LAWS1023 IMMUNITY FROM JURISDICTION

MICHAEL JOHN GABRIEL

Immunity from Jurisdiction
Two parts: (a) diplomatic immunity; and (b) immunity of foreign heads of state.

Remember that public international law is quite distinct from other subjects.
It’s often not that hard to find jurisdiction for a country’s claim.
- the key question is conflicting jurisdiction. States do not really mind so long as the
remedy is appropriate.

How do you enforce jurisdiction?

Italy, Germany and other Western States are adopting a different approach to the
‘absolute immunity’ for heads of state.
• For example, William Hague has rejected Ghaddafi’s diplomatic immunity.

(a) 1961 Vienna Convention on Diplomatic Immunity

This must be read. It is the law - must digest it yourself.
The law in this area is one of the most ancient. From city-states to today’s nation-
states
Without a diplomatic immunity, no trade or diplomacy could take place unless a
person was assured that they would have immunity from jurisdiction. From time
immemorial, the head of state has immunity.
This is a PROCEDURAL IMMUNITY. Can still be subject to substantive jurisdiction
(usually in your home state).
• Vienna Convention on Consular Relations deals with the day-to-day questions
such as how to repatriate a body of a deceased foreign national.
• State property is also covered by an immunity. No good getting a judgment
and not being able to ‘execute against the assets’.

Tehran Hostages Case

Facts: one of the rare cases where US was the applicant.
• A lot of anti-American feeling in Iran after the 1979 revolution.
• STUDENTS (without being advised by the State), decided to attack US
embassies and consulates. Entirely of their own volition.
• They wanted the return of funds and the return of the Shah.
• US denied that CIA had committed human rights violations.
• Students held consular staff hostage for 444 days.
• Not normally a matter of international law, but the ayatollah ADOPTED the
students’ actions.
• All consular staff moved by the army to the central embassy.
• US tried a number of means to try to end the situation. Even tried a lightning
raid (which was absolutely unsuccessful).
Held: Iran had breached the Vienna Convention on Consular Relations.
• Failed to protect the inviolability of the embassy.
• Breaches of Consular immunity are a strike at the edifice of international
law.
• Also, the state adopted the actions of its private citizens.
LAWS1023 IMMUNITY FROM JURISDICTION
MICHAEL JOHN GABRIEL
• Unfortunately, orders of the ICJ were completely ignored by Iran who
rejected the ICJ’s jurisdiction.
• Algeria ended up mediating the dispute.
Eg. Is Australia responsible for the action of Marrickville’s sanctions? Marrickville is a
subsidiary body.

Must know the law of the local country and the home country.

Graduation of Immunity - Article 37/VC on Diplomatic Relations

Commercial activities by a diplomatic agent are not excepted from jurisdiction. But do
have complete immunity to criminal jurisdiction.
• Families of the agent have the same immunity, unless they have the nationality
of the receiving state. Must know the law of the receiving country to determine
what is ‘family’: eg de factos not covered in Pakistan.
• Administrative and technical staff have immunity for actions only within the
course of their duties.
• Service staff only have immunity for actions within course of duty.
• Private servants: immunity depends upon the agreement between the two
states.
A diplomat gives their ‘credentials’ to a harbouring state, who decides whether or not
to accept them.
• Only usually rejected for political reasons.

What about abuse of immunity?

Article 41 - required to RESPECT the laws of the receiving country.

Waiver of Immunity by sending State?

See the Georgian case of waiving immunity.
Facts: Georgian diplomat was drunk, drove too fast in Washington DC and killed a
Brazilian national.
• Georgia waived immunity FOR CRIMINAL PROSEUCTION under Article 32.
Estate of victim sued.
• US state department intervened and argued that if ‘actions were non-
diplomatic, he is liable’.
Held: US District court found that there was a ‘residual immunity’ for CIVIL
DAMAGES as the action was close to within the course of his duties.

