State Immunity/ Sovereign Immunity

Why should states be given immunity?

Par in parem no habet imperium: an equal has no power over an equal. It is
impossible for one sovereign state to exercise authority over another sovereign
state. This is based on sovereign equality of states.

Rules on state immunity are largely part of customary international law. There are
only two treaties on this subject.
● 1972 European Convention on State Immunity
● UN Convention on the Jurisdictional Immunity of States and their Property
2004

There are two theories in respect of state immunity

- Absolute immunity theory
- Restrictive immunity theory

Absolute Immunity Theory -

Foreign states were immune from the jurisdiction for all acts whatsoever. Normally
the practice of a state is to grant foreign states absolute immunity from jurisdiction of
their courts.
Such practice causes hardship to individual litigants, there was no remedy for them,
denied the protection of the law even in the clearest cases of wrongful act by the
foreign states.

After the first world ward, there is expansion in world trade, caused state involvement
in commercial activities increased. These changes led to the development of
restrictive immunity theory.

Restrictive Immunity Theory -

States can enjoy immunity from the jurisdiction of a municipal court only in respect of
their governmental acts (acta jure imperii) not in respect of their commercial acts
(acta jure gestionis)
Where a state undertakes commitments of a private law nature there would be no
good reason why any disputes arising from such commitment should not be
determined by ordinary courts of law.

Restrictive Immunity is the prevailing doctrine

The principles of restrictive immunity adopted by most states, US, UK, Australia,
Canada have enacted legislation on state immunity adopting restrictive doctrine.
Other countries such as Ireland, New Zealand, Nigeria dont have legislation but their
courts have accepted that the restrictive doctrine is now applicable.

The restrictive immunity theory has a long standing history in most continental
systems. International conventions that adopted restrictive immunity
- UN Convention on the Law of the Sea 1982
- European Convetion on State Immunity 1972
- UN Convention on the Jurisdictional Immunity of States and their Property
2004.
Conclusive Restrictive Immunity is the prevailing doctrine.

Distinction between Sovereign Act and Commercial Act

Subjective Test (purpose of the act)

The applicatio of a purpose test invariably favours the state party and enlarges its
immunity. (State A purchased 10K boots for its military, by purpose its a sovereign
act which can claim immunity although the nature of the act is commercial.)

Therefore that it has not found favour with national courts especially in common law
jurisdiction.
Trendtex Trading Corporation v Central Bank of Nigeria 1977
Held - the purpose of a state’s act was immaterial in deciding whether it was
governmental or commercial. It was sufficient if the nature of the transaction itself
was of a commercial type.
Victory Transport Inc V Comisaria General De Abastecimientos 1963
Held - the court pointed out that the purpose test was unsatisfactory because all of
the actys of a state could be said to have a public purpose of some sort.

Objective Test (Nature of the Act)

Nature of the act test - whether the key transaction is a private law relationship such
as contract, which made by a private individual without any governmental authority.
(a contract of purchase military uniforms with a state, although a state is party to it
and the purpose of the contract is a governmental act) the nature of the act or
transaction is matter, purpose of the act is irrelevant.

US - Foreign Sovereign Immunities Act 1976 - the commercial character of an

activity shall be determined by reference to the nature of the course of conduct or
particular transaction or act rather than by reference to ts purpose.

UK - Trendtex Trading Corporation v Central Bank of Nigeria 1977, the court

adopted the nature of the act and rules Nigeria does not have immunity.

I Congress del Partido 1981 - Lord Denning refused immunity to the cuban
government, arguing that it did not matter what was the purpose of the repudiation
and that the motive cannot alter the nature of the act.

The nature test is not entirely satisfactory due the fact some contracts which ar prima
facie commercial transaction can only be made by states (purchase of Fighter Jets).
Furthermore the nature test is also cannot protect a developing state who rely
commercial contracts with foreign investors for development of economy and
facilities.
The Two Stage Test (nature of the act in its context)

I Congress del Partido 1981 -

HOL developed the nature of the act in its context test - the court has to examine the
entire context, look at the whole case, both the initial transaction between the parties
and the particular act that gives rise to the disputes
In order to the matter to be Jure Gestionis ( by way of doing business) both of the
initial act and the act give rise to the claim have to be a private law act ( acts which
could be performed by any private citizen).
Cuba’s claim of state immunity were denied on the basis that the initial act was a
contract for the supply of sugar and this is a private law act and then is the act which
caused the dispute - the second act - the diversion of the ships and the discharge of
the cargo. This also can be done by any owner of a ship who exercising the normal
powers of ownership. Thus, this is also a private law act, thus, no immunity given to
Cuba.
This is the prime example of the two stage test, the nature of the act in its context,
the initial act and the act that gave rise to the dispute whether private law acts.

