PUBLIC

INTERNATIONAL LAW
Part IV
Overview of Outline
2
Part 1: Basics of international law
1. Introduction: history and nature of international law
2. Characteristics of international law
3. Sources
4. Relationship between international law and municipal
law

Part 2
1. International legal personality (subjects)
2. Jurisdiction
3. Territory
4. Recognition of state and government
Part III
3
Part 3
1. State responsibility

Part 4
1. Immunities
2. Law of treaties
3. Peaceful settlement of disputes

Part III
IMMUNITIES
Introduction
Immunities
5
Each State has absolute sovereignty within its
territory
To implement laws,
To enforce those laws upon anyone/anything
In international law, each state is, in principle,
equal and none superior to another
Thus, theoretically, it would be difficult for the
courts of one state to bring an action against
another state
The concept of immunities is derived from the
close relation between sovereign states
Immunities
6
A foreign sovereign state is entitled to certain
immunities from the exercise of jurisdiction
Immunity is based, on the first instance, on the
identity of the litigant (ratio personae)
Whether or not the person has immunity can
depend on the substance of what has occurred
(ratio materiae)
Immunities can be divided into two categories:
State/sovereign immunity
Diplomatic and consular immunity
State Immunity
7
Introduction
Immunities
8
Under international law, a foreign sovereign
state is entitled to certain immunities from the
exercise of jurisdiction
As a State has no authority over another State,
which is of equal status
Immunity means that the court is not permitted
to exercise its jurisdiction
Under international law, a foreign sovereign
state is entitled to certain immunities from the
exercise of jurisdiction
Ex-parte Pinochet (No.3)
Immunities
9
Lord Browne-Wilkinson:

It is a basic principle of international law that one
sovereign state (the forum state) does not
adjudicate on the conduct of a foreign state. The
foreign state is entitled to procedural immunity
from the processes of the forum state. This
immunity extends to both criminal and civil liability.
The Schooner Exchange v
McFaddon
(1812) 7 Cranch 116
Immunities
10
P claimed ownership of a ship of the French
navy recently put into port. The US Supreme
Court dismissed the petition on the ground of
French state immunity, stating that there was a
perfect equality and absolute independence
of sovereigns.

This meant that one sovereign could not be
amenable to the territorial jurisdiction of
another.
Immunities
11
There are two types of immunity granted:
Absolute
Restrictive
Absolute Immunity (i)
Introduction
Immunities
13
Absolute immunity means being immune
absolutely
This is an old concept
Parlemenet Belge case:
Court of Appeal stated that every state declines
to exercise by means of its courts any of its
territorial jurisdiction over the person of any
sovereign or ambassador of any other state, or
over the public property of any state which is
destined for public use though such sovereign,
ambassador or property be within its jurisdiction
Immunities 14
Necessary to decide what is a foreign state
Duff Development Company v Kelantan [1924]
AC 797
Kelantan was a state under British protection,
whereby its internal and external policies were
subject to British direction. However, UK
government issued an executive certificate which
stipulated that Kelantan was an independent state
that the Crown did not exercise nor claimed any
rights of sovereignty/jurisdiction over it.
Thus, Kelantan entitled to sovereign immunity from
the jurisdiction of English courts
Restrictive Immunity (ii)
Introduction
Immunities
16
Absolute immunity became increasingly
unpopular over time
Subjects of international law increased
Began to adhere to restrictive immunity i.e.
only have immunity for certain acts:
Acts jure imperii
Acts which the state is immune
Acts jure gestionis
Commercial acts in which the state is subjected to the
jurisdiction of the territorial sovereign
Immunities
17
Several types of tests used to determine
whether it is jure imperii or jure gestionis:

1. Purpose of the act
2. Nature of the act
3. Subject matter
4. Two-stage test: a contextual approach
(a) Purpose of the Act
Immunities
18
Whether the purpose of the act is for the State
(done in a sovereign capacity), or can it be
categorised as a commercial venture (done in
a private capacity)?
Eg: Contract for cement
To build an army barracks (act jure imperii)
Equipping states armed forced forces
To build a new office block
Distinction based on this aspect criticsed
Victory Transport Inc v Comisaria General De
Abastecimientos y Transpertos 35 ILR 110 (1963)
Immunities
19
The purpose test is unsatisfactory because all
the acts of a sovereign can be said to have a
public purpose of some sort.

