51.363

Week 7 – State & Diplomatic Immunities

Principle of immunity cornerstone of international relations
Based on notion of equality of states (par in parem non habet imperium)

Two Kinds of Immunities:

I. Sovereign/state immunity: immunity of the state from domestic courts of other countries
II. Immunities attaching to agents of foreign states/ international organizations representing their home states abroad

sovereign & diplomatic immunity the two principle exceptions to exercise of territorial jurisdiction

State Immunity

• universally recognised principle of international law
• states immune from jurisdiction of other states' courts

Two Approaches:
Sovereign immunity used to be absolute, but increased state involvement in commercial activity meant state-run Enterprises had unfair advantage
• old doctrine –- states had absolute immunity
• ‘restictive approach' (new doctrine) – states have restrictive immunity – are liable for commercial activities
• two issues arise from restrictive approach:
a) paradox: introduced to cope with government intervention in commercial affairs, yet such intervention is deliberate act of state policy
b) extremely difficult to draw line between public and commercial activities (commercial vs public) object

Today, most countries have adopted a restrictive (modified) immunity approach re state trading enterprises.

1972 European Convention on State Immunity: specifies when immunity may/may not be claimed before the courts of contracting states

1985 Canada clarifies its position, moving from absolute to restrictive immunity

There are various rationales for state immunity:

• formal explanation: relies on the perfect equality & absolute independence of states – ‘par in parem non habet imperium' : one cannot exercise authority over an equal
• functional rationale finds it necessary for effective international relations/comity
• fictional approach assumes rule is implied when state consents to enter another state
Types of State Immunity

Ratione Personae:
• immunity attached to the person of a state representative only while in office
• applies to head of state, foreign minister, (probably) government ministers

Ratione Materiae:
• immunity attached to official acts of state representative
• "official acts" are truly governmental in nature (jus imperii) & not commercial/private in nature (jus gestionis)
• international crimes cannot constitute official acts
• applies to acts of state/government/officials/agents – also constituent units of states
• also applies to acts of any governmental organ, depending on whether the entity carries out essentially government functions & to what extent the entity is subject to state control

Corollaries to state immunity:
• foreign states have privilege of appearing as a plaintiff in foreign courts, usually against private persons – runs risk of counterclaims to which it is not immune
• it is a reciprocal doctrine, rooted in comity (‘courtesy') – but now legally binding as customary IL

A state may waive immunity, giving rise to enforcement jurisdiction

Diplomatic Immunity

• ability to represent one's home state depends on freedom to engage in activity unhampered by municipal laws
• rise of permanent (as distinct from temporary) diplomatic missions dates only 17th- century
• original effort at codification of general rules of customary law Congress of Vienna 1815
• Still predominantly customary law when codified in Vienna Convention on Diplomatic Relations (1961)

Having consented to diplomatic representation, receiving state obliged to:
• enable sending state to establish its representation (at least not hinder)
• maintain adequate security to protect diplomatic envoy
• avoid encouraging harm to diplomatic personnel or property – may be construed as state act: US Diplomatic & Consular Staff in Tehran Case (1979-80) ICJ
• premises/elements of mission are inviolable, even in event of war or severance of relations – British/Lybia Case 1984 – British authorities refuse to enter premises of Lybian Embassy until two days after expulsion of diplomats – diplomatic status of premises didn't expire ‘til then
• persons & residences of diplomatic personnel are inviolable – cannot be arrested, detained, searched, etc.
• immunity belongs to the state and not the individual – foreign state can wave immunity for its employees
• locally employed personnel will not normally receive immunity
• diplomatic envoys & families (if not nationals) exempt from local civil and criminal jurisdiction for private and public acts
• debate as to whether diplomats should simply enjoy functional immunity (i.e. re acts related to their jobs) or full immunity
• communications of the mission/sending state are inviolable (diplomatic bag)
• exceptions in cases of civil & administrative jurisdiction for subordinate diplomatic staff
• proposed diplomatic staff must be acceptable to receiving country
• once diplomat's credentials end, immunity expires after diplomat has had reasonable time to leave
• any agent/representative of a foreign state can be declared persona non grata, requiring representative to leave
• diplomatic staff declared persona non grata allowed grace period during which immunity continues

Problem of serious crimes committed against diplomatic envoys and diplomatic missions addressed by UNGA in Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents 1973

Consular Immunity

• consular staff not same as diplomatic staff
• not concerned with political affairs
• consuls largely oriented to representation of commercial interests of foreign state and administrative issues – i.e. issue of visas
• consular relations much older than diplomatic – consuls originally elected by merchants resident in a foreign country from amongst themselves
• modern system dates from 16th century
• consuls usually have little contact with host government unless no diplomatic mission – usually communicate through representative diplomatic envoy
• consular relations largely governed by bipartite agreements till 1963
• Vienna Convention on Consular Relations adopted in 1963
• 1963 Convention modelled on 1961 diplomatic convention
• outside of special agreements, consuls immune from arrest, detention, and criminal process only re acts/omissions in performance of their official functions
• members of consuls families do not enjoy the same sweeping immunities afforded their diplomatic counterparts

Immunity in any instance can be negated by waiver by home government or superior diplomatic/consular staff

International Organizations
• have been accorded many similar immunities to those enjoyed by diplomatic and consular staff
• The Vienna Convention on the Representation of States in Their Relations International Organizations of a Universal Character 1975
• many similarities with 1961 Vienna Convention
• customary rules unclear with respect to international organizations
• usually governed by treaty
• most important example General Convention on the Privileges and Immunities of the United Nations 1946
• Convention sets out immunities of the United Nations and its personnel and emphasizes inviolability of premises, archives & documents