The contextual approach

Look to the purpose of transaction when a nature only consideration is inadequate.
Many developing countries standpoint argues that purpose is an important
consideration when a government are engaging in contractual transaction vital to the
national economy.

United States v Public Service Alliance of Canada 1992

US claiming immunity is respect of Canadian workers employed on a US military
base in Canda. The Canadian Supreme Court decided
“The nature of he disputed transaction was central in deciding whether the
transaction was commercial but that its purpose may well affect what that nature
actually is”. While the contract was undoubtedly commercial in nature, the context
was undoubtedly sovereign ( an employment contract, the context is on a foreign
state’s military base).
UN Convention on Jurisdictional Immunity of States and Their Property
2004
Reaffirms the restrictive immunity theory, and follow contextual approach in
determining between a comercial act and a sovereign act.
Art 2(2) of the Convention (determining whether a particular contract/ transaction is a
commercial transaction)
“Reference should be made primarily to the nature of the contract or transaction but
its purpose shold also be taken into account of the parties to the contract or
transaction have so agreed or if in the practice of the state of the forum, the purpose
if relevant to determining the non commercial character of the contract or
transaction”.
The Malaysian Practice

Before the land mark decision of the case of Commonwealth of Australia v

Midford (Malaysia) Sdn Bhd 1990, Malaysia applied the doctrine of absolute
immunity whereby a foreign state is absolutely immune from the jurisdiction of
Malaysian Courts (Village Holdings Sdn Bhd v Her Majesty the Queen in Right
of Canada (1988)).
Although in this case the supreme court allowed the appeal of Australia who claiming
sovereign immunity, the courts approach were directed towards restrictive doctrine
two stages test which is a test to determine thenature of the act in its context.
“ we have to consider whether the acts complained of were done within the trading or
commercial activity of the foreign state, whether they were acta jure gestonis or
whether the acts were within the sphere of acta jure imperi? We were of the view
that the acts of two Australian custom officers could not be classified as
trading/commercial, were there acta jure imperi. In applying the doctrine of sovereign
immunity our courts, should have disclaimed jurisdiction in this case”.

Head of State Immunity (state officials immunity)

By reason of the functions which they exercise on behalf of the state, are treated as
a state, which enjoys immunity under international law.
The very first distinction that needs to be made in the discussion of a head of state
immunity is whether the case is a civil proceeding or a criminal one.

Immunity from civil proceedings

The general rules is that a head of state will be immune from jurisdiction of courts for
purely sovereign acts and will not be immune fro commercial acts according to
restrictive immunity theory which is also the current position of customary
international law.
Immunity from criminal proceedings
The preliminary question that needs to be raised is whether the proceeding is before
an international court or a national court.

No immunity from criminal proceedings

Art 27(1) of the Rome Statute of the International Criminal Court
“This statute shall apply equally to all person without any distinction based on official
capacity. In particular, official capacity as Head of State/Government, a member of
government/parliament , an elected representative or government official shall in no
case exempt a person from criminal responsibility under the statute.”
Therefore, there is no bar to criminal proceedings before the international court and
tribunals upon the head of state/government.

Immunity before national courts

Three distinction need to be made in any discussion on head of state immunity
before national courts.
- Whether the person is claiming immunity is a serving head of state or former
- Whether the act was done in a private capacity or in an official or public
capacity
- Whether it was an ordinary crime or an international crime.

Immunity of serving head of state

Personal inviolability
It is generally accepted that the hea of state, when abroad, is entitled to personal
inviolability and freedom from arrest or detentiion equal or greater than that enjoyed
by a diplomat
Schooner Exchanger 1812 - “exemption of the person of the sovereign from arrest
or detention within a foreign territory”.
Immunity from criminal proceedings
A serving head of state enjoys absolute immunity from criminal proceedings in
respect of both acts performed in the course of official functions and private acts

Gaddafi case 2001 - the French Cour De Cassation held that Colonel Gaddafi as
head of State of Libya was immune from jurisdiction in respect of alledged complicity
in acts of terrorism leading to the destruction of a civilian aircraft in 1999

Minister for Foreign Affairs

Under the Vienna Convention on the Law of Treaties (Art 7) the minister for foreign
affairs is considered to represent his or her state.

