UNIT 6: IMMUNITIES

FROM NATIONAL
JURISDICTION

Miss E.
Siangandu

INTRODUCTION
A) Sovereign (State) Immunity
Origins of the doctrine of state
immunity
Par in parem non habet imperium
An equal does not possess
authority over an equal)
At an Interl level all sovereigns are
considered equal & independent.

SCHOONER EXCHANGE V
MCFADDEN 7 CRANCH 116 (1812)
U.S SUPREME COURT
A French naval Vessel put into
Philadelphia for repairs after a storm.
The libellants sought possession of the
vessel
Claiming it was in reality the schooner
Exchange, an American ship which they
owned & which had been seized by
France on high seas in 1810 following
Napoleonic orders.
Crt ruled that vessel in question was
excepted from United States

VESSEL IN QUESTION WAS

EXCEPTED FROM UNITED STATES
JURISDICTION;
Jurisdiction of a nation within its own
territory is exclusive and absolute
When vessel had put into Philadelphia
Vessel/ France knew that it had
entered foreign territory.
Permission to enter foreign territory
was requested & granted (express
licence)

French naval was confi dent that the

immunities belonging to France as an
independent sovereign nation would be
extended to the vessel therefore US
could not and exercise jurisdiction over
it.
This would constitute an impingement
on the doctrine of state immunity.

IMMUNITY AS A BAR TO
JURISDICTION

The municipal court in

question possess jurisdiction
but it is barred from
exercising it .

ABSOLUTE & RESTRICTIVE

THEORIES OF IMMUNITY
Traditional doctrine of state immunity was
absolute in that immunity attached to all
actions of foreign states.
During 19 t h century raise of industrialisation
states become involved in more commercial
activities leading to the development of
restrictive immunity.
Today doctrine of absolute immunity only
applies to heads of state
& extended members of their family that form
part of the household.

GENERAL RULE
Principle basis for jurisdiction is
territorial.
state has authority over people, things &
activities within own territory.
However Interl law recognises that there
are certain people, things & activities
entitled to immunity from the
enforcement of local law.
Immunity from enforcement
Immunity is not from the law itself.

BENEFICIARIES OF IMMUNITIES
FROM NATIONAL JURISDICTION -I
Foreign states & heads of foreign states
& diplomats
Armed forces of foreign states
Diplomatic representatives & consuls of
foreign states
International Organisations

HEADS OF FOREIGN STATES

Tatchell v. Mugabe (2004) unreported case
Application for the arrest warrant of
president Mugabe, head of state of
Zimbabwe was refused.
Judge workman held:
International customary law provides
absolute immunity to any Head of state
Note this is in relation to prosecution in
national courts.

ARREST WARRANT CASE DEMOCRATIC

REPUBLIC OF THE CONGO V BELGIUM ICJ
REP 2002 P. 3
Current Head of states may not have
immunity from prosecution before
international tribunals i.e. ICC.
An international arrest warrant was issued in
absentia by a Belgian Judge for Abdulaye
Ndombasi of DRC
A charged with off ences amounting to grave
breaches of speeches which incited racial
hatred & led to murder & executions.
A was not in Belgium when warrant was
issued.

ARREST WARRANT CASE

Warrant was circulated in most states included
DRC
When arrest was issued when A was DRC foreign
Aff airs minister
DRA made an application against claiming
Belgium lacked jurisdiction in interl law to issue
a warrant because A had diplomatic immunity by
virtue of being a foreign Aff airs minister
Crt upheld DRC immunity claim by 13 votes to 3.

COURTS REASONING
It is established in IL & diplomatic & consular
agents that offi cers holding certain posts
such as Head of States, Head of government
& Minister of Foreign aff airs shall enjoy
immunities from jurisdiction in other states
both for civil & criminal.
Immunities is not granted for personal benefi t
But to ensure eff ective performance of their
functions of behalf of the state.
Case concerned a current Foreign Aff airs
minister contrast to Pinochet.

