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....