Anthony Aust. Handbook of International Law
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78. See LaGrand (Germany v. USA), ICJ Reports (2001) p. 9, para. 128; 118 ILR 37.
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although, unlike a diplomatic mission, this is assumed ‘in case of fire or other disaster requiring
prompt protective action’ (Article 31).
79
The consular bag is inviolable but, unlike the diplomatic
bag,
80
if the receiving state has ‘serious reason’ to believe that it contains something other than
official correspondence, documents or articles intended exclusively for official use, it may request
that the bag be opened in the presence of an authorised representative of the sending state. If the
request is refused, the bag must be returned to its place of origin (Article 35(3)).
81
If criminal proceedings are instituted against the head of post and any other consular officer (not
‘consular employees’, who are support staff), they must appear before the competent judicial
authorities, but may not be arrested or detained pending trial, except in the case of a ‘grave crime’
and pursuant to a judicial order (Article 41). But consular officers and consular employees are
immune from both the criminal and the civil jurisdiction of the receiving state ‘in respect of acts
performed in the exercise of consular functions’.
82
The only exceptions to this are civil actions on a
contract concluded by a consular officer or employee who did not expressly or impliedly contract as
agent of the sending state, and actions by a third party for damage arising from an accident caused by
a vehicle, vessel or aircraft (Article 43). In addition, all members of a consular post can be called by
a court to give evidence. If a consular officer should decline, he cannot be forced or penalised, but
other members of the post cannot decline to be a witness (except on matters to do with their official
functions) or to produce official correspondence or documents (Article 44). All these protections can
be waived (Article 45).
Honorary consuls can perform the same duties as career consular officers, but are usually local
businessmen (and often local or third state nationals) and unpaid. The Convention generally applies
to them as to career consular officers (see Articles 58–68). The most important exceptions are that
neither his premises nor his person is inviolable and he must appear before the court if criminal
proceedings are instituted against him (Article 63), although he is immune from criminal jurisdiction
in respect of official acts even if he is a local national or permanent resident (Articles 58(2) and
1(1)).
79. Cf. diplomatic missions.
80. See p. 134 above.
81. See Denza, pp. 199–203.
82. See Oppenheim, pp. 1144–6 for examples.
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7 State immunity
L’état c’est moi.
1
Fox, The Law of State Immunity, Oxford, 2004
2
Oppenheim. Oppenheim’s International Law, 9th edn, London, 1992, pp. 341–76
Shaw, International Law, 5th edn, Cambridge, 2003, pp. 621–67
State immunity is also known as sovereign immunity, reflecting its origins in the sanctity of
kingship. State immunity may be pleaded by a foreign state when a person wishes to make it a party
to legal proceedings in the court of another state, usually as the defendant. If successful, the plea
prevents the court from exercising jurisdiction over the state, provided of course that it has
jurisdiction in the particular case. The dispute can then be disposed of only by the courts of the
foreign state itself, by an international court or tribunal or by diplomatic settlement. Originally, state
immunity was absolute, and remained so into modern times even though states were then carrying
out many commercial transactions abroad. It was not until the second half of the twentieth century
that a restrictive approach – removing immunity for commercial matters – came to be generally
accepted.
State immunity is a doctrine of customary international law. But unlike the law of state
responsibility, which has been developed almost entirely by international courts and tribunals, state
immunity is much more the product of judgments of domestic courts. Their approaches to state
immunity reflect differences between their legal, political and economic systems. But, in recent
decades, there has been more convergence in domestic legislation and judgments, so that it is now
easier to describe the law of state
1. Louis , 13 April 1655.
2. Most unfortunately, it was published before it became clear that there would be a UN convention on the
subject. The paperback edition published in 2004 has a new preface on that and other recent developments.
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immunity.
3
This is now helped by the UN General Assembly’s adoption on 2 December 2004 of the
UN Convention on the Jurisdictional Immunities of States and Their Property (in this chapter, the
‘UN Convention’).
