Bernas Public International Law – IMMUNITY FROM JURISDICTION Part 1

CHAPTER 10: IMMUNITY FROM JURISDICTION Part 1

* GR: Jurisdiction of a state within its territory is complete and absolute.
* Exceptions:

1.) Sovereign immunity
2.) Diplomatic/consular immunity

A. Immunity of Head of State

– Applies to both the Head of State and to the State itself

Mighell v. Sultan of Johore

The Sultan of Johore was sued for bread of a promise to marry in a British court. Despite the fact that it was a private suit, it was dismissed upon verification that the Sultan was a sitting foreign sovereign.

Pinochet Case: Regina v. Bartle and the Commissioner of Police (House of
Lords, 1999)

General Augusto Pinochet led a military coup that overthrew the Chilean President Allende. According to a national truth and reconciliation mission, at least 3,196 people were killed or forcibly disappeared during his dictatorship. British authorities detained Pinochet on an arrest warrant issued by Spanish Magistrate Baltasar Garzon under the charges of genocide, terrorism, and torture.

In affirming that Pinochet did not enjoy immunity from prosecution as a former head of state and could thus be extradited, the House of Lords explained:

a.) Senator Pinochet as a former head of state enjoys immunity rationae materiae in relation to acts done by him in relation to his official function as such.

b.) However, organization of state torture is not an act committed in his official function. The commission of a crime which is an international crime against humanity and jus cogens cannot be a state function. The principle of individual responsibility for international criminal conduct has become an accepted part of international law.

c.) The notion of continued immunity for ex-heads of state is inconsistent with the provisions of the Torture Convention which provides that the international crime of torture can only be committed by an official or someone in official capacity. Since the immunity applies also to officials who carried out the functions of the state, if torture is treated as official business sufficient to justify the immunity, then no party would be held liable and the structure of universal jurisdiction over torture committed by officials is rendered abortive.

d.) Thus, Senator Pinochet was not acting in any capacity which gives rise to immunity rationae materiae since authorized and organized torture are contrary to international law.

B. State Immunity

– The State may not be sued without its consent.
– Based on the principle of equality and independence of states: par in parem non habet imperium.
– With the gradual expansion of state involvement in commerce, the principle of state immunity has evolved to one of restrictive state immunity: only acts jure imperii (governmental acts) and not acts jure gestionis (trading and commercial acts) are immune.

The Schooner Exchange v. MacFaddon

States enjoy absolute immunity. Despite the absolute territorial jurisdiction of states, one sovereign, being bound to not degrade the dignity of his nation by placing himself within the jurisdiction of another, can be supposed to enter into foreign territory in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication and will be extended to him.

Dralle v. Republic of Czechoslovakia

It can no longer be said that by international law, acta gestionis are exempt municipal jurisdiction. The classic doctrine of immunity arose at a time when there was no justification for any distinction between private transactions and acts of sovereignty. Today, States engage in commercial activities and enter into competition with their own nationals as well as foreigners.

USA v. Hon. V.M. Ruiz (Philippines)

The traditional rule of State immunity is a necessary consequence of the principles of independence and equality of States. However, the rules of International Law are constantly developing and evolving. Because state activities have multiplied, it has become necessary to distinguish them between sovereign and governmental acts, and private, commercial and proprietary acts.

The result is that State immunity now extends only to acts jure imperii. A state may be said to have descended to the level of an individual and can thus be deemed to have tacitly given its consent to be sued only when it enters into business contracts. But this does not apply where the contract relates to the exercise of its sovereign functions.

In this case, repairs of base facilities are an integral part of the naval base devoted to the defense of both the US and the Philippines, which is a function of the government not utilized nor dedicated to commercial or business purposes.