Immunity

Question 1

What is the doctrine of state immunity?

Answer 1

There is an intl legal duty to ensure that a foreign sovereign state is accorded immunity in an appropriate case(Jurisdictional Immunities)

Question 2

What is the most likely rationale of State immunity?

Answer 2

It is that States are legal equals under intl law, so it is legally impossible for the courts of one sovereign power to exercise authority over another sovereign power. It was favoured in Lampen-Wolfe (Lord Cooke) and Jones (Lord Bingham); also by the ICJ in the Jurisdictional Immunities Case.

Question 3

Differentiate immunity from non-justiciability.

Answer 3

Non-Justiciability – domestic court has no competence to assert jurisdiction; based on the substance of the dispute

Immunity - the court has jurisdiction, but declines to exercise it; based on the personality of the litigant.

Question 4

Differentiate immunity rationes personae from immunity rationes materiae.

Answer 4

• Immunity ratione personae – immunity of the person
• Immunity ratione materiae – immunity relating to acts of the State

The crucial difference is the temporal element - Since material immunity attaches to the act and not the person the actor remains immune after he leaves office in respect of those acts; immunity persists so long as the State lasts.
o Personal immunity is absolute - you are inviolable in respect of anything you do – but temporary, lasting only so long as the office lasts.

Question 5

What is the basis of immunity rationes materiae?

Answer 5

Khurts Bat clarifies that the basis of immunity ratione materiae is that the State is the proper defendant in those proceedings, since they relate to an act of the State; the forum state simultaneously strikes out the claim as being against the wrong defendant and declines jurisdiction against the proper defendant on the basis of State immunity.

Question 6

Does the “act of State doctrine” mean that a UK court cannot rule on the legal validity of the acts of foreign States?

Answer 6

The “act of state” doctrine in the UK provides that any actions of a govt nature taken by a foreign sovereign state in its own territory are non-justiciable (Jones). However, it does not prevent the court from denying give legal validity to the sovereign acts of a foreign state which are clearly in violation of intl law (e.g. Kuwait Airways)

Question 7

Does the “act of State doctrine” mean that a UK court are bound to assume the legal validity of the acts of foreign States?

Answer 7

The “act of state” doctrine in the UK provides that any actions of a govt nature taken by a foreign sovereign state in its own territory are non-justiciable (Jones). However, it does not prevent the court from denying give legal validity to the sovereign acts of a foreign state which are clearly in violation of intl law (e.g. Kuwait Airways)

Question 8

When will states enjoy State immunity in modern intl law?

Answer 8

The modern doctrine of restrictive state immunity (endorsed in Arts 10-12 of 2004 UN Convention, and in the UK in I Congreso) gives a state immunity only in respect of acts jure imperii (acts done by the State as a sovereign State), replacing the old, commercially impractical practice of granting absolute state immunity

Question 9

What is the true ratio of Pinochet?

Answer 9

As explained in Jones - where the UK’s liabilities under the Torture Convention were engaged, granting immunity ratione materiae in respect of alleged acts of torture was irreconcilable w/ the Convention

Question 10

What is the UK test for acts jure imperii?

Answer 10

The British test is a contextual one (I Congreso del Partido) - are both the initial transaction and the unlawful act acts by virtue of govt authority or acts of private law, taking into account all the circumstances?

Question 11

What is the UK test for acts jure imperii?

Answer 11

The British test is a CONTEXTUAL one (I Congreso del Partido) - are both the initial transaction and the unlawful act acts by virtue of govt authority or acts of private law, taking into account all the circumstances?

Question 12

Jurisdictional Immunities (State immunity) - ratio + reasoning

Answer 12

State immunity applies even if the alleged offence is one that might be regarded as a crime under intl law for which an individual may be tried/involves breach of a rule of jus cogens.

Reasoning - The ICJ observed that the rule on immunity was procedural and thus did not conflict w/ jus cogens which is a substantive doctrine (immunity does not equate to impunity).

Question 13

State A wishes to claim immunity for alleged acts of espionage committed by its Foreign Minister. What must it do, and what are the implications?

Answer 13

Djibouti v France – any State that wishes to claim immunity in respect of one of its organs must notify the forum State, and in doing so is assuming responsibility for any internationally wrongful act committed by that State organ

Question 14

V wishes to bring a claim in damages against Niger in a UK court for her enslavement by the Niger government. She is denied a claim on the grounds of State immunity and wishes to argue that denying her claim for breach of a jus cogens norm is incompatible w/ her Art.6 rights. Advise her.

Answer 14

Al Adsani provides clear ECtHR authority that Art.6 is engaged by a plea of State immunity; thus courts must ask whether allowing a plea of immunity is a legitimate and proportionate response justifying infringement of Art.6. The court found that measures taken by [states] which reflect generally recognized rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court as embodied in Article 6(1).

Jones established that any interference with Art.6 was still proportionate where immunity was pleaded in respect of a rule of jus cogens or a crime for which intl law provided universal jurisdiction

Question 15

Dissenting opinions of Judges Yusuf and Cancado in Jurisdictional Immunities

Answer 15

Yusuf – the law on State immunity should be brought into line w/ the growing normative weight attached by the intl community to the protection of HR by effective remedies and could have a deterrent effect on HR violations
Cancado – “we cannot remain over-attentive to the apparent sensitivities of States, to the point of conniving at denial of justice, by unduly ascribing to State immunities an absolute value.’