4
The (integral) annex to the Convention contains ‘Understandings’ with respect
to certain of its provisions. The Convention does not apply to questions of immunity involving states
or their property arising in proceedings instituted before its entry into force (after thirty ratifications),
except insofar as it reflects customary international law.
5
But, even before then, the Convention may
well influence domestic courts who will by their judgments still develop the law. Therefore, the best
advice one can give to anyone with a claim against a foreign state, or indeed the state itself, is to
instruct lawyers who really are expert in the local law on state immunity. But first we must
distinguish state immunity from other related subjects.
The relationship of state immunity to other legal doctrines
Diplomatic immunity distinguished
When an embassy is involved in a transaction there is often confusion between diplomatic immunity
and state immunity, although legal proceedings should almost always be against the sending state,
not the embassy or any member of it (see p. 138 above for a most practical example). As with
diplomatic immunity, state immunity does not mean that local law is not applicable to a foreign
state, only that it cannot be enforced by legal proceedings unless the immunity is waived. But, given
that the purpose of diplomatic immunity is the protection of diplomats, it is, apart from certain minor
exceptions, absolute. Because the customary international law on diplomatic immunity was so well
developed, it was possible to codify it in 1961 in the Vienna Convention on Diplomatic Relations.
That law is as firm and accepted today as in 1961. Unfortunately, that cannot be said of the law of
state immunity, even though it has undergone considerable changes in the last forty years, and is no
longer absolute.
3. For a perceptive introduction to the basic problems, see Higgins, pp. 78–86.
4. A/RES/59/38. The Convention is also at www.untreaty.un.org/English/treaty.asp (go to ‘Access to
Databases’, then ‘Texts of Recently Deposited Multilateral Treaties’). The text was based on a draft by the
ILC: see A. Watts, The International Law Commission 1949–1995, Oxford, 1999, vol. , pp. 1999–2103.
5. See p. 8 above on the effect of such treaties on customary international law.
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Non-justiciability
In contrast to state immunity, the doctrine of non-justiciability applies when a foreign court does
have jurisdiction, for example in proceedings between private parties, but declines to exercise it,
either at the request of the defendant or on its own initiative. Under the doctrine, a domestic court
may decide not to exercise jurisdiction even over private parties if the object of the dispute relates to
inter-state matters for which the court considers there to be no judicial or objective standards by
which to judge the issues. Non-justiciability can also describe a rule of private international law,
6
under which a court applies the law of the foreign state and recognises the validity of its legislation
and acts done according to that law.
7
This can be criticised as an example of judicial timidity, since
the legality under international law of many acts of foreign states can be judged by domestic courts.
International law provides an objective standard by which the validity of acts can be assessed, and so
any adverse effect of the judgment on foreign relations is less likely. The English courts have
refused to recognise Nazi laws discriminating against Jews
8
and, more recently, Iraqi legislation
violating basic principles of the UN Charter.
9
But there are other cases where the underlying issue is
better decided by an international court or tribunal in proceedings to which the state is a party, such
as a maritime boundary dispute.
10
Act of state
Non-justiciability must be distinguished from a substantive defence known as act of state.
11
In
English law, this normally refers to a defence to an action for a tort committed abroad whereby in
response to a claim by an alien the defendant may plead that he acted under the orders, or with the
approval, of the British Government. The term is also used to describe a doctrine developed by the
US courts. It is not a rule of international law; rather it is more to do with the respective
constitutional roles
6. See p. 1 above.
7. Luther v. Sagor [1921] 3 KB 532; 1 AD 49.
8. Oppenheimer v. Cattermole [1976] AC 249; 72 ILR 446.
9. Kuwait Airways v. Iraqi Airways [2002] 2 AC 883; [2002] 2 WLR 1353; [2002] 3 All ER 209; 125 ILR
602. For a detailed examination of the case and of the English law on non-justiciability, see Fox, The Law
of State Immunity, Oxford, 2004, pp. 489–502.
10. See Buttes Gas and Oil Company v. Hammer [1982] AC 888; [1981] All ER 616; 64 ILR 331.
11. See Oppenheim, p. 368, n. 15.
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of the US judiciary and executive. Under this doctrine, US courts exercise restraint in not
questioning the validity of the taking of property abroad by a foreign state, even if it may have been
done in breach of international law, unless there is a treaty with the foreign state governing the
matter.