It was also pointed out that a state itself has no
private needs because it always acts for the
benefit of the country as it sees it.
(b) Nature of the Act
Immunities
20
Whether the act in question is of its nature an
essentially commercial transaction
This appears to be the predominant approach
UN Convention on Jurisdictional Immunities of
States and Their Property (2004)
Eg: contract for cement is a commercial
transaction
jure imperii
Even though the purpose was for the army the
purpose is irrelevant

Trendtex Trading Corp v Central Bank of
Nigeria [1977] 1 All ER 881
Immunities
21
Court of Appeal:

Purpose of a States act was immaterial in
deciding whether it was jure imperii or jure
gestionis. It was enough if the transaction itself
was of a commercial type; such as a contract
for the supply of goods or services.
Victory Transport
Immunities
22
Approach criticised as some contracts, though
are prima facie commercial transactions, can
only be made by states: such as the purchase
of battleships. Thus, this test does not reflect
the exclusive sovereign nature of the
transaction.
(c) Subject matter
Immunities
23
To look at different types of act and classify
them according to their subject matter
Thus, administrative acts are juri imperii,
irrespective of their purpose or manner (eg
contract)
To provide a list so that court need not decide
on the nature of transaction or evaluate it
Examples of statutes:
State Immunity Act 1978 (UK)
Foreign Sovereign Immunities Act 1976 (USA)
(i) State Immunity Act 1978 (UK)
Immunities
24
Section 1: general immunity
Exceptions:
S.2: submitted to jurisdiction
S.3: commercial transactions and contracts in UK
S.4: contracts of employment
S.5: personal injuries and damages to property
S.6: ownership, possession and use of property
S.7: patents, trade-marks etc
etc
(ii) Foreign Sovereign Immunities Act 1976
(USA)
Immunities
25
Argentine Republic v Amerada Hess Shopping Corp,
488 U.S. 428 (1989)
Supreme Court: the Foreign Sovereign Immunities Act
provides the sole basis for obtaining jurisdiction over a
foreign state.
S.1604: Subject to existing international agreements
to which the United States is a party, a foreign state
shall have immunity except as provided in sections
1605 - 1607
S.1605: General exceptions
S.1605A: Terrorism an exception
S.1606: Extent of liability
S.1607: Counterclaims
Immunities
26
Section 1605: General exceptions to the
jurisdictional immunity of a foreign state
SOME examples:
Foreign state waived its immunity
Action based upon a commercial activity which
has links to the United States
Rights in property taken in violation of
international law is an issue
(d) Two-stage test
Immunities
27
The House of Lords in I Congreso del Partido
developed a two state test
Were the acts private acts or acts done by
virtue of government authority?
Court to look at whole case
Both the initial transaction between the parties
and the act that gave rise to the dispute
To be jure gestionis, both of these acts had to
be private law acts

Immunities
28
The two stage test:

1. Was the initial act between the parties a
private act as could be done by a citizen, and
2. Was the act which caused the dispute also a
private act as could be done by a citizen?
I Congresa
Immunities
29
Two ships: The Marble Islands and The Playa
Larga were carrying sugar to Chile on behalf
of Cubacuzar, a Cuban State enterprise.

After a coup in Chile, The Playa Larga (owned
by Cuba) was ordered to return to Cuba with
most of her sugar unloaded and The Marble
Islands (chartered to Cuba) was ordered to
Vietnam where the sugar was sold.