Question 16

Briefly describe the structure of the SIA 1978.

Answer 16

S.1 lays down a general principle of immunity, subject to an exhaustive set of exceptions in S.2-11, so if these do not apply the state’s immunity is assured under S.1, as in Jones.

Question 17

Lampen Wolfe (S.3(a) SIA)

Answer 17

The dispute must arise out of the contract for supply of goods and services; NOT sufficient that the contract forms part of the context

Question 18

Lampen Wolfe (S.3(3)(a) SIA)

Answer 18

The dispute must arise out of the contract for supply of goods and services; NOT sufficient that the contract forms part of the context

Question 19

What is the proper test under S.3(3)(c) for transactions not entered to in the exercise of sovereign authority?

Answer 19

Kuwait Airways – the majority thought the initial seizure of aircraft was a sovereign act, being ordered by the Iraqi govt, but subsequent use of aircraft was non-sovereign and did not attract immunity (NOTE minority thought it was not possible to dissect D’s actions like this)

CoA in Gamal-Eldin recently applied the two-stage test (I Congreso) to S.3(3) (c)– “no one factor is determinative… the nature of the activity, the identity of the actors and the place where it occurs are relevant”.

Question 20

Comment briefly on the effect of S.13.

Answer 20

The effect of S.13 is that an individual who successfully sues a State in court will be left with a Pyrrhic victory, since the State cannot be compelled to satisfy the judgment unless the order involves commercial property, and even then no injunction can be given to stop it withdrawing assets from the territory to frustrate the judgment. Moreover, if the property is that of a central bank, no judgment can be enforced against it.

Question 21

Pinochet (No.3) - extent of head-of-state immunity under S.14

Answer 21

An ex-head of state enjoys continuing immunity in respect of acts done while in office ONLY if those acts were part of his official functions (i.e. where rationes materiae applies)
Thus in respect of private acts done in office, head of state immunity is transient only (in respect of these acts only rationes personae can apply).

Question 22

Arrest Warrant (immunity rationes personae)

Answer 22

Immunity rationes personae can be claimed for a serving foreign minister even if he is accused of crimes against humanity; only 4 circumstances recognised in which he might be prosecuted

(i) Proceedings before his national courts
(ii) State waives his immunity
(iii) Prosecution by intl courts
(iv) Proceedings instituted before a foreign court once he leaves office, if in respect of private acts

Question 23

What is the proper test under S.3(3)(c) for transactions not entered to in the exercise of sovereign authority?

Answer 23

Kuwait Airways – the majority thought the initial seizure of aircraft was a sovereign act, being ordered by the Iraqi govt, but subsequent use of aircraft was non-sovereign and did not attract immunity (NOTE minority thought it was not possible to dissect D’s actions like this)

CoA in Gamal-Eldin recently applied the two-stage test (I Congreso) to S.3(3) (c)– “no one factor is determinative… the nature of the activity, the identity of the actors and the place where it occurs are relevant”.

Question 24

When will a “separate entity” be entitled to claim State immunity under the SIA?

Answer 24

When
S.14(1)(a) - the proceedings relate to anything done by it in the exercise of sovereign authority; and
S.14(1)(b) - the circumstances are such that a State would have been so immune (i.e. none of the exceptions in S.2-11 apply).

Question 25

Kuwait Airways (separate entities) + Dixon’s criticism of decision

Answer 25

The majority approach (Lord Goff) was to apply the S.3 test on commercial transactions to discover whether the act was in the exercise of sovereign authority as per S.14(2)(a).

Dixon observes that this misses the point; applying S.3 assumes the body is already entitled to claim immunity since S.3 only addresses what the entity has done and not its status when it did it. The minority approach is to be preferred – asking first whether the entity was acting on behalf of the state (S.14(2)) and then whether its activities were commercial under S.3 – and seems to have been adopted in Re Rafidian Bank

Question 26

Wilhelm Finance

Answer 26

In establishing whether the body was in fact a separate entity under S.14(2)(a) the emphasis was on the formal position of the defendant in Argentinian law, i.e. whether in Argentinean law it could sue or be sued in its own right

Question 27

What is the basis of diplomatic immunity under the VCDR?

Answer 27

The Preamble states that immunity is only for the purpose of enabling the diplomat to carry out his designated function

Question 28

Tehran Hostages

Answer 28

A large part of the VCDR represents customary law

Question 29

Eritrea/Ethiopia

Answer 29

The Claims Commission did not accept that the Parties could derogate from their fundamental obligations under the Vienna Convention on Diplomatic Relations because of the exigencies of war, underlining the importance of these rules

Question 30

What is the true ratio of Pinochet?

Answer 30

As explained in Jones - where the UK’s liabilities under the Torture Convention were engaged, granting immunity ratione materiae in respect of alleged acts of torture was irreconcilable w/ the Convention. It is NOT that acts of torture cannot be acts of the State (in fact according to the Torture Convention acts of torture are by definition acts of the State).