Arrest Warrant Case

ICJ confirmed that a minister for foreign affairs, responsible for his or her state’s
relations with all other states, occupies a position as such that like the Head of State
or Head of Government. He/she does not have to present letters of credence, the
consequence of such status was to confer personal inviolability and immunity from
criminal jurisdiction.

Immunity of Former Head of State

A distinction has to be made between a private act and an official act made by a
former head of state. A former head of state has no immunity in respect of private
acts committed while in office.
Noriega case 1990 - drugs offences committed by General Noriega when head of
Panama have been regarded by the US courts as private acts for which no immunity
survives.
Pinochet Case 1999
A former president of Chile, indicted by a Spanish on charges of tortue and
conspiracy to torture he committed during his tenure as head of state.
While Pinochet in UK for treatment, Spanish Government request the UK
government to extradite Pinochet to Spain under the extradition treaty between the
two government.
The issue arose whether Pinochet was immune from the proceedings as a former
head of state. Whether the functions of a head of state covered the commission of
an international crime??
“The functions fo a head of state do not include the commission of an international
crime; it is against logic to say that international law permits an act which is actually
strictly prohibited by international law itself”.
According to the court a serving head of state is entitled to immunity even though he
has allegedly committed an international crime because he is being protected by
immunity ratione personae (his official status as head of state protecs him)
He is not entitled to immunity ratione materiae (subject matter Immunity- whether his
actions were private act or not) as the commission of an international crime cannot
be a function of a head of state.
However, a former head of state, if he committed an international crime while he was
a head of state, is not entitled to immunity; both ratione personae and ratione
materiea.
Therefore, Pinnochet is not immune from criminal proceedings.

State Immunity versus International Crimes

In Arrest Warrant Case 2002 a Belgian court issued a arrest warrant against
Congo’s Minister of Foreign affairs for crimes against humanity for speeches
addressing racial hatred whereby inciting the massacre of Tutsi tribe in 1998.
Belgium asserted that it was exercising its universal jurisdiction to try international
crimes. The arrest warrant was circulated internationally through interpol.

The ICJ after examining state practice, stated that under customary international law
there is no exception to the rule, immunity from criminal jurisdiction and inviolability
to incumbent (a person currently holds the office) Ministers for Foreign Affairs, where
they are suspected of having committed war crimes or crimes against humanity.
Therefore the ICJ rules that throughout the duration of his/hers office a minister for
foreign affairs when abroad enjoys full immunity from criminal jurisdiction and
inviolability. Thus, the arrest warrant violated the Immunity that Congo’s incumbent
Minister for Foreign Affairs enjoys.

THis rulling of the court is not in contradictory to Pinochet case because it confirms
the immunity of a foreign minister in office. Just in the Obiter Dictum the court stated
that even the former foreign minister would also be immune for their official acts. The
court rulling mainly stressed on the part that there is no customary international law
established yet to derogate immunity of state officials who commit international
crimes. Therefore, the better view would be still the Pinochet case.

The present position of law

- A serving head of a state, as long as he is in office, he enjoys full immunity
from jurisdiction and inviolability for what ever act he may perform (immunity
ratione personae)
- Former head of state, once he leaves office, he may continue to immune from
jurisdiction for the acts he performed in his official capacity (ratione materiae -
whether his action is official or private) but not for his private acts.
- If he committed an international crime when he was a head of state, he is not
entitled to immunity because commission of an international crime cannot be
an official act of a state - pinochet ruling (international crime is not official
duty).
Diplomatic Immunity
Vienna Convention on Diplomatic Relation 1961 (192 parties = universal
acceptance)

Establishment of a diplomatic Mission

Art 2 Vienna Convention on Diplomatic Relations - Diplomatic relations are
established by mutual consent between the two staes concerned
● Sending state
● Receiving state

The receiving state’s consent is required for the selection of the head of the
mission (from sending state) - Art 4 Vienna Convention on Diplomatic Relations.

