Immunities from National Jurisdiction

(Diplomatic Law and State Immunity)

International Law- II
 Immunities and
Privileges in International Law
• The general principle is that a State has full and
complete jurisdiction within its own territory
• Local courts exercise such jurisdiction
• However, there are some exceptions to this as will be
examined in this Chapter

• Immunity means (exempt) from the jurisdiction

(adjudication and enforcement) of other States

• There are three kinds of immunity

1. State immunity
2. Diplomatic and consular immunity
appointed/accredited to other States. They have also
some privileges.
3.Immunity of international organizations
 State Immunity
• Example: When State A makes a contract with a company registered
in State B in order to buy cement, or the property of State A is the
cause of a dispute with a national of State B, whether State A is
subject to the jurisdiction of the courts of State B.
• Even if the State A is subject to the jurisdiction of the national courts
of State B, how the court order will be enforced against it?
• These are the reasons for the concept of immunity from national
jurisdiction
• State immunity derives from IL and denial of it gives rise to
international responsibility before an international court.
 Non-justiciability and immunity

Non-justiciability Immunity
• If the issue is concerned with • Normally, national courts
the validity of certain would have had jurisdiction
Constitution or legislative act over the matter, but is not
of the State (e.g. German permitted to exercise it,
Const. Before Turkish court) because one of the parties
• The matter over which national is a foreign State or
law has nothing to do (e.g. The government
validity of • Identity of litigant ratio
treaties/interpretation) personae is important
• Any action of governmental
nature taken by foreign State
in its own territory
• Ratio materiae is important
(substance of the dispute)
 Justifications of State Immunity

• Theories trying to explain the basis of State immunity:

1- equality of States; Since the States are independent and
legally equal, no State may exercise jurisdiction over another
State without its consent.
2- voluntarily waiving jurisdiction
3-the policy of foreign State; a national court should not consider
the merits of a dispute involving a foreign State where
questions of policy are in issue
4- enforcement of judgement is difficult
5- international comity (karşılıklı nezaket)
 State Immunity
• The doctrine of absolute State immunity was once valid under
customary international law, that covered all areas of State activity
and recognized only very narrow exceptions. E.g. In cement
example, when the State A refused to pay the purchase price, the
company would have been unable to sue in the national courts of
State B. (protection of its own nationals’ interests in danger, State
responsibility to be enforced indirectly, later on seen)
• The prevailing trend nowadays is to adopt a doctrine of
“restrictive immunity” rather than “absolute immunity”.
Restrictive immunity means:
– To grant immunity to foreign States only in respect
of their governmental acts. (acts of sovereign nature,
jure imperii)
– Not to grant immunity in respect of their commercial
acts. (jure gestionis)
 acts of sovereign nature, jure imperii and acts of
commercial nature, jure gestionis)
States can deploy one of the criterion or more. Up to
States.
jure imperii- jure gestionis
• Purpose of the act; e.g. If
the cement is for the • Purpose of the act; if the
construction of an army cement is for the new office
barrack block
• Nature of the act; the act • Nature of the act; supply of
whether in its nature an goods always commercial
essentially commercial or
not. E.g. The supply of good
always commercial
• Subject matter; e.g.
Legislative acts such as
nationalisation
 The Act of State Doctrine
• The acts of a State which are carried out within its own
territory, cannot be challenged in the courts of another
states.
• All servants and agents of a foreign State are immune from
legal proceedings in respect of acts done by them on behalf
of the foreign state
• Immunity is available even if the act is in violation of a
fundamental rule of IL, as in the case of international
crimes providing universal jurisdiction
• E.g. Case Concerning the Arrest Warrant of 11 April 2000
(Congo v. Belgium) (2002, ICJ). The Court decided that
State immunity was available when the individual
committed international crimes. No way to accept it
HR,ICL rules concerned. (Libya, today. Kaddafi referred to
the ICC. UN res. 27 Feb. 2011).
• Local courts cannot exercise jurisdiction, but other
international courts can do. In this sense, Not
 Diplomatic Immunity
• The rules of diplomatic immunity are
essential for the maintenance of relations
between states and are accepted
throughout the world by nations

