1 Vienna Convention on Diplomatic Relations 1961, Art 22; Denza, Diplomatic Law (3rd edn, 2008), 268–9 (on diplomats), 151–3 (on mission premises). The prohibition would seem to extend even to service by post.
2 For particulars of English law, see Ch 7 on English law, procedure. See, generally, Collins (gen ed), Dicey, Morris and Collins on the Conflict of Laws (16th edn, 2012), Chs 5, 10, and 12 (hereafter Dicey); Collier, Conflict of Laws (3rd edn, 2001), 72–83; Fawcett (ed), Declining Jurisdiction in Private International Law (1995) General Report, 1–70.
3 Vienna Convention on Diplomatic Relations 1961, Art 22; Denza, Diplomatic Law (3rd edn, 2008), 268–9 (on diplomats), 151–3 (on mission premises). The prohibition would seem to extend even to service by post.
4 For particulars of English law, see Ch 7 on English law, procedure. See, generally, Dicey; Collier, Conflict of Laws, 72–83; Fawcett (ed), Declining Jurisdiction in Private International Law 1–70.
5 Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission of Human Rights, Advisory Opinion of 29 April 1999, ICJ Reports 1999, p 62, para 67 (the Cumaraswamy case). See Hazel Fox, ‘Commentary: The Advisory Opinion on the Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission of Human Rights: Who Has the Last Word on Judicial Independence?’ (1999) 12 Leiden JIL 889.
6 See the Index for specific references to this judgment throughout the book. The preliminary nature of the plea of immunity was indeed central to the Court’s reasoning as to why the availability of State immunity was not dependent upon the gravity of the alleged unlawful act: ‘If immunity were to be dependent upon the State actually having committed a serious violation of international human rights law or the law of armed conflict, then it would become necessary for the national court to hold an enquiry into the merits in order to determine whether it had jurisdiction. If, on the other hand, the mere allegation that the State had committed such wrongful acts were to be sufficient to deprive the State of its entitlement to immunity, immunity could, in effect be negated simply by skilful construction of the claim’ (para 82).
7 Dellapenna Suing Foreign Governments and their Corporations (2nd edn, 2002) 644, (1994) 88 AJIL 528, 644. Cf Yugoslavia v Croatia [2000] 1 L Pr 59, JDI (2000) 1936; and Republic of Estonia, 30 June 1993, 113 ILR 478 where the French Cour de Cassation held that, in the absence of an international treaty on the matter, the court was not required of its own motion to ascertain whether the State was entitled to immunity; immunity was not absolute and had to be claimed by the purported possessor.
8 In a claim made by an alleged wife of the King of Saudi Arabia for maintenance, the English Court of Appeal held the identity of the sovereign was relevant to any public debate of the issues raised by a plea of immunity and gave leave to the applicant for a public hearing as to the applicability of a plea of State immunity to the applicant’s claim for maintenance, though it might well have retained such restrictions with regard to the subsequent investigation of the entitlement to and extent of such maintenance. Harb v King Fahd Bin Abdul Aziz [2005] 2 FLR 1108 at para 40. By reason of the King’s death further proceedings in the English court were discontinued; thus the immunity point was not finally determined. Aziz v Aziz & Sultan of Brunei [2007] EWCA Civ 712 (11 July 2007) per Lawrence Collins, paras 93, 137, Sedley LJ paras 131–2. Cf Anonymous v Anonymous, NYS 2d 777 (AD1 Dept 1992) where reporting restrictions were imposed in divorce proceedings of a head of state; see also Global Torch Management v Apex Global Management Ltd [2013] EWCA Civ, Paras 13–15.
9 Finke, ‘Sovereign Immunity: Rule, Comity or Something Else?’ (2010) 21(4) EJIL 853 (State immunity is a legally binding principle not a rule of international law, so States may differ in their rules relating to State immunity so long as they observe the boundaries set by other principles of international law).
