12-13 Immunities - Lecture notes 12-13 PDF

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Summary

What is Immunity? ● Protection or exemption from something, especially an obligation or penaltyState Immunities ● States are exempt from the jurisdiction of other states ○ Basis and justification for the law of state immunity: an equal has no authority over an equal ■ Sovereign equality ● *State can...

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What is Immunity? ● Protection or exemption from something, especially an obligation or penalty State Immunities ● States are exempt from the jurisdiction of other states ○ Basis and justification for the law of state immunity: an equal has no authority over an equal ■ Sovereign equality ● *State can waive their jurisdiction/immunity ● Immunity granted from judicial power but may relate to executive/administrative power ● State includes the sovereign or other heads of state in their public capacity, government, and departments of that government ○ Excludes separate entities which are distinct from the executive organs of the government unless → proceedings relate to the exercise of sovereign authority ● (1) Do they have jurisdiction? ● (2) Is it exempt from the normative rule? Absolute vs Restrictive State Immunity Absolute ● In all circumstances, state is absolutely immune before foreign courts ○ China, Thailand, etc. still practice this → other ways to regulate the state, ex. contracts ● Parlement Belge ○ government vessel used for other trading purposes did not take away the immunity attaching to the public vessel ● Schooner Exchange v McFaddon ○ American ship seized by Napoleonic order and commissioned to be a French ship ○ Ship docked back in the US because of a storm, the US attempted to argue the ship was taken illegally ○ Held: legality of the Napoleonic decree is not something the US jurisdiction can decide on → it was a French ship with absolute immunity ■ Implied waiver of jurisdiction → friendly warship that enters a nation's open port Restrictive ● UK State Immunity Act 1978 applies this doctrine ○ attempts to list the categories of non-immune acts (commercial transactions, employment contracts, etc.) ● state is immune in both criminal or civil proceedings before foreign courts for acts ‘jure imperii’ only ● Jure imperii - Act concerns the exercise of sovereign power ○ Jurisdictional Immunities of the State (Germany v Italy) ■ Italian courts dealing with victim proceedings, awarding damages against Germany with regards to Nazi war crimes in WW2 (violations of international human rights and humanitarian law) ■ Violations of jus cogens did not deprive Germany of state immunity (part of customary international law) ■ Italy was obligated to render the decisions of its courts against Germany without effect ○ Al-Adsani ■ Applicant (half Kuwaiti/half British) was tortured in Kuwait → sought remedy in England ■ UK was not in a position to comment on the accuracy of these claims, could only offer a judgement against a particular individual, not the Kuwaiti Government ● Jure gestionis - Act concerns non-sovereign activities of a State (private and commercial parties)

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I Congreso ■ Chile breached a contract with Cuba by withdrawing their sugar cargo → thus breaking trade relations ■ Emphasizes the nature or context of the act, not its purpose to distinguish between jure imperii and jure gestionis ■ Chile was not able to point to the act being done jure imperii → act has to be a governmental act as opposed to an act which any private citizen can perform (acted through managing operators) ○ Trendtex v Nigeria Bank ■ Central Bank issuing a line of credit for cement for construction ■ When the line of credit was stopped, cement company sued for breach ■ Could the bank be given government status and receive state immunity from being sued ■ Look at the organization and determine whether it was under government control and exercised government functions ■ Central Bank exercised other functions besides governmental → no immunity in commercial transactions Immunity from Execution ● UK State Immunity Act S13 → property which are immune from seizure ○ Diplomatic and military property, central bank, etc. ■ Banks accounts used for mixed purposes will be treated as immune ● UN Convention S21 adds a new category of immune property → relating to state heritage and exhibition of objects of scientific, cultural, or historical interest Immunities of State Officials/Agents ● Immunity ratione personae - by virtue of office (Head of State or Foreign Minister), immunity enjoyed by a person in their personal capacity ● Immunity ratione materiae - immunity attached to the official acts of State officials/agents Head of State ● UK State Immunity Act S20 → by virtue of office, absolute immunity from criminal jurisdiction ratione personae (not civil matters) ● When leaving office, ex Heads of State enjoy immunity ratione materiae in relation to official acts performed in office ○ Pinochet ■ Pinochet overthrew the Chilean government in a military coup → became the Head of State ■ He resigned, but when visiting the UK for medical treatment, Spain requested extradition to face charges ■ Did torture constitute an official act and thus could be covered by immunity ratione materiae? ● Immune for past actions as Head of State but not for international crimes such as torture ■ Hoffman’s affiliation with Amnesty International → new trial ■ Universal jurisdiction → arising from both Convention Against Torture and customary international law → UK could extradite for torture ■ BUT in this circumstance, Pinochet was very ill and released back to Chile Foreign Minister ● Arrest Warrants

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Belgium issued an international arrest warrant (universal jurisdiction), charging the accused (Congo Minister of Foreign Affairs) with war crimes ○ Relevant date for assessing immunity in relation to the issue of an international arrest warrant is the date on which the warrant is issued ○ Immunity ratione personae also applies to Ministers of Foreign Affairs (travelling and representing the State abroad) ○ Belgium had to cancel the arrest warrant Other State Officials ● State officials enjoy immunity ratione materiae Foreign Act of State / Non-Justiciability Doctrine ● Belhaj v Straw; Rahmatullah v Ministry of Defence ○ Joint appeal alleging UK involvement in breaches of human rights by foreign governments ○ Government argued that UK courts were not permitted to rule on the legality of acts by foreign governments → claimed state immunity ○ HELD: doctrine of sovereign immunity did not apply because the foreign governments were not parties to the cases and their legal interests were not affected by the claims put forward ■ Claim against British forces for complicity abroad Diplomatic Immunities ● Vienna Convention on Diplomatic Relations → functional and representative, enables international relations to continue ● Immunity can be waived → has to be explicit ● Once office is left, immunity becomes ratione materiae ● Privileges: ○ Immunity from jurisdiction of domestic courts ○ Taxes ○ Inviolable immunity → himself, his family, members of staff, the premises of the mission, private residence, diplomatic bag, correspondence, etc. ● Fawaz Al Attiya v Hamad Bin-Jasim Bin-Jaber Al Thani ○ Al Attiya faced alleged torture and confiscation of property on behalf of agents of Hamad ○ No jurisdiction since Hamad has diplomatic immunity ● Though there is fear of abuse of immunities, the current regime seems stable and there is no desire amongst states to alter the system...