Now we are seeing that it is harder to escape civil jurisdiction.

Diplomatic Premises
Completely inviolable - see Iranian Hostages case.
It is not the territory of the sending state.
It is just inviolable in that the ambassador must consent to others entering.
• There is a special duty to protect ambassador’s residence and the sanctity of
the consular premises.
LAWS1023 IMMUNITY FROM JURISDICTION
MICHAEL JOHN GABRIEL
Domestic legislation upholds this.

(b) Foreign state immunity

This depends upon a range of laws.

Sovereigns are equal = how can each sovereign be subject to the jurisdiction of
another?

Parliament Belge
Facts: Proceedings against a Belgian Ship by a British national.
• Carried passengers and freight, for profit.
• UK AG intervened and argued that the ship had immunity as it was owned by
Belgian Crown. Despite it had been run for profit.
Held: upheld an absolute immunity - ship was covered.

This continued until Trendtex Trading per Lord Denning.

- when the bank tried to sue the Nigerian Government on letters of credit.
- The bank was acting as the alter ego of the government, which was a
commercial alter ego entering commercial transaction and thus open itself up to
suit.
- It doesn’t matter for what purpose the goods will be used.
- Thus immunity is being restricted.

*Immunity divided between ACTS (ratione materiae) and PERSONALITY (ratione

personae). If the former, immunity is everlasting.

If the former, once that personality (as head of state) is extinguished, you are open to
suit. But still have immunity for your acts. Article 39 of VCDP. Recall that this came up
in Pinochet (no 3).
- once it was clear that torture existed in English law, the courts were not willing
to let torture attract immunity.
- Committing egregious crimes could NOT be an official act. It cannot be said to
be official to commit torture.
- Remember that torture as a customary law was not found to be part of English
law.

There is a paradox: by definition, only a state or its official can commit torture. But this
cannot be an official act that attracts immunity. This was raised by HL.
- Torture is a peremptory norm: it mustn’t be excluded from jurisdiction. Immunity
must be excluded.

Vulnerability of persons is increasing.

French Cour de Cassation

LAWS1023 IMMUNITY FROM JURISDICTION
MICHAEL JOHN GABRIEL
Ghaddafi didn’t have immunity for a bombing of a nightclub.
If the crime is an international crime, immunity is not granted.
- Ghaddafi STILL the head of state here.

Distinction between Commerical acts vs Acts of the state - principle of

restrictive immunity.

A state will only have immunity for actions of a governmental nature. It will not have
immunity for a failure to perform under a contract, for example.

Recall Trendtex Trading. The purpose that the goods will be used for does not matter.

Claim against the Empire of Iran (1963)

Facts: claim of heating supplier and repairer to get embassy to pay.
Held: The critical question is the ‘nature of the act’. This is a simple commercial
transaction and should be respected.

Remember, very rare that a government will not respect the laws of the receiving
problem.