Whilst current & former Heads of states (HOS) or

senior govt. offi cers such as foreign Aff airs
minister may have personal or functional
immunity from prosecution in domestic Crts
Such person do not have immunity from
prosecution before the ICC or other interl
tribunals
i.e prosecution of President Milosevic before ICTY
see Milosevic (IT-01-54) Kosovo, Croatia & Bosnia
ICC issued an arrest warrant against current
Sudanese President Al-Basir for crimes in Darfur.

R V BOW STREET METROPOLITAN

STIPENDIARY MAGISTRATES, EX PARTE
PINOCHET [1999] 2 ALL ER 97.
Pinochet overthrew Chilean president
Allende
Pinochet become HOS of Chile until
1990 when he resigned.
1998 whilst visiting UK for medical
treatment
Spain requested for extradition of
Pinochet so he could face charges of
torture & conspiracy to torture.

PINOCHET COURT

Former HOS has limited

functional immunity (ratione
materiae) from prosecution.
Case also confirmed that
current HOS have complete
immunity from criminal
prosecution. *
Read the Pinochet decision.

B. DIPLOMATIC IMMUNITY
Vienna Convection on Diplomatic
Relations 1961 (VCDR)
Oldest principle of International law.
Mixture of codifi cation of customary
interl law & progressive development.
Entered into force April 1964.
No right to diplomatic relations
Relations exist based on consent.

THEORIES OF DIPLOMATIC
IMMUNITY
Extra Territorial - Justification
diplomats are an extinction of a
state where they come from.
Thus Homes & offi ces of diplomatic
staff considered as outside the
country.

REPRESENTATIONAL

Diplomats personifies the

person that has sovereign
immunity
spill over immunity from
sovereign state to person

FUNCTIONAL
Functional model is incorporated in the preamble
to the Vienna Convention 1961.
Realising that the purpose of such privileges and
immunities is not to benefi t individuals but to
ensure the effi cient performance of the functions
of diplomatic missions as representing states.
Immunity is required to allow diplomats to
perform duties that have to be performed on
behalf of states
privileges & immunities attached to diplomats
are necessary to enable them perform their
diplomatic functions.

VCDR 1961
Establishment of diplomatic relations which has to be
done by mutual consent - Article 2 -VCDR
Functions of diplomatic mission article 3
1. Representation - representing the sending state;
2. Protection sending states interests & its nationals
in the receiving state.
3. Negotiation negotiating with the receiving state;
4. Intelligence gathering in the receiving state, so
long as this is done in accordance with the law &;
5. Promoting friendly relations between the sending
and the receiving state and developing their
economic, cultural and scientifi c relations.

VCDR 1961
Art 8- members of diplomatic staff must
be the nationality of sending state
Persons of the receiving states
nationality may not be appointed
except with consent.
Receiving state may a member
Or may decide to recall them
No need for explanation article 9.

 Limits to size of a diplomatic mission imposed

by receiving state art 11 VC
Inviolability of diplomatic mission article 22
VC
Premises is Sacred, agents of receiving states
may not enter except with consent.
Receiving state under a duty to protect the
premises of the mission.
Inviolability of furnishings, documents, etc.
art 24 VC

 Provisions of facilities art 25 VC

Receiving state must accord full
facilities for the performance of the
purposes of the mission.
U.S. diplomatic and consular staff
in Tehran (Iran Hostages Case)
[1980] ICJ Rep 3

U.S. DIPLOMATIC AND CONSULAR

STAFF IN TEHRAN (IRAN HOSTAGES)
CASE [1980] ICJ REP 3
Nov 4, 1979 hundreds of Iranian students &
other demonstrators took possession of the
US Embassy in Tehran by force.
Were protesting against U.S s action in
granting admission for medical treatment to
U.S of a ousted shah of Iran
Iranian security never opposed the
demonstrators
Demonstrators occupied the premises
Seized archives & documents
Continued to hold 52 U.S. nationals.

IRAN HOSTAGES CASE

Crt ruled Iran had violated obligations owed to
U.S under international treaties
Iran was ordered to release the hostages
& return the premises, documents etc to U.S
Iran was under an obligation to make
reparations.
Iran declined to participate in proceeding
Therefore did not comply with crts judgement
Hostages were fi nally released in January
1981 as a result of a settlement with U.S.