12
The approach is similar to that of non-justiciability.
Human rights
In 2002, the European Court of Human Rights ruled that in the present state of international law
state immunity is not incompatible with human rights.
13
Sources of the law on state immunity
It may be some time before the UN Convention enters into force. It is not clear to what extent parts
of it reflect customary international law or represent progressive development. Nevertheless, the
Convention, being the only universal treaty on the subject, represents a good basis from which to
examine what the customary law is or, at least, may be. The Convention will therefore be the focus
of the following pages, even though in parts it is rather lacking in clarity and certainty, and the law
of state immunity will vary from state to state.
The Convention will be discussed along with the only other treaty on the subject, the European
Convention on State Immunity 1972 (in this chapter, the ‘European Convention’),
14
since Article 26
of the UN Convention provides that nothing in it shall affect rights and obligations under existing
treaties on state immunity. Although the European Convention is much concerned with reciprocal
enforcement of judgments by the parties to it (only eight), it has been influential in the formulation
of legislation by other states. Two leading pieces of legislation will examined: the State Immunity
Act 1978 (in this chapter, the ‘UK Act’),
15
which largely follows the European Convention, and the
Foreign Sovereign Immunities
12. Sabbatino, 35 ILR 1. See Fox, pp. 482–9 and Shaw, pp. 170–2.
13. Al-Adsani v. UK, ECHR App. No. 35763/97; 123 ILR 24.
14. 1495 UNTS 182 (No. 25699); ILM (1972) 470; UKTS (1979) 74.
15. ILM (1978) 1123. The legislation of Australia, Canada, Malawi, Pakistan, Singapore and South Africa
has been modelled on the Act, and the UN Convention has borrowed several of its provisions. The Act
does not apply to visiting forces (s. 16(2)) to which only the common law applies: see Holland v. Lampen-
Wolfe [2000] 1 WLR 1573; [2000] 3 All ER 833; 119 ILR 367, and p. 175 below.
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Act 1976 (in this chapter, the ‘US Act’), as amended.
16
(It is the policy of the US Government not
to assert more immunity abroad than a foreign state would enjoy under the Act in the United States.)
The courts of states that do not have legislation on state immunity have to rely on customary
international law as deduced by examining the practice (mainly legislation and judgments) of other
states.
17
They will now also have the UN Convention to consider.
Only a short and very general overview can be given. Advice on an actual situation will always
require a close and detailed examination of the facts and the applicable law of the state of the forum
(court).
Which entities enjoy immunity?
What is a state has already been discussed.
18
Article 2(1)(b) of the UN Convention defines a state to
include:
‘[I]ts various organs of government.’ That is to say, all branches or emanations of government
through which the government acts, including agencies and diplomatic missions. Proceedings
against a government are effectively against the state. The legislature and judicial organs are
also part of the state, although they are unlikely to have proceedings brought against them as
such in a foreign court.
1.
‘[C]onstituent units of a federal state or political subdivisions of the state, which are entitled to
perform acts in the exercise of the sovereign authority, and are acting in that capacity.’
Entitlement depends on the constitution of the state.
2.
‘[A]gencies or instrumentalities of the state or other entities, to the extent that they are entitled
to perform and are actually performing acts in exercise of sovereign authority of the state.’ This
depends on the constitution and laws of the state. The reference to ‘other entities’ would not
normally include a corporation established by the state which has an independent legal
personality, even if its purpose is
16. For the Act as amended, see
www.law.nyu.edu/kingsburyb/fall01/intl_law/basicdocs/foreign%20sovereign%20imm%20act.htm.
17. A comparative study of European states’ laws on state immunity, done for the Council of
Europe, should be published by the British Institute of International and Comparative Law in 2005.
18. See p. 16 above. See p. 410 below on the attribution of conduct to a state. A state may in certain
cases be responsible for acts of private persons who themselves may not enjoy state immunity in
3.
respect of the acts.