P owners of the sugar.
Immunities
30
The conclusion which emerges is that in
considering, under the restrictive theory, whether
state immunity should be granted or not, the court
must consider the whole context in which the claim
against the state is made, with a view to deciding
whether the relevant act(s) upon which the claim is
based, should, in that context, be considered fairly
within an area of activity, trading or commercial, or
otherwise of a private law character, in which the
state has chosen to engage, or whether the relevant
act(s) should be considered as having been done
outside that area, and within the sphere of
governmental or sovereign activity.
Immunities
31
Initial act: contract for the supply of sugar
Clearly commercial
Could have been done by an individual

Second act: diversion of the ships and the
discharge of the cargo to third parties
The cause of the breach appeared to be an
exercise of sovereign authority
The Playa Larga
The Marble Islands

Immunities
32
Its not always clear
The characterisation of an act as jure gestionis
or jure imperii will depend on
The perception of the issue at hand by the courts
The appropriate test:
It is not just that the purpose or motive of the act
is to serve the purposes of the state, but that the
act is of its own character a governmental act, as
opposed to an act which any private citizen can
perform
(Lord Wilberforce)
(i) The Playa Larga
Immunities
33
Owned by Cuban government
Government had acted as owner of the ship,
not as governmental authority
Act was one that any owner exercising normal
powers of ownership could have achieved
Thus, a private law act

(ii) The Marble Islands
Immunities
34
Not owned by the Cuban state at the relevant
time
trading enterprise not entitled to immunity
When on the high seas, taken over by the
Cuban government
Ordered to North Vietnam
Cargo donated to the people of the country
Act not done as owner, but in the exercise of
sovereign authority
But the act of discharging the cargo: private
law act
Immunities
35
Majority decision
Cuban government acted in the context of a
private owner discharging and disposing of the
cargo in North Vietnam
Was not acting in the exercise of sovereign
powers
Done in reliance upon private law rights
Minority decision
Government taking control of the ship and
directing it and its cargo should have been the
determining factor
Was done as a deliberate matter of state policy
Immunities
36
As long as one aspect is of sovereign nature,
then immunity can be claimed
Both acts must be of private law acts for it to
be jure gestionis
Diplomatic Immunity
37
Introduction
Immunities
38
Immunity that is personal in nature (ratione
personae)
Diplomatic immunity is essential for the official
representatives of a foreign state to carry on
his official duties without hindrance
Immunity arises particularly and most strongly
in the case of heads of state
Governmental officials?
Ministers?
Civil servants?
Immunities
39
Diplomatic relations traditionally conducted
through a medium of ambassadors and their
staff
Office of consul established and expanded with
the growth of trade and commerce
Consuls represent their state in administrative
ways e.g. issuing visas, passports, assisting
nationals (finding lawyers etc)
There is no right under international law to
diplomatic relations
Exist by virtue of mutual consent
Immunities 40
The rules of diplomatic law, in short, constitute a
self-contained regime, which on the one hand, lays
down the receiving states obligations regarding the
facilities, privileges and immunities to be accorded
to diplomatic missions and, on the other, foresees
their possible abuse by members of the mission and
specifies the means at the disposal of the receiving
state to counter any such abuse.

US Diplomatic and Consular Staff in Tehsran case
ICJ Reports, 1980 p.3; 61 ILR p.504
Immunities 41
Two main multilateral conventions
Vienna Convention on Diplomatic Relations 1961
Vienna Convention on Consular Relations 1963