Inviolability (secureness from violation, assault or trespass)

The principle of inviolability is sacrosanct. There are two main forms of inviolability,
● Inviolability of the premises of the mission
● Inviolability of diplomatic agents

Tehran Hostages Case - “there is no more fundamental prerequisite for the conduct
fo relations between states than the inviolability of diplomatic evovys and
embassies”.
Inviolability of the Premises of the mission
Enshrined in Art 22 and it has three aspects
- Inviolability of the premises and not to enter without consent
- Special duty to protect the premises against intrusion or damage
- Immunity of premises, property and means of transport

Inviolability of the premises and not to enter without consent

Art 22(1) - the premises of the mission shall be inviolable (the agent of the receiving
state may not enter them, except with consent of the head of the mission) (absolute
rule).

767 Third Avenue Associates v Permanent Mission of Zaire 1993

A New York land lord have entered tenancy agreement with mission of Zaire, the
mission defaulted in rental payment and refused to vacant the premisses when
notice been served by the land lord, invoking mission inviobility under Art 22 of the
VC.
The court relied on commentary of the International Law Commission “the receiving
state is obliged to prevent its agents from entering the premises for any official
purpose whatsoever”. The court accordingly held the inviolability of a UN mission
under international and US law prevent the agents of the receiving state to
commence the forcible eviction of the mission.

Art 22(1) contains no proviso relating to cases of emergency. What could the
authorities of the receiving state do in cases of emergencies?
Shooting Episode at Libyan Embassy
During an demonstration by Libyan opponents in front of Libyan People’s Bureau
(embassy) a shot were fired from the window of the Bureau, killing a lady police
officer who was in duty during the demonstration.
The receiving state(London) request the Libyan authorities to vacate the bureau
building so that a sweap can be done to search for weapon and explosives, the
request were denied. The British government ended the diplomatic relationship with
Libyan government and the mission have to leave the building by midnight.

State Practice is unequivocal, most state have strong objections to the forcible entry
of police or other enforcement officers into diplomatic permises. Inviolability had to
be absolute if the door was not to be opened to possible abuse by the receiving
state.

Special duty to protect the Premises against Intrusion or Damage

Art 22(2) “the receiving state is under a special duty to take all appropriate steps to
protect the premises of the mission against any instrusion or damage and to prevent
any disturbance of the peace of the mission or impairment of its dignity”.

Two duties
- Take all appropriate steps to protect the premises of the misiioon against any
intrusion or damage
- Prevent any disturbance of the peace of the mission or impairment of its
dignity

Tehran Hostages Case 1980

Several hundred Iranian students and demonstrators took possession of the US
embassy in Tehran by force. Archives adn documents were seized and 50 diplomatic
and consular staff were held hostage
The ICJ ruled that Iran had violated Art 22, Art 27, and Art 29 of the VC 1961
whereby under the convention
“Iran was placed under the most categorical obligations, as a receiving state, to take
appropriate steps to ensure the protection of the US embassy adn consulates, their
staff, their archives, their means of communications and the free movement fothe
members of their staff.”
Iran declined to participate in the proceedings did not comply with the courts
judgement.

Congo v Uganda
ICJ held the attacks on Ugandan Embassy in the capital of Congo is violation of Art
22. Further emphasis that
“The vienna convention not only prohibits any infringement of the inviolability of the
mission by the receiving state itself but also puts the receiving state under an
obligation to prevent others, such as armed militia groups from doing so”. - citing
Tehran case.

Immunity of Premises, Property and means of Transport

Art 22(3)
“The premises of the mission , their furnishings and other property, thereon and the
means of transport of the mission shallbe immune from search, requisition,
attachment or execution.

The Invilability of Private residence and of the archives and documents of the
mission
Art 24 - the archives and documents of the mission are inviolable at any time and
wherever they may be.
Art 30 - the private residence of a diplomatic agent also enjoys the same inviolability
and protection as the premises of the mission.
The SO Called right of diplomatic asylum
Most states does not recognise such right of diplomatic asylum exists in general
international law. If a person takes shelter within the premises of an embassy as a
fugitive from justice, he should be handed over to the authorities of the receiving
state if he is accused of a criminal charge and a warrant of arrest has been issued.

According to the contemporary international law diplomatic premises do not enjoy

‘extraterritoriality’. Current law only recognises inviolability of diplomatic premises
and such premises are regarded as part and parcel of the territory of the state in
which they are situated.