10 Al-Adsani v UK (2002) 34 EHRR 111, ECHR, para 56; 107 ILR 536.
11 Jones v Minister of Interior of Kingdom of Saudi Arabia & Ors [2006] UKHL 26, [2006] 2 WLR 1424.
12 Gaja, Max Planck Encyclopedia of Public International Law; Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (2006).
13 Jennings and Watts, Oppenheim’s International Law (9th edn, 1992), 37 and fn 2.
14 Yearbook of the International Law Commission (1980), vol II(2), p 147, para 26. But note in its 1991 Draft Articles on the Jurisdictional Immunities of States and their Property the ILC states: ‘There is common agreement that for acts performed in the exercise of the “prérogatives de la puissance publique” or “sovereign authority of the State” there is undisputed immunity. Beyond or around the hard core of immunity, there appears to be a grey zone in which opinions and existing case law and indeed legislation still vary.’ See Ch 12.
15 Jurisdictional Immunities, para 56; see also para 106. As regards the immunity of State officials the ILC, in its report of the 60th Session, similarly agreed with the Special Rapporteur Kolodkin that ‘the immunity of State officials from foreign criminal jurisdiction was based on international law, particularly customary international law, and not merely on international comity’ UN Doc A/63/10 (2008) para 281. The 9th edition of Oppenheim’s International Law, whilst noting that grant of immunity from suit may be a denial of a legal remedy in respect of what may be a valid claim, confirms this position: ‘State practice is sufficiently established and generally consistent to allow the conclusion that, whatever the doctrinal basis may be, customary international law admits the general rule, to which there are important exceptions that foreign states cannot be sued’, Jennings and Watts, Oppenheim’s International Law I (9th edn, 1992), 342–3.
16 Republic of Austria v Altmann, US Supreme Ct 327 F 3d 1246 (2004), (2004) 43 ILM 1421, citing Dole Food Co v Patrickson, 538 US 468, 479 (2003) (emphasis added).
17 Article 3 of the Chinese Law of Judicial Immunity of 2005 stipulates that for countries that do not provide property of the central bank of the PRC and the financial administration organs of the Special Administration Regions of Hong Kong and Macao with immunity, or provide immunity at a level below this Law, the PRC will deal in line with the principle of reciprocity. Lijiang Zhu, ‘State Immunity from Measures of Constraint for the Property of Foreign Central Banks: The Chinese Perspective’ (2007) Chinese J Int Law 67 at 80 comments that the PRC’s attachment to the principle of reciprocity is readily understandable since ‘equality of state sovereignty does not come easily. It took China more than a hundred years’ struggle to completely abolish the “unequal treaties” imposed by western powers’.
18 Article 61 of the 1961 Fundamentals of Civil Procedure of the USSR provided: ‘When a foreign State does not accord to the Soviet State its representatives or its property the same judicial immunities which, in accordance with the present Article, is accorded to foreign States, their representatives and their property in the USSR … the USSR … may impose retaliatory measures in regard of that State its representatives and that property in the USSR’. Arguably when a foreign State does not accord to the Soviet State the same judicial immunities accorded to foreign States, the USSR may impose retaliatory measures.
19 Lauterpacht, ‘The Problem of Jurisdictional Immunities of Foreign States’ (1952) 28 BYIL 220 at 227. A State’s protest is made by refusal to appear.
20 Jurisdictional Immunities, para 35. See also the protest by the People’s Republic of China (PRC) to the UK government at the enactment legislation applicable to Hong Kong declaring State immunity to be no bar to proceedings brought in Hong Kong regarding aircraft located there which the Chinese Communist government claimed as its property and to the US government during the proceedings brought against the PRC by bondholders of Chinese railway stock (1951) 1 ICLQ 159–77, (1953) 3 ICLQ 136–43; Huang Jin and Ma Jingsheng, ‘The Immunities of States and their Property: The Practice of the People’s Republic of China’ (1988) 1 Hague YBIL 163 at 168–9 and also referring to the Chinese government’s protest in the ‘Yonghao’ Oil tanker case at 169–70. Jin and Jingsheng, ‘The Immunities of States and their Property’ 168–9, 176–80; Civil Air Transport Inc v Central Air Transport Corpn [1953] AC 70; Jackson v People’s Republic of China, 550 F Supp 869 (ND Ala 1982), dismissed on appeal on the ground that the FSIA was not retroactive: 794 F 2d 1490 (11th Cir 1986), 22 (1983) ILM 76. See also a third State’s representations in the Socobelge case, in Ch 16.
