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Law Notes Public International Law (Detailed Version) Notes

Immunity From Jurisdiction Notes

Updated Immunity From Jurisdiction Notes

Public International Law (Detailed Version) Notes

Public International Law (Detailed Version)

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9. Immunity from Jurisdiction State Immunity State immunity precludes the courts of the forum State from exercising adjudicative and enforcement jurisdiction in certain classes of case in which a foreign State is a party. * The grant of immunity is now understood as an obligation under customary international law. *> The application of immunity depends substantially on the law and procedural rules of the forum. Two kinds of State immunity * Immunity ratione materiae, i.e., by reason of the subject-matter. *> Rationale: if organs of the forum State could decide on core questions pertaining to the functioning of a respondent State without its consent, the respondent State's sovereignty would be to that extent impugned. *> Restrictive theory of immunity * Immunity is only required with respect to transactions involving the exercise of governmental authority (acta iure imperii) as distinct from commercial or other transactions which are not unique to the State (acta iure gestionis). * Only China, India and a small number of developing States now follow the absolute immunity approach. * Immunity ratione personae *> Foreign State officials should not be impeded in the performance of their functions by a host State's exercise of adjudicative or enforcement jurisdiction over them. *> Immunity does not bar prescriptive jurisdiction --> foreign officials are not exempt from compliance with the laws of the host State. *> Immunity belongs to the State and not the individual * Thus immunity covers all acts by the agent during the period of office. * Difference between "immunity ratione materiae" & "immunity ratione personae" *> Once the period of office ends, immunity ratione personae will expire; *> however, immunity rationae materiae continues if the acts concerned are such that State immunity attaches. "Act of State' doctrine * Courts will not question a legislative or other act of a foreign State with effect in that State's own territory. "Non-justiciability" doctrine * Courts will not adjudicate upon the transaction of foreign States, wherever they occur. Waive of immunity * A State is deemed to have waived its immunity if it institutes proceedings, or intervenes, or takes any step in the proceedings: s 2(3) State Immunity Act 1978 (UK) Rationale The doctrine of State immunity is justified on the basis of equality, independence and dignity of States:The Schooner Exchange Restrictive theory: I Congreso case Under the 'restrictive' theory the court has first to characterise the activity into which the defendant state has entered. *> Test for the distinction between acts iure imperii and iure gestionis is the "nature" of the act, not its "purpose": I Congreso case * In a contractual context, the Courts must look not only to the nature of the contract, but also to the nature of the breach: I Congreso case - If a contract is an act iure imperii, there is immunity; - If it is an act iure gestionis, a defence of immunity may still succeed if the act in breach of contract is an act iure imperii. *> Whether action/contract was "within the essential sphere of state authority"; whether it involved/required the exercise of sovereign powers, directly or indirectly: Holland v Lampen-Wolfe *> Consider "the whole context within which the claim against the state is made": I Congreso case *> Look at the foreign law governing the entity in question (constitutive instruments etc.) but also its functions and the degree of state control in practice:Trendtex Trading 1 9. Immunity from Jurisdiction Once pleaded, the burden rests with the plaintiff to disprove foreign state immunity, according to civil standard of proof (balance of probability) Al- Adsani v Gov't of Kuwait. Assuming an act iure gestionis is found by the Court, it should then be for the defendant State to point to some act clearly done jure imperii. 1. The schooner Exchange, owned by John M'Faddon and William Greetham, sailed from Baltimore, Maryland, on October 27, 1809, for San Sebastian, Spain. 2. On December 30, 1810, the Exchange was seized by order of Napoleon Bonaparte. 3. The Exchange was then armed and commissioned as a French warship under the name of Balaou. 4. When the vessel later docked in Philadelphia due to storm damage, M'Faddon and Greetham filed an action in the district court to seize the vessel, claiming that it had been taken illegally. 5. The US A-G filed a suggestion to the effect that the Court should refuse jurisdiction on the ground of sovereign immunity. The Court found that the vessel in question was exempt from US jurisdiction. Par in parem non habet imperium (an equal has no authority over an equal), i.e., equality 1. In 1973, Cubazucar, a Cuban State trading enterprise, contracted to sell sugar to a Chilean company. 2. The first ship (Playa Larga) operated by the Cuban State trading enterprise which was legally independent of the Government and not departments of Government under Cuban law.The cargo on this ship was being discharged in Valparaiso when there was a change of government in Chile, of which Cuba disapproved. Under the order of the trading company, the ship left Valparaiso without discharging the remainder of its cargo and those goods was later sold to someone else in Cuba. 3. The second ship (Marble Islands), which was on the high seas on its way to Valparaiso when the change of government occurred in Chile, was ordered by the trading company, on Cuban Government instructions, to sail to North Vietnam. During the journey, it became a Cuban ship owned by the Cuban Government. On arrival in Haiphong, the cargo was sold by the master, on behalf of the trading company to a third Cuban State trading enterprise and was donated by the purchaser to North Vietnamese people. It was proved that these actions were taken in accordance with Cuban Government instructions. 4. In this case, the I Congreso (a third ship) owned by Cuban Government, was arrested in British waters on the application of the Chilean owners of the cargoes of the first and second ship, who had instituted proceedings in rem in English HC for breach of contract (non-delivery) and in tort (for detinue or conversion). 