FLB 300: PIL

SEMINAR 5:
STATE IMMUNITY
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State immunity

• state immunity means that a state or its officials

can not be sued in domestic courts
• Basis: “par in parem non habet imperium” one
cannot exercise authority over an equal.
• It refers to the immunity of the state and the
head of state as the embodiment of the state.
• State immunity has the obvious effect of staying
the charge and leaving the plaintiff without a
remedy against the state actor
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Schooner Exchange v. McFadden (U.S)
(1812)
• FACTS: Two Americans claimed that the
“Schooner Exchange” was their ship and
that it had been wrongly taken by French
forces. The U.S. Attorney argued on behalf
of France that the ship was French property
that had been driven into Philadelphia by
bad weather.
• ISSUE: Can a plaintiff sue the French gov’t
in U.S. courts?
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“Schooner Exchange”
• US Supreme Court Chief Justice Marshall
declared that the jurisdiction of a State
within its territory was exclusive and
absolute, but did not encompass foreign
sovereigns.
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Scope of Immunity

• state immunity is extended beyond the state

itself to:
a) government and governmental organs
b) leader of the government, foreign minister
and other ministers, officials and agents of
the state with respect to their official acts
c) public corporations independently created
but operating in effect as governmental
organs, and
d) state owned property
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Scope

• diplomats and other representatives

abroad are not on the list because their
behaviour is governed by multilateral
treaty
• immunity is granted through all phases of
the judicial process so that even if a state
submits to jurisdiction on the merits it may
not submit to execution of judgement
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Modification of the doctrine of immunity

• States (mostly western) sought to limit

immunity only to govt acts.
• In Dralle v Republic of Czechoslovakia the
Supreme Court of Arizona in 1950
concluded that the increased activities of
states in the commercial field had made
the classic doctrine of “absolute immunity”
to lose its meaning and was no longer a
rule of int’l law.
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Doctrine of Restrictive Immunity

• Where a state decides to enter into the

market place and engage in commercial
acts it no longer has immunity.
• main issue is the delineation of commercial
acts (jure gestionis) from sovereign acts
(jure imperii)
• Congo v. Venne a case before the
Supreme Court of Canada
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Congo v. Venne
• a Quebec architect built a pavillion for the
Congolese gov’t and was not
compensated—he sued the Congo and
they claimed state immunity
• Majority decision by Justice Richie: even if
the int’l law rule has moved to restrictive
immunity there is still immunity in this case
b/c the contract entered into by Congo w/
Venne was a public act of the Congo and
not a transaction
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Congo v. Venne
• Dissent by Justice Laskin: states trade
either directly through their gov’t or
through a closely connected entity and it is
time to recognize this change
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• the need for diplomatic relations led to the

development of principles of customary
international law that were then codified
first in the English Diplomatic Privilege Act,
1708 and then in the 1961 Vienna
Convention on Diplomatic Relations
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Diplomatic immunity

• two policy justifications for diplomatic

immunity:
1. functional theory—diplomats must be
free to serve their nation fully
2. diplomats owe no allegiance to foreign
states and are not subject to their laws
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Waiver

• Who can waive immunity?—In R. v. Madan it

was said that waiver must be undertaken by
the representative of the head of state with
full knowledge of his rights. It cannot be
waived by the person holding it unless he
does so on behalf of the head of state.
• immunity is the privilege of the state and not
the individual—waiver must be undertaken by
the head of the diplomatic mission—although
Madan says that the head of the diplomatic
mission may waive liability, that is not yet
clear
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Consular and Other Immunities

• Vienna Convention on Consular Relations, 1963—

consent to diplomatic relations implies consent to
consular relations
• consular relations are more administrative—involve
issuing visas, assisting nationals and furthering
commercial, economic, cultural and scientific relations
with host states
• immunity for consuls is more restricted—archives and
documents are inviolable, consuls must be treated with
respect and are not liable for arrest or detention except
for grave crimes
• civil and criminal liability is restricted to official acts
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To read:

• Yerodia Case (Congo v. Belgium)

• Article 27 Rome Statute
• Judgement of Ombija, J re: Arrest Warrant
for Al Bashir