows that there has been no violation of ART 3 of the Convention in the present case.

UNIVERSAL JURISDICTION

Universal jurisdiction—certain offences are so serious and disruptive to international

society that any state may claim jurisdiction over them no matter where they have been
committed or by whom.

 Lack of direct link between the state and the offence makes this unique
 Crime of piracy that gave rise to the notion of universal jurisdiction.
 Offences: violations of norms of peremptory character/jus cogens: (1) genocide,
(2) crimes against humanity, (3) serious war crimes, (4) torture

Two Situations Whereby Universal Jurisdiction can be asserted:

1) Universal jurisdiction in absentia—Where a State asserts universal jurisdiction despite

the fact that the alleged offender is NOT even present on its territory (pure form)

ARREST WARRANT OF 11 APRIL 2000 (CONGO v. BELGIUM), Judgment, 2002, ICJ

2) Aut dedere aut judicare—obligation of a state in an increasing number of treaties to

either prosecute or extradite an alleged offender of specific offences who is located on the
territory of that

3) State (second or more limited form)

H. Arrest Warrant of 11 April 2000 (Congo v Belgium), Judgment [2002], ICJ Rep 3.

Facts of the Case:

 On 11 April 2000, a Belgian Magistrate issued an international arrest warrant against

Mr. Yerodia. At the time, Yerodia was the Foreign Minister of the Congo.
 The Court issued the warrant based on universal jurisdiction. It accused Yerodia of
inciting racial hatred.

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 These speeches, allegedly, incited the population to attack Tutsi residents in
Rwanda, which resulted in many deaths. The warrant alleged that Yerodia committed grave
breaches of the Geneva Conventions of 1949 and its Additional Protocols and crimes against
humanity.
 Belgium sent the arrest warrant to Interpol and circulated it to all States, including to the
Congo. The warrant asked States to arrest, detain, and extradite Yerodia to Belgium. After
Belgium issued the warrant, in November 2000, Yerodia became the Education Minister. At
the time of the ICJ’s judgement, he did not hold a Ministerial post in Congo.

Questions before the Court:

 Did Belgium violate principles of customary international law concerning the absolute
inviolability and immunity from criminal process of an incumbent Foreign Minister,
when it issued and internationally circulated the arrest warrant? If yes, did it violate
the principle of sovereign equality amongst States; does this alleged unlawfulness preclude
States who received the warrant from exercising it; should the Court order reparations; and
should Belgium recall and cancel its arrest warrant?

Note:

 The Congo placed two separate legal questions before the Court at the time of its application
to the ICJ.
 It contested Belgium‘s basis of jurisdiction – universal jurisdiction – stating that it violated the
principle of sovereign equality (see para 17 of the judgement).
 Both the Congo and the Court did not discuss this in its final submissions and judgement (see
paras 41 – 43, 45, 46). Several judges in their separate opinions discussed the issue (see
below).

Belgium‘s Objections:

 Belgium raised four objections to the jurisdiction of the Court. One argument was that there
was no longer a legal dispute because Yerodia was no longer the Foreign Minister. The Court
rejected all four objections (see paras 23 – 40, 44).

The Court’s Decision:

 The issuance and circulation of the arrest warrant violated Belgium’s international
obligations towards the Congo. Belgium failed to respect, and infringed, Yerodia’s
immunity and the inviolability enjoyed by him under international law.

Relevant Findings of the Court:

1. It is an established principle of international law that Heads of States and Governments,

Foreign Ministers and Diplomatic and Consular agents enjoys immunities from civil
and criminal jurisdictions of other States.

2. In the absence of treaty law, customary international law determines the immunities of Ministers
of Foreign Affairs. These immunities “…are not given for their personal benefit; but to ensure the
effective performance of their functions of behalf of their…States”. The functions of the Foreign
Minister require frequent travel to other countries. International law recognizes him as a
representative of the State solely by virtue of his office. The functions of a Foreign Minister are such
that – during his tenure – he enjoys absolute immunity from criminal jurisdiction and inviolability
when he is abroad.

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3. As the incumbent Foreign Minister, Yerodia enjoys immunity (during his tenure) for acts
performed, both, in an official capacity and in a private capacity. The immunity applies
regardless of whether the Minister is on foreign territory in an official or private visit.
This immunity extends not only to his actions during his tenure; but, also to his actions before he
became Foreign Minister.

“Thus, if a Minister for Foreign Affairs is arrested in another State on a criminal charge, he or she is
thereby prevented from exercising the functions of his or her office. The consequences of such
impediment to the exercise of those official functions are equally serious…. Furthermore, even the
mere risk that, by travelling to or transiting another State a Minister for Foreign Affairs might be
exposing himself or herself to legal proceedings could deter the Minister from travelling
internationally when required to do so for the purposes of the performance of his or her official
functions.”

4. The Court rejected Belgium’s argument that the Minister does not enjoy immunity because he
is accused of having committed war crimes or crimes against humanity. (Belgium relied
on the Pinochet Case (decided by the House of Lords, UK), the Qaddafi Case (decided by the
French Court of Cassation) and Statutes of International Criminal Court and Tribunals.)
The Court held that there was no exception in customary international law to the
absolute immunity of an incumbent Foreign Minister.

” It (the Court) has been unable to deduce from this practice that there exists under customary
international law any form of exception to the rule according immunity from criminal jurisdiction
and inviolability to incumbent Ministers of Foreign Affairs, when they are suspected of having
committed war crimes or crimes against humanity…The Court has also examined the rules
concerning the immunity or criminal responsibility of persons having an official capacity contained
in the legal instruments creating international criminal tribunals, and which are specifically
applicable … It finds that these rules likewise do not enable it to conclude that any such an
exception exists in customary international law in regard to national courts.”

