Lecture 8 - Immunity

• In international law certain persons and institutions are immune from the jurisdiction of foreign municipal courts.

• The principal ones are foreign states,and foreign Heads of State, Diplomatic agents, Consuls, and international institutions, their officials and agents.

Lecture 18.1 State Immunity

• Under customary International law, a foreign state or foreign head of state could sue in a foreign court but could not be sued without his consent.

• The basis of this immunity is the equality of sovereigns who cannot therefore exercise power over one another

• Immunity may be absolute or restricted

Lecture 18.2

• Disputes with foreign states or foreign heads of state are normally conducted through diplomatic channels

• The property of a foreign state, such as a warship or an embassy is protected by immunity

• A head of state traveling abroad is entitled to complete immunity and any building occupied by him is exterritorial.

Lecture 18.3

• Acta Jure Imperii and Acta Jure Gestionis

• The most controversial aspect of the doctrine of immunity is whether it embraces all state acts or only some of them.

• The distinction between Acta Jure Gestionis, i.e, Commercial activities and Acta Jure Imperii, i.e, purely governmental activities- is not always easy to make.

Lecture 18.4

• When governments restricted themselves to purely governmental Functions it was easier to concede them immunity.

• The increasing involvement of governments in commercial activities has led to an increasing number of distinguishing between purely governmental functions and commercial activities and restricting immunity to the former.

Lecture 18.5

• Exceptions to the Rule• There are situations when immunity will not

operate.1. Once a foreign state or foreign head of state

sues as plaintiff, immunity will not avail for a counter-claim or set-off arising from the same disputes.

Lecture 18.6

• Suits relating to land within the jurisdiction, not being land which the embassy is established are not affected by a claim of immunity

• Winding up proceedings in which a foreign state or foreign sovereign claims an interest.

Lecture 18.7

• Diplomatic Immunity• Is contained in the Vienna Convention on

Diplomatic Relations (1961)

• There are three theories on which diplomatic immunity is based.

Lecture 18.8

1. The exterritoriality theory according to which diplomatic premises are assimilated to the territory of the sending state

2. The “representative character”, theory based on the theory that the diplomatic mission personifies the sending state

3. The functional theory considers that immunities and privileges are necessary for the mission to perform its functions effectively.

Lecture 18.9

• The Vienna Convention on Diplomatic Relations divides heads of diplomatic missions in their order of precedence into:

a) Ambassadors or Nunciosb) Envoys, Ministers and internunciosc) Charges d’affaires are accredited to

ministers for foreign affairs.

Lecture 18.10

• The above are usually appointed with the prior consent of the receiving state but may be withdrawn unilaterally.

• They are immune from local,civil and criminal jurisdiction

• Their persons, premise, archives and documents are inviolable

Lecture 18.11

• Diplomats are not exempted from observing the law but are rather immune from te jurisdiction of the courts.

• Since immunity really belongs to the state it may be waived by the state or the diplomat’s superior regardless of his own wishes (persona non grata)

• Such waiver exposes him to prosecution or litigation.s

Lecture 18.12

• Diplomatic premises and diplomatic bags are intended for official uses only and their misuse may invite appropriate intervention by the receiving state.

• A diplomat who misuses his immunity forfeits it and is declared persona non grata and asked to leave.

Lecture 18.13

• Consular Immunity• The principal functions of consuls is the

protection and promotion of commercial and economic interests and extends to the issuing of passports and visas.

• They also help nationals of the sending state ,jurisdiction over its shipping,supervision of treaty implementation and performing …. acts

Lecture 18.14

• Consuls are granted special privileges and exemptions in bilateral treaties and these include immunity from proceedings and inviolability for papers and archives.

• Immunity of International Organisations and their agents

Lecture 18.15

• The immunity of international organisations is based on the need to carry out their duties without interference

• The immunities granted to representatives include immunity from arrest, seizure of baggage, libel in respect of words spoken in the performance of duty, inviolability of papers, exemption from alien registration, freedom from direct taxes, diplomatic status for high ranking officials and special immunities for others.