21 Alcom Ltd v Republic of Colombia and Others [1984] AC 580, [1983] 3 WLR 906, [1984] 1 All ER 1.
22 Mrs E Denza, Legal Counsellor, FCO to ML Saunders, Law Officers’ Department, 11 November 1983. Attachment of an aircraft of the visiting Yemen head of State also provoked protest.
23 Cassese, ‘When May Senior State Officials be Tried for International Crimes? Some Comments on Congo v. Belgium Case’ (2002) 4 EJIL 853 at 859.
24 US Supreme Court, Sosa v Alvarez-Machain, brief of amicus curiae of the European Commission in support of neither party, 23 January 2004, pp 5, 14, 26–7.
25 At para 48. But see the Canadian Justice for Victims of Terrorism Act 2012 which amends the Canadian SIA to remove the immunity of a foreign State that has been listed by the Government in Council as a ‘sponsor of terrorism’ and creates a civil cause of action in Canada for damage or loss related to a terrorist act if the plaintiff is a Canadian citizen or permanent resident or there is a ‘real and substantial connection’ to Canada.
26 See Arts 22 and 49 of ILC Articles on State Responsibility.
27 CR 2011/18, Palchetti (47–50) and Dupuy (50–6).
28 Tomuschat, CR 2011/21, para 27 (calling this ‘the very strange new theory of countermeasures’).
29 In any event, it seems that Italy did not fulfil several of the requirements relating to resort to countermeasures set out in Art 52 of the ILC Articles, including notifying Germany of its decision to take countermeasures.
30 Jurisdictional Immunities, para 101. Tomuschat, CR 2011/21, paras 26–7 (also referring to Italy’s waiver of Italy of claims on its own behalf and on behalf of Italian nationals in the Peace Treaty of 1947).
31 ADI vol II (1885–91) 1166, 1186.
32 1954 Aix-en-Provence resolution on Immunity from adjudication and enforcement of foreign States, Art 3.
33 Empire of Iran case, German Federal Constitutional Court, 30 April 1963; UN Legal Materials 282; 45 ILR 57 at 81.
34 In English law, foreign sovereigns and States recognized by the UK government have locus standi as a proper party to institute proceedings and hence to defend them when they consent and waive immunity. An unrecognized foreign State and any of its authorities cannot sue or be sued in the English court but it will have locus standi in the English court if it is a subordinate body set up by a recognized State to act on its behalf: GUR Corpn v Trust Bank of Africa [1987] 1 QB 599, [1986] 3 All ER 449, 75 ILR 675. In some countries a foreign State is not considered to have capacity to initiate litigation.
35 Clerget v Banque Commerciale pour l’Europe du Nord, French Ct of Appeal, 7 June 1969, 52 ILR 310, Cour de Cassation, 2 November 1971, 65 ILR 54.
36 Brief for the US as Amicus Curiae in Support of Affirmance, Matar v Dichter, No 07-2579-cv (19 December 2007).
37 UNCSI Art 26 provides that nothing in the Convention shall affect the rights and obligations of States parties under existing international agreements which relate to matters dealt with in the Convention as between the parties to those agreements; and Art 3 provides that UNCSI is without prejudice to the privileges and immunities of diplomatic missions, Heads of State ratione personae, and aircraft or space objects owned or operated by a State.
39 Jurisdictional Immunities, para 57.
41 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo/Belgium), ICJ Reports 2002, Judge Koroma, Separate Opinion, para 5.