5. The Cuban Government entered a defence of State immunity. Held, the second ship enjoyed immunity while the first did not. The Schooner Exchange v McFaddon (1812) The decision is regarded as an the "first definitive statement of the doctrine of foreign state immunity"Chief Justice Marshall delivered the opinion of the court. * He noted that a by the definition of sovereignty, a state has absolute and exclusive jurisdiction within its own territory, but that it could also by implied or express consent waive jurisdiction. * Moreover, Marshall also noted that under international custom jurisdiction was presumed to be waived in a number of situations. *> For instance, a foreign sovereign and his diplomatic representatives were generally free from the jurisdiction of domestic courts when visiting. *> Similarly, if a state granted permission for a foreign army free passage across its territory, it generally implied a waiver of jurisdiction over that army. This custom was firmly enough established and necessary for international relations that it would be wrongful for a country to violate it without prior notice. One sovereign being in no respect amenable to another, and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license or in the confidence that the immunities belonging to the independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him. The perfect equality and absolute independence of sovereigns, and this common interest impelling them to mutual intercourse, and an interchange of good offices with each other have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation. I Congreso Del Partido (1983) Foundations of restrictive theory "Restrictive theory" arises from the willingness of States to enter into commercial, or other private law, transactions with individuals. It appears to have two main foundations: * It is necessary in the interest of justice to individuals having such transactions with States to allow them to bring such transactions before the courts; * To require a State to answer a claim based upon such transactions does not involve a threat to the dignity of that State, nor any interference with its sovereign functions. Nature of the acts considered As a means for determining the distinction between acts jury imperii and jury gestionis one should rather refer to the nature of the state transaction or the resulting legal relationships, and not to the motive or purpose of the state activity. It thus depends upon whether the foreign state has acted in exercise of its sovereign authority, that is in public law, or like a private person, that is in private law Burdens of proof * Under the 'restrictive' theory the court has first to characterise the activity into which the defendant state has entered. Having done this, and (assumedly) found it to be of a commercial, or private law, character, it may take the view that contractual breaches, or torts, prima facie fall within the same sphere of activity. * It should then be for the defendant state to make a case that the act complained of is outside that sphere, and within that of sovereign action. * In order to withdraw its action from the sphere of acts done jure gestionis, a State must be able to point to some act clearly done jure imperii. 2 1. In 1975, the Central Bank of Nigeria issued a letter of credit in favour of the plaintiffs, a Swiss company, for the price of cement to be sold by the plaintiffs to an English company which had secured a contract with the Nigerian Government to supply it with cement for the construction of an army barracks in Nigeria. 2. When, under the instructions from the Nigerian Government, the bank refused to honour the letter of credit, the plaintiff brought an action in personam against the bank in the English HC. Held, judgment for the plaintiff. 1. The plaintiff, a US citizen, taught, under an agreement between the US Government and the American University at which she was a professor, an international relations course to US military personnel and their families at a US military base in England. 2. She brought defamation proceedings against the defendant, a US citizen, who was a civilian employed by the US Department o Defence as an education services officer at the base who had written a memorandum containing criticisms of the plaintiff 's teaching. 3. The US claimed immunity on the defendant's behalf. The Court considered the nature of the provision of the service and held it belonged to an act of the State. 9. Immunity from Jurisdiction Trendtex Trading Corp. v Central Bank of Nigeria [1977] QB 529 To check whether the organisation was under the government control and exercised governmental functions Need to look into the functions and control of the organisation. NOTE: the case will not be so decided under s 14 State Immunity Act 1978 (UK). Holland v Lampen-Wolfe [2000] Where the immunity applies, it covers an official of the State in respect of acts performed by him in an official capacity. * The defendant was responsible for supervising the provision of educational services to members of the United States armed forces in the UK and their families. * He published the material alleged to be defamatory in the course of his duties. * If the provision of the services in question was an official or governmental act of the US, then so was its supervision by the defendant. * Therefore, the defendant was held as acting as an official of the US in the course of the performance of its sovereign function of maintaining its armed force in this country. UN Convention on Jurisdictional Immunities of States and Their Property 2004 Who enjoys immunity? art.2(1)(b) (i) the State and its various organs of government (ii)constituent units of a federal State or political subdivisions of the State, which are entitle to perform acts in the exercise of the sovereign authority and are acting in that capacity; (iii)agencies or instrumentalities of the State or other entities, to the extent that they are entitled to perform and are actually performing acts in the exercise of sovereign authority of the State; (iv)representatives of the State acting in that capacity. Definition of "commercial transaction: art.2(1)(c) (i) any commercial contract or transaction for the sale of goods or supply of services; (ii)any contract for a loan or other transaction of a financial nature, including any obligation of guarantee or of indemnity in respect of any such loan or transaction; (iii)any other contract or transaction of a commercial, industrial trading or professional nature, but not including a contract of employment of persons. * In determining whether a contract or transaction is a "commercial transaction" under paragraph 1 (c), reference should be made primarily to the nature of the contract or transaction, but its purpose should also be taken into account if the parties to the contract or transaction have so agreed, or if, in the practice of the State of the forum, that purpose is relevant to determining the non-commercial character of the contract or transaction. State enterprise [?] State: art.10(3) * Where a State enterprise has an independent legal personality and is capable of * suing or being sued; and * acquiring, owning, or possessing and disposing of property, including property which that State has authorised it to operate or manage, is involved in a proceedings relating to a commercial transaction, State immunity cannot be invoked. General principle of immunity: art.5 * A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the Courts of another State. Waive of immunity Express waiver: art.7 * by international agreement * in a written contract * by a declaration before the court or by a written communication in a specific proceeding. Implied waiver * itself instituted the proceedings: art.8 * intervened in the proceeding or took any other steps relating to the merits (with exceptions): art.8 3

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