State Immunities From Municipal Jurisdiction - International Law

Under customary IL, the state itself is absolutely immune from the exercise of jurisdiction by local courts in respect of sovereign acts of state (juri imperii).

1. The immunity is absolute in respect of sovereign acts, even for serious violations of international human rights law, the law of armed conflict or rules of jus cogens (Jurisdictional Immunities case)

2. The state and its trading agencies do not enjoy immunity in respect of private commercial acts (jure gestionis).

Two questions arise in deciding if a government department or separate agency should enjoy immunity. If both are answered positively, the state can claim immunity.

1. Is the entity part of the state?

The UN Convention on Immunities Art 2(1)(b) provides that a State includes [choose whichever relevant]

• the state and its various organs of govt, constituent units of a federation, agencies or instrumentalities of the state, and the representatives of state acting in that capacity.

2. Is the act done in the exercise of sovereign authority (‘governmental’)?

Governmental acts, according to Lord Wilberforce in the I Congreso case, are those where not only is ‘the purpose or motive of the act… to serve the purposes of the state’ but ‘the act is of its own character a governmental act, as opposed to an act which any private citizen can perform…’

Individuals acting in state capacity will be protected by state immunity. If the following two questions are answered positively, the individual is entitled to claim immunity.

1. Is [X] an individual in a role to whom immunity attaches?

• The immunity clearly extends to heads of state, heads of government and senior government officials (such as ministers of government) (Arrest Warrant case)

• Immunity extends to individuals carrying out acts of state; however, it is unsettled which level and kind of state official is entitled to claim immunity from municipal jurisdiction.

  • In Djibouti v France it was held that as the officials in question were not diplomats or consular staff, they could not validly claim immunity for their personal acts.

2. Does the act of [X] fall within the scope of the immunity?

Whether [X] is immune will depend on whether he/she is still serving in office; if not, immunity from prosecution will apply only to acts done in the exercise of an official function.

Is [X] still a serving government official?

Yes, serving as a high ranking officer (eg heads of government, heads of state, senior officials and ministers): Absolute immunity from the jurisdiction of national courts appears to apply to all acts of high ranking officers while serving, regardless of whether the act is official or private in nature, and regardless of whether the acts took place before the person was in office or during the period of office (Arrest Warrant Case). This arises because of the status of the person (ratione personae) and will exist while [X] is in office.

Whether [X] may be prosecuted after leaving office will depend upon the nature of the act and whether it is classed as an official act. [Go on to consider this if necessary/time]

Yes, serving as a mid/low ranking officer: While absolute immunity applies to high ranking officers per the Arrest Warrant case, it is uncertain what the scope or extent of state immunity is in relation to lesser government officials while serving in office. [Consider arguments of X or others]

No: As [X] is no longer serving, whether the act will attract immunity will depend on its nature and whether it is an official act.

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