Malaysia:
Diplomatic Privileges (Vienna Convention) Act
1966 (Act 636)
Articles 1, 22 24, 27 40
Consular Relations (Vienna Convention) Act 1999
(Act 595)
Immunities 42
This immunity enjoyed by a head of state in
power and an ambassador in post is a complete
immunity attaching to the person of state or
ambassador and rendering him immune from all
actions or prosecutions whether or not they
relate to matters done for the benefit of the
state
Lord Browne-Wilkinson
Ex parte Pinochet (No.3)
Immunities to the person
Immunities
43
Several categories of persons who may enjoy
some or all of the immunities
Head of the mission
Members of diplomatic staff
Members of the administrative and technical staff
Members of service
Private servant
The higher the category, the greater the
immunity
Immunities 44
Members of the mission
45
Introduction
Immunities
46
Members of the mission are the head of the
mission and members of the staff of the
mission
Members of the staff of the mission are the
members of the diplomatic staff, the
administrative and technical staff and the
service staff of the mission
Members of the diplomatic staff are the
members of the staff of the mission having
diplomatic rank
Diplomatic agent is the head of the mission
OR a member of the diplomatic staff of the
mission
Immunities 47
Members of the
Mission
Head of the
mission
Staff of the
mission
Members of the
diplomatic staff
Members of the
staff having
diplomatic rank
Administrative
and technical
staff
Service staff
Head of Mission
48
Introduction
Immunities
49
Article 1 : the person charged by the sending
State with the duty of acting in that capacity
Head of mission divided into 3 classes (Article 14
VN)
Ambassadors / nuncios accredited to heads of state
(equivalent rank)
Envoys / Ministers / internuncios accredited to heads
of state
Charges daffaires accredited to ministers of foreign
affairs
It is customary for a named individual to be in
charge of a diplomatic mission
Family members?
Immunities
50
Article 37: members that form part of his
household can enjoy immunity
In UK: spouse, children who are minors
and/or children above 18 who are still
schooling, parent that is not working.
Article 37
Immunities
51
1. The members of the family of a diplomatic
agent forming part of his household shall, if
they are not nationals of the receiving State,
enjoy the privileges and immunities specified
in Articles 29 to 36.
Immunities 52
1. Article 23: head of the mission exempt from
dues and taxes of mission premises
2. Article 29 : person is inviolable
3. Article 30 : private residence, papers,
correspondence has same inviolability as
premises of mission
4. Article 31: criminal (all) and civil (exceptions)
5. Article 32: waiver
6. Article 33: exempt from social security
provisions
7. Articles 34, 35, 36, 38

Article 23
Immunities
53
1. The head of the mission shall be exempt
from all national, regional or municipal dues
and taxes in respect of the premises of the
mission, whether owned or leased, other than
such as represent payment for specific
services rendered.
2. The exemption from taxation shall not
apply to [those] payable under the law of
the receiving State by persons contracting
with the sending State or the head of the
mission.
Article 29
Immunities
54
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 or dignity.
Article 30
Immunities
55
1. The private residence of a diplomatic agent
shall enjoy the same inviolability and
protection as the premises of the mission
2. His papers, correspondence and, except as
provided in paragraph 3 of Article 31, his
property, shall likewise enjoy inviolability.
Article 31
56
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the
receiving State. He shall also enjoy immunity from its civil and administrative
jurisdiction, except in the case of
a) a real action relation to private immovable property situated in the territory of the
receiving State, unless he holds it on behalf of the sending State for the purpose of
the mission;
b) An action relating to succession in which the diplomatic agent is involved as
executor, administrator or legatee as a private person and not on behalf of the
sending State;
c) An action relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving State outside his official functions.
2. A diplomatic agent is not obliged to give evidence as a witness
3. No measures of execution may be taken in respect of a diplomatic agent
except in the cases coming under subparagraphs (a), (b) and (c) of paragraph
1 of this Article, and provided that the measures concerned can be taken
without infringing the inviolability of his person or of his residence
4. The immunity of a diplomatic agent from the jurisdiction of the receiving state
does not exempt him from the jurisdiction of the sending State.
Article 38
Immunities
57
1. Except insofar as additional privileges and
immunities may be granted by the receiving State, a
diplomatic agent who is a national of or permanently
resident in that State shall enjoy only immunity from
jurisdiction, and inviolability, in respect of official acts
performed in the exercise of his functions
2. Other members of the staff of the mission and
private servants who are nationals of or permanently
resident in the receiving State shall enjoy privileges
and immunities only to the extent admitted by the
receiving State. However, the receiving State must
exercise its jurisdiction over those persons in such a
manner as not to interfere unduly with the
performance of the functions of the msision.
Members of the service staff /
private servant
58
Introduction
Immunities
59
g) the members of the service staff are the
members of the staff of the mission, in the
domestic service of the mission;