5. International Conventions give jurisdiction to national Courts over various crimes

and, at times, requires them to exercise this jurisdiction [for example, the Torture
Convention]. This requirement does not affect the immunities given to Foreign Ministers under
international law. Despite international conventions establishing domestic jurisdiction, Foreign
Ministers are immune before foreign courts.

6. Immunity does not mean impunity. The person continues to be individually

responsible for the crime he committed.

“While jurisdictional immunity is procedural in nature, criminal responsibility is a question of

substantive law. Jurisdictional immunity may well bar prosecution for a certain period or for certain
offences; it cannot exonerate the person to whom it applies from all criminal responsibility….”

7. The Court set out four situations where an incumbent or former Foreign Minister could be
prosecuted:

a. Prosecution in his own country according to the domestic law (the international law of
immunity is not recognized before a person’s national courts);

b. If his country waives his immunity, then prosecution before a foreign court;

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 c. Once he ceases to be the Foreign Minister, he no longer enjoys immunity before foreign
courts for private acts committed during his tenure as Foreign Minister; and for all acts
committed before or after his tenure in office; and

d. Prosecution before an international criminal body, with the necessary jurisdiction (for
example the ICC).

8. The ICJ concluded that the issuance and circulation of the arrest warrant violated
Belgium’s obligations towards Congo, “in that it failed to respect the immunity of that Minister
and, more particularly infringed the immunity from criminal jurisdiction and the inviolability enjoyed
by him under international law.” It did not matter that Yerodia was never arrested.

“Since Mr. Yerodia was called upon in that capacity to undertake travel in the performance of his
duties, the mere international circulation of the warrant… could have resulted, in particular, in his
arrest while abroad. The Court observes… Mr. Yerodia, “on applying for a visa to go to two countries,
[apparently] learned that he ran the risk of being arrested as a result of the arrest warrant issued
against him by Belgium”… the arrest warrant ‘sometimes forced Minister Yerodia to travel by
roundabout routes”‘.

IMMUNITY AND PROTECTION OF DIPLOMATIC AGENTS

ART 29—39, VCDR contains the relevant rules concerning the protection and immunities of
diplomatic staff.

I. United States Diplomatic and Consular Staff in Tehran (United States v Iran),
Judgment [1980] ICJ Rep 3.

FACTS:

 The case was brought before the Court by Application by the United States following the
occupation of its Embassy in Tehran by Iranian mili1tants on 4 November 1979, and the
capture and holding as hostages of its diplomatic and consular staff.
 On a request by the United States for the indication of provisional measures, the Court
held that there was no more fundamental prerequisite for relations between States
than the inviolability of diplomatic envoys and embassies, and it indicated provisional
measures for ensuring the immediate restoration to the United States of the Embassy
premises and the release of the hostages.
 Invoking these alleged crimes of the United States, the Iranian Foreign Minister took the
position that the United States' Application could not be examined by the Court divorced from
its proper context, which he insisted was "the whole political dossier of the relation between
Iran and the United States over the last 25 years.”

ISSUE: Are the attacks imputable to Iran, despite the fact that there is no sufficient link between
the militants and any competent organ of the State?

RULING:

 The fact that the attacks cannot be considered in itself imputable to the Iranian State does not
mean that Iran, is, in consequence, free of any responsibility in regard to those attacks; for its
own conduct was in conflict with its international obligations. BY a number of provisions of the

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 Vienna Conventions of 1961, an 1963, Iran was placed under the most categorical
obligations, as a receiving State to take appropriate steps to ensure the protection
of the United States Embassy and Consulates, their staffs, their archives, their means of
communication, and the freedom of movement of the members of their staffs.

 The premises of a diplomatic mission is inviolable. Under ART 22 of the 1961 Convention,
“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.”

 In its decision on the merits of the case, The court, found that Iran had violated and was
still violating obligations owed by it to the United States under conventions in
force between the two countries and rules of general international law, that the
violation of these obligations engaged its responsibility, and that the Iranian Government
was bound to secure the immediate release of the hostages, to restore the Embassy
premises, and to make reparation for the injury caused to the United States Government.
 The Court noted that, after 4 November 1979, certain organs of the Iranian State had
endorsed the acts complained of and decided to perpetuate them, so that those
acts were transformed into acts of the Iranian State.
 The Court gave judgment, notwithstanding the absence of the Iranian Government and after
rejecting the reasons put forward by Iran in two communications addressed to the Court in
support of its assertion that the Court could not and should not entertain the case.

J. Rosalyn Higgins, The Abuse of Diplomatic Privileges and Immunities: Recent United
Kingdom Experience, 79 American Journal of Int’l L. 641).

 It has frequently been observed that there is generally good compliance with the law of
diplomatic immunity because here, almost as in no other area of international law, the
reciprocal benefits of compliance are visible and manifest.
 Virtually every state that is host to a foreign diplomatic mission will have its own embassy in
the territory of the sending state.
 Every state wants its own diplomats operating abroad, and its own diplomatic bags,
embassies and archives, to receive those protections that are provided by international law.
 Honoring those same obligations vis-à-vis the diplomatic community in one’s own country is
widely perceived as a major factor in ensuring that there is no erosion of the
international law requirements on diplomatic privileges and immunities.
 The purpose of diplomatic law is to facilitate international diplomacy, balancing the
pursuit of the foreign policy interests of the sending state with respect for the territorial
sovereignty of the receiving state. However, immunity does not entitle diplomats to
flout local laws.

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RESOURCES:

 Cambridge University Press

 Diplo
 European Court of Human Rights
 Henriksen, Public International Law
 International Court of Justice Case Summaries
 PANDI-NotesPILComplete
 The Hague Justice Portal

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