Case of temporary refuge - although the right of diplomatic asylum is not recognised
in law, the practice of states seems to show that diplomatic missions may grant
temporary shelter in cases of absolute necessity for preservation of innocent human
lives on humanitarian grounds.
Inviolability of Diplomatic agents

Art 29 Vienna Convention on Diplomatic Relations

“The person of a diplomatic agent shall be inviolable. He shall not be liable to any
form of arrest or detention. The receiving state shall treat him with due respect and
shall take all appropriate steps to prevent any attack on his person, freedom and
dignity”.
- Shall not be liable to any form of arrest or detention
- Treat him with due respect
- Shall take all appropriate steps to prevent any attack on his
● Person
● Freedom
● Dignity

This principle of personal inviolability of diplomatic agents is the most fundamental

rule of diplomatic law and is the oldest established rule sof international law.
The most blatant breach of this obligation is occurred in Tehran case whereby the
diplomats of US been held as hostages for 444 days by Iranian Student
Demostrators and Iranian government subsequently.
Again in Congo v Uganda - maltreatment by Congo armed forces of diplomats in
the Ugandan Embasy. Serious violation of Art 29

Is there any exception?

When the diplomat himself/herself commits an act of violance which disturbs the
internal order of the receiving state to such an extent that the receiving states finds it
necessary to restrain him/her from committing such acts.

Immunity from jurisdiction

● Diplomatic agents are immune from the jurisdiction of local courts
Immunity from criminal jurisdiction

Arrt 31(1) - A diplomatic agent shall be immune from the criminal jurisdiction of the
receiving state.
Immunity from criminal jurisdiction is absolute and a diplomatic agent canot under
any circumstances (apart from waiver) be tried or punished by the local criminal
courts of the state to which he is accredited.

However, a diplomatic agent is under an obligation to respect the laws of the

receiving state, and he/she remains as a subject to the jurisdiction of his own state.

Dickson v Del Solar 1930

“Diplomatic privilege does not import immunity from legal liability, but only exemption
from local jurisdiction”.
Art 31(4) Vienna Convention on Diplomatic Relations also provides that the
immunity of a diplomatic agent from the jurisdiction of the receiving state does not
exempt him from the jurisdiction of the sending state.

Immunity from Civil and administrative jurisdiction

Art 31(1) Vienna Convention on Diplomatic Relations diplomatic agents cannot
enjoy absolute immunity in respect of civil and administrative jurisdiction. Their
Immunity is subject to this three limitations
- A real action relation to private immovable property situated in the territory of
the receiving state
- An action relating to succession in which the diplomatic agent is involved as
executo, administrator, heir or legatee as a private person and not on behalf
of the sending state.
- An action relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving state outsided his official functions.
A diplomatic agent is not obliged to give evidence as a witness - Art
31(2)
Art 31(3) - No measure of execution may be taken in respect of a diplomatic agent in
the three exceptions for civil jurisdiction mentioned above.

Waiver of Immunity
Art 32 (1) Vienna Convention on Diplomatic Relations provides that the immunity
from jurisdiction of diplomatic agents may be waived by the sending state.
Waiver must be express.
If a proceedings initiated by the diplomatic agents, any counterclaim proceedings in
respect of his initiated proceedings, the diplomatic agents can invoke immunity from
jurisdiction.

Persons entitled to diplomatic immunity

Who is this person mentioned as diplomatic agent through out Vienna Convention on
Diplomatic Relations?
According to Vienna Convention on Diplomatic Relations a diplomatic agent is the
head of the mission or member of the diplomatic staff of the mission.
Diplomatic agent
- Minister
- Charge d’ affaires
- Ambassador
- envoy
Staff of the mission
- Counsellors
- Secretaries
- Attache officers
The extent of the privileges and immunities enjoyed by the other
personnel of a diplomatic mission varies according to the category to
which the person belongs:
- The members of the family of a diplomatic agent froming part of his
household, if they are not nationals of the receiving state, they shall enjoy all
the privileges of the diplomatic agent. (Art 29-36)
- Members of the administrative and technical staff of the mission together with
members of their families forming part of their households, shall if they are not
nationals or permanent residents in the receiving state, enjoy the privileges
and immunities from Art 29 to Art 35, except the immunity from civil and
administrative jurisdiction of the receiving state ( to acts performed outside the
course of their duties)
- Members of the service staff, if they are not nationals or permanent residents
in the receiving state shall enjoy immunity in respect of acts performed in the
course of their duties and exempt from dues and taxes on the emoluments
they receive by reason of their employment.
- Private Servants of members of the mission shall, if they are not nationals or
permanent residents in the receiving state be exempt from dues and taxes on
the emoluments they receive by reason of their employment.