VIENNA CONVENTION ON
DIPLOMATIC RELATIONS
Inviolability of Diplomatic Bag: art 27 VC
Receiving state under an obligation to allow &
protect freedom of communication for mission
& states that the offi cial correspondence of
the mission shall be inviolable.
Diplomatic bag shall not be opened or
detained (Paragraph 3 ).

INVIOLABILITY OF DIPLOMATIC BAG:

ART 27 VC CONT.
No indication as to what constitutes a
diplomatic bag
Practice it ranges small packages to
collection of crates.
Allegations of use of Dip Bags to smuggle
drugs & weapons.
In 1964 a crate claiming to be an Egyptian
Dip Bag was opened at Rome airport & inside
was found a bound & drugged Israeli.

UMARU DIKKO INCIDENT (1984)

In 1984 former Nigerian minister was kidnapped in
London & placed in a crate.
Crate was taken to Stansted airport by a Nigerian
diplomat
But since crate did not contain any external
diplomatic markings
It was opened & Mr Dikko was released.
General rule/custom states cannot protest when their
Dip bag are opened to reveal weapons, drugs or any
other prohibited items.
Custom a dip bag should only be opened when there
is 100 per cent certainty of fi nding prohibited items.

VIENNA CONVENTION 1961 CONT

Inviolability of diplomatic agents art 29 VC
Cannot be arrested or detained
& are to be treated with respect.
Art 31 - Diplomatic agents enjoy criminal,
[civil] & administrative immunity except if
agent is acting in private capacity
Meaning of diplomatic agent article 1(3) VC
enjoy absolute immunity which applies to
family (household).
Immunity can be waived by sending state
art 32 VC
Local law will apply.

ART 37 - PRIVILEGES AND IMMUNITY ENJOYED

BY FAMILY MEMBERS
SERVICE STAFF
Only have immunity in relation to their duty.
Note diff erences between immunity of diplomatic
agents & service staff .
Family member & service staff shall enjoy immunities
if they are not nationals or permanent residents in
receiving state
Immunity from civil & administrative jurisdiction of
receiving state does not extend to acts performed
outside the scope of their duties.
Implies that possible
the them to be detained or arrested unlike
diplomatic agents.
[Note arts 29 applies to diplomatic agents to 35]

ZAMBIA S APPROACH: DIPLOMATIC

IMMUNITIES AND PRIVILEGES ACT
(CAP 20)
Act which gives eff ect to the Vienna
Convention on Diplomatic Relations;
to provide for the immunities, privileges
and capacities of certain international
organisations and persons,
representatives of other States attending
international conferences
and of consular offi cers and certain other
persons
[4th June, 1965]

DIPLOMATIC IMMUNITIES AND

PRIVILEGES ACT (CAP 20)
S13 (a) immunities extends to children under the age
of eighteen years of a person so entitled
Ist SCHEDULE - (Section 3)
ARTICLES OF THE VIENNA CONVENTION HAVING THE
FORCE OF LAW IN ZAMBIA
Article 1, 11, 22,23,24, 27,28, 29 39.
Ist SCHEDULE
2 n d SCHEDULE - INTERNATIONAL ORGANISATIONS AND
PERSONS all sorts of organisations included.

READINGS/REFERENCES
Read;
Arrest warrant Case Democratic republic of the
Congo v Belgium I.C.J Rep 2002 p. 3
Ex Parte Pinochet [1999] 2 All ER 97
Harris Chapter 6
Brownlie Chapters 16, 17.
The Vienna convention on Diplomatic relations 1961.

TUTORIAL 5/6 JURISDICTION

Macho Bizzaro is the former president of Fablakistan.
During his presidency it is alleged he directed his
security forces to detain, torture and forced to
disappear more than fi ve hundred political opponents.
After handing over the presidency to his son, Bizzaro
decides to take a holiday in Livingstone, in Zambia. A
group of Fablakistani refugees in Zambia learn of
Bizzaros intended visit and seek your advice on
whether he could be prosecuted under Zambia law.
Advise the refugees