h) a private servant is a person who is in the
domestic service of a member of the mission
and who is not an employee of the sending
State;
(i) Service staff
60
Article 37
Immunities
61
3. Members of the service staff of the mission
who are not nationals of or permanently
resident in the receiving State shall enjoy
immunity in respect of acts performed in the
course of their duties, exemption from dues
and taxes and on the emoluments they
receive by reason of their employment and
the exemption contained in Article 33. [social
security]
Private servant 62
Article 37
Immunities
63
4. Private servants of members of the mission
shall, if they are not nationals of or permanently
resident in the receiving State,
be exempt from dues and taxes on the
emoluments they receive by reason of their
employment.
In other respects, they may enjoy privileges and
immunities only to the extent admitted by the
receiving State.
However, the receiving State must exercise its
jurisdiction over those persons in such a manner
as not to interfere unduly with the performance of
the functions of the mission.
Article 33
Immunities
64
1. shall with respect to services rendered for the
sending State be exempt from social security
provisions
2. The exemption provided shall apply to private
servants who are in the sole employ of a
diplomatic agent, on condition:
a. that they are not nationals of or permanently
resident in the receiving State; and
b. that they are covered by the social security
provisions which may be in force in the sending
State or a third State.
Article 38
Immunities
65
1. Except insofar as additional privileges and
immunities may be granted by the receiving
State shall enjoy only immunity from
jurisdiction, and inviolability, in respect of official
acts performed in the exercise of his functions
2. private servants who are nationals of or
permanently resident in the receiving State shall
enjoy privileges and immunities only to the
extent admitted by the receiving State. However,
the receiving State must exercise its jurisdiction
over those persons in such a manner as not to
interfere unduly with the performance of the
functions of the mission.
Premises of the mission
66
Introduction
Immunities
67
Includes:
Premises of the mission (embassy) are inviolable
Transport of the head of mission
Archives and documents
Private residence of diplomatic staff
Requires permission
Receiving state under a duty to protect the
mission

Article 22
Immunities
68
1. Premises inviolable
May not enter except with the consent of the head of
the mission
2. Special duty to take steps to
protect premises against any intrusion or damage
prevent any disturbance of the peace of the mission
or impairment of its dignity
3. Immunity
Premises, furnishings and other property thereon
and the means of transport
Immune from search, requisition, attachment or execution
Article 24
Immunities
69
Article 24
Archives and documents of mission inviolable
Anytime, anywhere
Article 27
1. Permit and protect free communication for
official purposes
2. Official correspondence of the mission inviolable

Diplomatic Bag
70
Introduction
Immunities
71
Article 27
Freedom of communication
May contain only diplomatic documents or
articles intended for official use
Inspection can be done but under strict
guidelines
Request permission
Presence of an official of the mission
Article 27
Immunities
72
3. Diplomatic bag shall not be opened or
detained.

4. The packages constituting the diplomatic bag
must bear visible external marks of their
character and may contain only diplomatic
documents or articles intended for official use
Immunities
73
Need for balance is important
On the one hand, missions require a
confidential means of communication
On the other hand, need to guard against
abuse
Dikko incident on 5 July 1984 Nigerian
minister kidnapped in London, placed in a crate
to be flown to Nigeria
Opened at Stansted Airport

Issues of Abuse?
74
Introduction
Immunities
75
Art.41
Duty of all persons enjoying immunity to
respect the laws of the receiving state
If abused, the receiving state can request that
the immunity is waived (Art.32)
Only the sending State can waive the
immunity, and not the diplomat/person himself
Article 32
Immunities
76
1. The immunity from jurisdiction of diplomatic agents
and of persons enjoying immunity under Article 37
may be waived by the sending State.
2. The waiver must always be express.
3. The initiation of proceedings by a diplomatic agent or
by a person enjoying immunity from jurisdiction
under Article 37 shall preclude him from invoking
immunity from jurisdiction in respect of any counter-
claim directly connected with the principal claim.
4. Waiver of immunity from jurisdiction in respect of civil
or administrative proceedings shall not be held to
imply waiver of immunity in respect of the execution
of the judgment, for which a separate waiver shall be
necessary.
Immunities
77
The receiving state can declare a diplomat
persona non grata
Sending state must recall the
individual/terminate his functions
Power can be used at any time without
reasons being given
END