Empson v Smith 1966 - the defendant was an administrative officer with the
Canadian High Commision
The Plaintiff sued for breach of a tenancy agreement, the defendant invoked
immunity from jurisdiction, the court held the defendant is not entitled to the immunity
because as a member of administrative and technical staff of the mission, his
immunity from civil jurisdiction does not extend to acts performed outside the course
of his official duties.
Meaning of Family
Engeke v Musmann 1926 - an ambassador’s family as his wife and his children if
living with the ambassador.

Immunity of a diplomatic staff who is a national of the receiving state.

- Entitled to less privileges and immunities
- Art 38 Vienna Convention on Diplomatic Relations
● Except additional privileges and immunities may be granted by the
receiving state, a diplomatic agent who is national or permanent
resident of the receiving state, shall enjoy only immunity from
jurisdiction and inviolability in respect of official acts performed in the
exercise of his functions
● Other members of the staff of the mission and private servants who are
nationals of or permanent resident in the receiving state shall enjoy
privileges and immunities only to the extent admitted by the receiving
state.
Duration of Immunity
Commencement (Art 39(1))
Diplomatic immunities and privileges commence from the moment the diplomat
enters the territory of the receiving state on proceedings to take up his post.
If already in the territory, from the moment when his appointment is notified to the
Ministry for Foreign affairs

Cessation Art 39(2)

Cease at the moment when he leaves the country or on expury of a reasonable
period in which to do so, but shall subsit until that time. However, with respect to the
acts performed by such a person in the exercise of his functions as a member of the
mission, immunity shall continue to subsist.

In respect of Private acts, the immunity is contigent and it ceases when the individual
concerned leaves his post. In the case of official acts, however the immunity is
permanent and it subsits, since the immunity is in fact that of the sending state.

Former Syrian Ambassador to teh GDR case 1998

The former Syrian Ambassador accused and found guilty for allowing explosives to
be transferred from his embassy to a terrorist group. It is foundede by the court his
action were exercise of his official functions. The court held Art 39(2) applied, since
his action were official functions thus he entitled to immunity.
Duties Of Diplomats and Diplomatic Missions, How to address abuse of
Immunity
Diplomats and diplimatic missions under the Vienna Convention on Diplomatic
Relations have three main duties to be strictly complied with - Art 41.
- Without prejudice to their privileges and immunities, it is the duty of all
persons enjoying such privileges and immunities to respect th laws and
regulationsof the receiving state
- Duty not to interfere in the internal affairs of the state
- The premises of the mission must not be used in any manner incompatible
with the functions of the mission as laid down in the present conventions or
general internationa law.
There are two possible way to deal with a case of abuse of immunity or violation of
laws by a diplomat
- To request the sending state to waive the immunity (Art 32)
- To declare the diplomat persona non grata (Art 9)

Art 32
If the sending state waived the immunity of its diplomat who violated the law of the
receiving state, the diplomat would no longer be protected by immunity adn
authorities of the receiving state could proceed with any legal action that was
available under its law against him.
Waiver of immunity of criminal charges is not common - it is rountinely sought and
occasionally granted.

Art 9
The receiving state may at any time and without having to explain its decision, notify
the sending state that the head of the mission or any member of the diplomatic staff
of the mission is persona non grata
In such case the sending state shall as a appropriate either recall the person
concerned or terminate his functions with the mission. If the sending state refuses or
fails within a reasonable period to carry out its obligations, the receiving state may
refuse to recognise the person concerned as a member of the mission.
Malaysian Practice
The parliament of Malaysia enacted the Diplomatic Privileges (Vienna
Convention) Act 1966 (revised 2004), to give effect to the Vienna Convention of
Diplomatic Relations 1961.
The Act provides in S.5
“If in any proceedings any question arises whether or not any person is entitled to
any privilege or immunity under this Act, a certificate issued byor under the authority
of the Minister stating any fact relating to that question shall be conclusive evidence
of that fact”.