• Most of the issues of diplomatic immunity is

contained in the 1961 Vienna Convention on
Diplomatic Relations.
 Establishing a Diplomatic
Mission
• Diplomatic relations are established by
mutual consent between two States
concerned.
• The receiving State’s (host State) consent is
necessary for the selection of the head of
the mission (but not for the selection of sub
ordinaries).
• Article 11 of the Vienna Convention
provides that receiving State may require
that the size of a mission be kept within
limits considered by it to be reasonable and
normal.
 The Functions of a Diplomatic
Mission
• To represent the sending State in the receiving
State,
• To protect in the receiving State the interests of the
sending State and of its nationals, within the limits
permitted by international law,
• To negotiate with the government of the receiving
State,
• To ascertain by all lawful means conditions and
developments in the receiving State, and to report
thereon to the Government of the sending State,
• To promote friendly relations between sending State
and the receiving State, and developing their
economic, cultural and scientific relations.
 Diplomatic Immunity
• Immunities and privileges are needed for
the efficient performance of diplomatic
functions.
• They are also given because diplomats are
representatives of States.
• Modern view is to treat immunities as
having a “functional basis”: as being
necessary to ensure the efficient
performance of the functions of diplomatic
missions.
Immunity from the Jurisdiction
of Courts
• A diplomatic agent shall enjoy full immunity from
the criminal jurisdiction of the receiving State. He or
she will also enjoy immunity from its civil and
administrative jurisdiction, except in the case of:
– A real action relating a private immovable property
situated in the territory of the receiving State, unless he
holds it on behalf of the sending State for the purposes of
the mission,
– An action relating to succession in which the diplomatic
agent is involved… as a private person…,
– An action relating to any professional or commercial
activity exercised by the diplomatic agent in the receiving
State outside his official functions.
• The same immunity is enjoyed by a diplomat’s
family, if they are not nationals of the receiving
State.
 Immunity from the Jurisdiction of
Courts
• The existence of immunity does not mean the
people injured by diplomats are wholly without
remedy:
– He will be willing to settle private claims against
him before they come to the attention of his
superiors.
– The injured individual or the government of the
receiving State can ask the ambassador to waive
his subordinate’s immunity.
– The injured party can also commence legal
proceedings against the diplomat in the sending
State.
– In extreme cases of abuse a diplomat can be
declared persona non grata.
 Diplomatic Immunity
• Diplomatic immunity does not cover all the
staff of a diplomatic mission:
– Diplomatic agents
– Administrative and technical staff (e.g. Archivists, radio
technicians)
– Service staff (e.g. Drivers, receptionists)
• The last two categories have complete
immunity from criminal jurisdiction, but their
immunity from civil and administrative
jurisdiction is limited to their official acts.
• The same is true of diplomatic agents who
are nationals or permanent residents of the
receiving State.
 Other Privileges and Immunities
• The premises of a diplomatic mission and the
private residence of a diplomat are inviolable;
agents of the receiving State are not allowed to
enter such places.
• Archives, documents and other property belonging to
a diplomatic mission or diplomat are inviolable.
• The mission must have unimpeded communication
with the sending State by all appropriate means
including diplomatic couriers and messages in
code or cipher.
• The mission’s official correspondence is inviolable
and the diplomatic bag must not be opened or
detained.
Other Privileges and Immunities
• The premises of the mission are exempt
from all taxes,

• Diplomats are also exempt from all taxes,

• The receiving State must allow the

importation, free of customs duties, of
articles (eşya) for the official use of the
mission and of articles for the personal use
of a diplomat or his family.
 Consular Immunity
• Consuls, like diplomats, represent their State in
another State, but, unlike diplomats, they are not
concerned with political relations between the two
States.
• They perform a wide variety of non-political
functions:
– Issuing passports or visas,
– Looking after shipping and commercial interests
of their states,
– Functioning as a notary,
– Giving other public services to their nationals
(military recruitment, educational registrations,
etc.)
 Consular Immunity
• Consular relations are governed by 1963
Vienna Convention on Consular Relations.
• People who act simultaneously as diplomats
and as consuls have diplomatic immunity.
• Consuls who do not act as diplomats have
many of the same privileges and immunities as
diplomats, but they are immune from the civil or
criminal jurisdiction of the receiving State’s
courts only in respect of official acts.
• They may import articles for their private use,
free of duty, only at the time of their first
appointment.
 Immunities of International
Organizations
• It is uncertain to what extend international
organizations enjoy immunities under customary
law, in practice the matter is usually regulated by
treaties.
• 1946 Convention on the Privileges and Immunities of
the United Nations gave UN complete immunity
from all legal process. Its premises, assets,
archives and documents are inviolable.
• UN staff are exempt from income tax on their
salaries.
• The Secretary General and the assistant
Secretaries-General have diplomatic immunity.
• Other staff members have limited immunities, such
as immunity from legal process in respect of their
official acts.