42 Arrest Warrant, Judge Koroma, Separate Opinion, para 5, Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal, para 3.
43 Privileges, though restricted by some authors to matters of comity relating to status, prestige, honour, protocol, or courtesy, may result from the exercise of such a jurisdiction to prescribe which may vary the substantive law in favour of the foreign State. A State may claim and enjoy other privileges and immunities from the forum State, such as immunity for its nationals from military conscription or the privilege of not paying import duties or having preferential rates on petroleum, fuel, or alcoholic drinks, but these are not the direct concern of the plea of State immunity before a court. Reinisch, International Organisations before National Courts (2000), 13–15.
44 This is well illustrated by the analogous case of diplomatic immunity where in Dickinson v Del Solar [1930] KB 376 the court held the company who insured the driver involved in a motor accident liable under the policy to pay damages for injuries caused, notwithstanding that the driver as secretary of the Peruvian delegation enjoyed diplomatic immunity.
45 Jurisdictional Immunities, paras 58, 93.
46 Jurisdictional Immunities, para 100. For a discussion of the relationship of attribution to immunity, see Fox, ‘Imputability and Immunity as Separate Concepts: The Removal of Immunity from Civil Proceedings Relating to the Commission of an International Crime’ in Kaikobad and Bohlander (eds), Essays in Honour of Colin Warbrick (2009), Ch IV.
47 Jurisdictional Immunities, para 101.
48 See the Rome Statute of the International Criminal Court, Arts 27(1) and 98(1) and Ch 18.
49 R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (Amnesty International Intervening) (No 3) [2000] AC 147, [1999] 2 All ER 97 (cited as Pinochet (No 3)); 119 ILR 135. See Fox, ‘The Pinochet Case No. 3’ (1999) 48 ICLQ 687.
50 Gaddafi, sub nom SOS Attentat and Castelnau d’Esnault v Khadafi, Head of State of the State of Libya, France, Cour de Cassation, Crim Chamber, 13 March 2000, No 1414; 124 ILR 508; the court quashed a ruling of the Paris Court of Appeal that absolute criminal immunity of a serving head of State was subject to an exception in respect of a terrorist offence of use of explosives causing the destruction of an aircraft in flight and loss of life to French nationals.
51 Habré, Senegal, Court of Appeal of Dakar, 4 July 2000; Cour de Cassation, Dakar, 20 March 2001; 125 ILR 569: the court annulled a prosecution initiated against the former President of the State of Chad for alleged complicity in acts of torture.
52 The distinction between the immunity of the official and that of the State was emphasized by the ICJ in Jurisdictional Immunities when it stated ‘Pinochet concerned the immunity of a former Head of State from the criminal jurisdiction of another State, not the immunity of the State itself in proceedings designed to establish its liability to damages’ para 89.
53 ICJ Reports 2002.
54 Langer ‘The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational Prosecution of International Crimes’ (2011) 105 AJIL 1, 45–7. See UK Police Reform and Social Responsibility Act 2011, clause 153 (requiring private individuals to obtain the consent of the Director of Public Prosecutions before being granted a warrant for the arrest of anyone suspected of committing grave breaches of the Geneva conventions outside the UK).
55 Arrest Warrant, ICJ Reports 2002, para 61; Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal, paras 85, 89; Zhang v Zemin [2010] NSW CA 255, 141 ILR 542, former head of State of PRC immune from prosecution for torture; see Ch 17.
56 As regards both immunity from adjudication and enforcement, an exception to such civil jurisdiction was long accorded to claims such as property claims and succession which by reason of the location and immovable nature of the property within the territory of the forum State result in the inevitable exercise of the latter’s jurisdiction. See Ch 13 property and succession claims.
57 Jurisdictional Immunities, para 60.
58 As a procedural plea, it is to be contrasted with the legality of the act, which is to be determined only on the exercise of the forum State’s jurisdiction.
59 Jurisdictional Immunities, para 113.