PP v Orhan Olmez 1988

In regards of waiver of immunity
The first secretary of Embassy of Turkey gave evidence in an extradition proceeding
in the Magistrate’s court, his attendence was preceded by a diplomatic note from his
embassy that gist of which the officer would be present during the hearing in his
capacity as consul and solely for the authentication of legal documents.
However, on the same day the embassy sent another diplomatic notes stating that
the first secretary would not be attending court any more.
Counsel for the respondent applied to the court to issue a warrant of arrest, the issue
arised whether the diplomatic note amounted to a waiver of immunity or not. The
court ruled that “a waiver under the Vienna Convention must always be express”, the
restrictive language in the first diplomatic communication is clear and it cant be
construed as anything like a waiver of immunity.

Village Holdings Sdn Bhd v Her Majesty the Queen in Right of Canada 1988
In regards of Article 31 of the Vienna Convention
In this case the plaintiff had entered into an agreement to purchase premises used
as the residential accommodation of the diplomatic members of the Canadian High
Commission. Her Majesty The Queen is the registered proprietor of the property.
Court ruled Art 31 does not be invoked to waive the immunity of civil jurisdiction
towards private individuals or corporation, cannot be invoked towards head of a
state. Immunity of Sovereign is absolute.
Immunity of International Organisations.
As international organisations are vested by states with important functions, they
require privileges and immunities for the effective exercise of their functions.
There is a major difference between diplomatic immunity and immunity of
international organisations. The diplomat that immune from receiving state
jurisdiction still be subject to his own state jurisdiction. Whereas there is no such
thing existed in case of immunity of international organisations.

UN
Art 104 of the Charter
“The Organisation shall enjoy in the territory of each of its members such legal
capacity as may be necessary for the exercise of its functions and the fulfilment of its
purposes”.

Art 105 of the Charter

1. The Organisation shall enjoy in the territory of each of its members such
privileges and immunities as are necessary for the fulfilment of its purposes
2. Representatives of the members of the UN officials shall similarly enjoy such
privileges and immunities as are necessary for the independent exercise of
their functions in connexion with the organisation.
3. The GA may make recommendations with a view to determining the details of
the application of paragraphs 1 and 2 of this Art or may propose conventions
to the Members of the UN for his purpose.

Art 105(3) of the Charter, the GA adopted the Convention on the Privileges and
Immunities of the United Nations 1946 and the Convention on the Privileges and
Immunities of the Specialized Agencies 1947. Accordingly:-
- The UN has complete immunity frol all legal process (S.2)
- Its premises, assets, archives and documents are inviolable
- The General and the Assitant Secreteries - General of the UN can enjoy the
same privileges and immunities as the head of a diplomatic mission does.
 - Other officials of the UN have only limited immunities (in respect of their
official acts).

This Conventions are of a multilateral character. It is also necessary to conclude a

special treaty with the host state in whose territory the headquarters of the
Organisation situated. Certainly this agreements imposes a legal obligation on the
states under international law, however it is absolute necessary for states to
implement these obligations by passing municipal laws. (to provide local remedies)

The Malaysian Practice

The Intenational Organisations (Privileges and Immunities) Act 1992

Enacted to allow privileges an dimmunities to certain international organisations and

to person connected therewith.

Second Schedule - Provides that the high officers, their spouse and children below
21 years, privileges and immunities as are accorded to a head of diplomatic mission.

Fourth Schedule - Officers other than high officers enjoy immunity from suit and
fromother legal process in respect of acts and things done in his capacity as such an
officer.

Fifth Schedule - persons serving on committees or participating in work or

performing mission on behalf of an international organisation enjoy:-
- Immunities from personal arrest or detention
- Immunities from suit and from other legal process in respect of acts and
things done in serving on the committee, participating in the work or
performing the mission.
Cumaraswamy Case 1997
THe main issue before the Court was whether the words used by the special
Rapporteur in the Interview as published in the article in International Commercial
Litigation were spoken in th course of the performance of his mission and whether he
was therefore immune from legal process with respect of these words. (Two
Malaysian company filed a defamatory suit against the special Rapporteur)

The ICJ rendered its advisory opinion on “Difference Relating To Immunity from
Legal Process of a Special Rapporteur of the Commission on Human Rights 1999
Opinioned that the Special Rapporteur in speaking the words quoted in the article,
was acting in the course of the performance of his mission as Special Rapporteur of
the Commission and that the finding created a presumption of Immunity which could
give the greatest weight by national courts. Therefore the convention was applicable
to him in the present case and afforded the Special Rapporteur immunity from legal
process of every kind.