Questions
1. Distinction between commercial and acts of state?
2. What entities are entitled to immunity?
3. What acts/personalities are covered?

~~~~
Foreign States Immunities Act 1985 (Cth)
s 9 - foreign state is generally immune from Australian courts.

BUT s 11 - states are not immune in respect of commercial transactions (eg contracts
for supply of goods and services; loans; guarantees); personal injury; and/or
immovable property in Australia.
s 30 - state property is immune.
BUT
S 32 - cannot claim immunity over state commercial property.
S 36 - Diplomatic protections also apply to heads of government.

Tokic
Facts: demonstration in Sydney against Yugoslav embassy.
- Just before the fall of the Berlin Wall.
- Tokic, a student, was shot from a window of the embassy.
- Could there be an exception?
Held: at a minimum, the firing was negligence. Therefore, the government was liable
due to the shooter being an employee. This was PERSONAL INJURY.
LAWS1023 IMMUNITY FROM JURISDICTION
MICHAEL JOHN GABRIEL
Vast amounts of literature on this area. Most Western countries have similar
legislation.
Centrally-planned economies, in their supply contracts, try to keep the absolute
immunity principle. But what they do, to get business, they waive their absolute right.

It’s a fair statement to say that commercial transactions are not covered by immunity.

Should check precise terms of legislation for each jurisdiction. Most Asian states do
not have restrictive immunity, they claim absolute immunity.

Claims against states for torture

Al-Adsani
Facts: Arrested in Kuwait, abused by Kuwait government officials. Tortured.
- UK accepted that this was an act of state and as a result was protected by the
UK Foreign State Immunities Act.
Held: Despite egregious act, still immunity.
- Appeal to ECHR. ECHR rejected the appeal, stating that there is NO customary
rule that would deny immunity to a sovereign for torture.

This is a CIVIL action, not a CRIMINAL action. Criminal proceedings still do not
attract immunity (as was found in Pinochet).

Jones v Ministry of Interior

Facts: Jones arrested and tortured by state officials. Attempted to bring a civil claim.
Held: no exception that civil claims for torture do not have immunity.
It is a procedural rule, not a substantive immunity. The home country can still
prosecute.
Also, no rule requiring states to exercise jurisdiction over peremptory norms
- Not required to exercise right of humanitarian intervention (if it even exists in
international law)
- The UK should have taken up Jones’ claim as a diplomatic protection issue on
his behalf.

Remember, that a state is not liable under the ICC. This forum only has jurisdiction
over individuals.
*we are in a state of flux in this area.

~~~
A number of cases brought in Australia against China. Zhiang; Pan v Bo; Yan Xie. All
actions have failed.

Act of State Doctrine

A municipal court will not adjudicate upon the acts of a foreign state. Again, a bit of
movement here.
LAWS1023 IMMUNITY FROM JURISDICTION
MICHAEL JOHN GABRIEL
See Habib v Commonwealth.
Facts: Civil claim by Australian citizen for damages re arrest in
Pakistan in 2001 and severe abuse by US, Egyptian and Pakistani officials; Australian
officials complicit in torture, contrary to Criminal Code which extends to extra-
territorial acts, tort of misfeasance
- Claim was for civil damages for breach of the Criminal Code.
Held: Commonwealth argued that to determine the matter, the FCA had to sit in
judgment on Egypt’s actions. Thus, they could not decide the matter.
BUT
› CJ Black, Jagot J: act of state doctrine does not apply re grave breaches of
international human rights law
› Perram J: application of act of state doctrine not consistent with Constitutional norms
in circumstances
› Court did not consider question of immunity directly, but indicated immunity would
continue to apply along lines of Jones etc.

Germany v Italy
Facts: as in Ferrini case, the Italian courts have been rejecting claims for immunity by
Germany as successor to the Nazi state. Italians forced into labour camps during
WW2.
- Successful claims were satisfied against German assets.
- Now going before ICJ. Germany is arguing that Italy is BOUND to give
immunity.
- Currently pending.

Hicks v Ruddock
Facts: brought a case for habeus corpus. Hicks argued that Australia was OBLIGED
to exercise its diplomatic protection rights to secure the release of Hicks.
Held: Act of state doctrine should not prevent liability for actions of govt breaching
peremptory norms.

Arrest Warrant Case

Facts: arrest warrant against the SERVING Foreign Minister. At the time of issue, the
man was a serving minister.
- Would it be different if it were not a serving minister, or if he were not a foreign
minister? Not discussed by the ICJ.
Held: customary law covers immunity of foreign ministers. Belgium had to grant
immunity.
To not grant immunity would have a chilling effect on travel.

Re Moffaz - extended immunity to a serving minister of defence. Ministers for sports

etc do not seem to be covered.

Re Bo Xilai - functions of minister for trade similar to foreign minister => covered by
immunity.
LAWS1023 IMMUNITY FROM JURISDICTION
MICHAEL JOHN GABRIEL