Immunities Flashcards
The function of the law of immunities
The law on immunities allows the State, State representatives and State Roberts to have immunity from actions brought in foreign courts
Relationship between jurisdiction and immunit
Questions about immunity will only arise after the jurisdiction question has been answered
Justifications of the law on immunities (3)
- Necessity of international relations to take place
- Sovereign equality
- Historical reasons
Distinction between state immunity and personal immunity
State immunity applies to sates and the organs of state, whereas personal immunity emerges from the immunity of diplomats, ambassadors and other people who work in embassies
Traditional rule of state immunity
Absolute immunity
Why was there a movement away from absolute immunity?
Mostly because of commercial convenience - Porto Alexandre
Restrictive immunity
Immunity will not always be an absolute bar on courts having jurisdiction
When are immunities lifted?
When the acts in question are of private nature
Actus jure imperii
Public acts
Actus jure gestionis
Private acts for which immunity is lifted
Does immunity mean impunity?
No, immunity effectively means not that court
Germany v Italy 2012
F: Case concerned serious HR abuses made by Germany in Italy during WW2, in the 2000s the families of those who had suffered abuse by German soldiers brought cases against Germany in Italian and Greek domestic courts, immunity was pleaded in domestic courts, but plea not accepted because jus cogens, then went to ICJ
I: Was the domestic decision wrong?
H: Yes, the correct court for dealing with such a case is not the domestic court, but Germany still responsible - you cannot plead immunity from international courts
Ratione personae
Affords protection to the individual in general
Ratione materiae
Affords immunity to persons for certain acts undertaken while working in their capacity as e.g. an ambassador
Jones v Kingdom of Saudi Arabia 2006
HoL determined that a high ranking Saudi police officer could be afforded immunity, this blurs the distinction between state and personal immunity
Sources of English law on immunity
- The common law
- Customary international law
- The State Immunity Act 1978
- The Vienna Convention on Diplomatic Relations 1961
The Cristina 1938
A state-owned ship could not be made the subject o proceedings in rem
How does common law relate to the SIA?
- Separate entities
- Visiting armed forces
- Interpreting the SIA
Trendtex Trading Corp Ltd v Central Bank of Nigeria 1977
F: Nigerian gov bought loads of cement that could cover the whole of Nigeria, people wanted payments for the goods they had supplied, the CBN wanted to evade the jurisdiction of English courts because of immunity
I: Did the CBN have immunity?
H: Nigeria did not create the bank for it to have a fully governmental status, set up as a training emanation which was a commercial entity, then restrictive immunity rule applied - because of commercial, it could be lifted
I Congreso del Partido 1981
F: A Cuban-state owned ship which was supposed to deliver a shipment of sugar to a Chilean company, on the way to deliver, the Chile gov changed, the new military dictatorship unfriendly to Cuba, so the ship delivered the sugar to Vietnam instead, case in English courts
I: Did Cuban government have immunity in English courts?
H: Restrictive immunity rule affirmed, then two tests devised to check whether the act was commercial or not, immunity lifted because of the nature test
The purpose test (Il Congreso)
What’s the purpose - in Il Congreso, the relevant action was to not deliver the shipment - political; test automatically rejected
The nature test (Il Congreso)
Concerns the nature of the relevant act, since any owner of a ship could choose to not deliver goods, the action was commercial, immunity lifted
Litterell v USA 1995
F: An American soldier brought action for medical negligence suffered on American base in the UK, the US gov claimed immunity under SIA which was rejected by applying s16(2), common law had to be used
I: Was there immunity?
H: Yes, Il Congreso applied, “The standard of medical treatment which the United States affords its own servicemen is a matter within its sovereign authority”
Holland v Lampen-Wolfe 2000
F: Holland a professor on US bases in the UK, brought claim for defamation in the UK courts
I: Was there immunity?
H: Yes, confirmed Litterell, what happened on the base was a public act
Kuwait Airlines Corporation v Iraqi Airways Company 1995
F: KAC brought an action against IAC who had taken some planes of KAC and used it to invade Kuwait and also for commercial purposes
I: Was there immunity?
H: Yes, the seizure was public, but since also used for commercial purposes, so immunity lifted
Immunity of heads of state
SIA while in office, after they leave office they have common law immunity ratione materiae for acts they did while in office
Immunity of iplomatic agents
VCDR
Al-Juffali v SoS for the FCO 2016
F: Al-Juffali sued by his wife, he was a permanent representative of St Lucia for which he did not discharge any public functions, also a permanent resident of the UK, he claimed he had immunity
I: Did he?
H: Since Foreign Office hadn’t objected to his appointment no one could deny that, but because he had permanent residence , they can only have immunity while exercising public functions under VCDR
Al Adsani 2001
F: A British national was tortured by a Kuwaiti prince, he was seeking damages from Kuwaiti government, English court held that immune, went up to ECHR
I: Was there a breach of human rights?
H: No, no UK’s act or ommission contributed to what happened to him, immunity rules limiting access to the court compatible with the Convention as they facilitate compliance with other international obligations
Jones v Saudi Arabia 2006
F: Jones’s friends claimed to have suffered systematic torture while working in Saudi Arabia, claims brought against Saudi Arabia and Kernal Aziz who was an organ of a foreign state
I: Was there immunity?
H: Yes, Saudi Arabia because a country, Kernal Aziz followed Al Adsani
Benkharbouche v Embassy of Republic of Sudan 2015
F: Case concerning some foreign nationals employed in embassies in the UK who weren’t paid minimum wage which was claimed to be discriminatory under EU legislation
H: Various parts of the SIA incompatible with various bits of EU law
Khurts Bat v Investigating Judge of the German Federal Court 2011
F: Khurts Bat, an organ of a foreign state, accused of committing crimes of torture against Germans, claimed immunity as a member of a special mission
I: Did he have an immunity?
H: No, the court asked the Foreign Office if he was a member of a special mission and Foreign Office said that he wasn’t
R (Hamed) v SoS of the FCO 2016
F: A number of acts of torture committed in Egypt by military coup, a representative of the coup afforded immunity as a member of the special mission to visit the UK, his presence known to the British police but they didn’t arrest him as he had immunity
I: Did he actually?
H: Since Foreign Office accepted him, yes, he did
