CHAPTER 3 IMMUNITY
3.3 Justifications of State immunity
3.3.1 “Sovereign equality” as a justification for State immunity
State immunity is an essential corollary of the sovereignty and equality of States.628 It prevents the subjection of an independent State to proceedings in another country relating to a dispute about its exercise of governmental power.629 If the courts of one State would assume jurisdiction over the public acts of another State, the authority of the forum State to adjudicate the dispute would conflict with the principle of State equality. This idea is traditionally expressed by the maxim par in parem non habet imperium which literally means, “an equal has no power over an equal”.630
3.3.2 Immunity and “non-intervention” in the internal affairs of a State
State sovereignty and the related-notion of non-intervention in the internal affairs of a State constitute grounding principles of international law.631 As stated earlier,632 according to the principle of State sovereignty, each State is understood to have exclusive control and competence over its own territory.633 This is known as internal sovereignty.634 Thus, in order to protect the internal sovereignty of each State, the
626 Art 3(1)(2) UN Convention on Jurisdictional Immunities of States and their Property (2004).
627 Art 3(1)(a)(b) UN Convention on Jurisdictional Immunities of States and their Property (2004).
628 Forcese 2007 McGill Law Journal 133.
629 Fox State Immunity 11.
630 See 3.2.1 above. See also Knushel 2011 Northwestern Journal of International Human Rights 150; O’Donnell 2008 Boston University International Law Journal 380 and Lulu “Brief Analysis of a Few Controversial Issues in Contemporary International Criminal Law” 46.
631 Redress “Immunity v Accountability” 48.
632 See 2.4.1 above.
633 Ferreira-Snyman 2006 Fundamina 4; Redress “Immunity v Accountability” 48 and Forcese 2007 McGill Law Journal 131.
634 Redress “Immunity v Accountability” 48.
principle of non-intervention in the internal affairs of a State applies.635 This implies that each State can do whatever it pleases within its own territory and that in doing so it cannot be subject to scrutiny by other States.636 The doctrine of State immunity fulfils this function.637
3.3.3 International comity and good relations between States
Comity has been characterised as “rules of politeness, convenience, and goodwill”.638 Such rules are not rules of international law.639 For example, many States recognise that a foreign judgment may be given effect in the enforcing State (through a procedure known as exequatur) without inquiring into the factual or legal merits of the foreign judgment.640 Although this practice is prevalent among many States, however, it is based primarily on considerations of convenience, courtesy and respect between States, not a matter of a legal obligation.641 Likewise, extradition of criminals, in the absence of a treaty, is a matter of comity, not of legal obligation.642
Historically, the concept of State immunity developed as a rule of comity: “Do unto others as you would have them do to you”. In this regard, each State granted immunity to foreign States and their kings in the hope that its own sovereign would be protected when out of his country.643 Viewed from this angle, immunity may be seen as a privilege granted by way of exception to the jurisdiction which the forum State would otherwise be entitled to exercise but which it chooses not to, in order to promote comity and good relations with foreign States.644 As such, immunity is not seen so much as a matter of legal entitlement but rather as a matter of whether a local court has jurisdiction in
635 Forcese 2007 McGill Law Journal 130-131 and Redress “Immunity v Accountability” 48.
636 Redress “Immunity v Accountability” 48.
637 Brownlie Principles 325.
638 Wingfield “Conflict and the Enforcement of Foreign Judgments” 1 and Murungu Immunity of State Officials 47.
639 Murungu Immunity of State Officials 47.
640 Wingfield “Conflict and the Enforcement of Foreign Judgments” 2.
641 US Legal Date Unknown http://uslegal.com/international-law/ and Akehurst 1973 British Year Book of International Law 237.
642 Akehurst 1973 British Yearbook of International Law 215.
643 Murungu Immunity of State Officials 47. See also Lulu “Brief Analysis of a Few Controversial Issues in Contemporary International Criminal Law” 46.
644 Forcese 2007 McGill Law Journal 135: “A […] practical justification for state immunity is simple reciprocity. Were a state to ignore the dictates of state immunity, it might precipitate a like response from other states, placing its own overseas assets and officials at risk of seizure. Tit- for-tat retaliation of this sort would obviously impair international diplomacy”.
accordance with the internal laws of the forum State.645 However, although not entirely obsolete, this justification of State immunity does not provide a complete basis of States’ immunity in contemporary international law which recognises immunity not just as a rule of comity, but as a matter of a legal entitlement. This will become clearer immediately below.
3.3.4 Immunity and the dignity of States
The doctrine of immunity of a State from the jurisdiction of foreign States is also based on the principle of state dignity.646 This is the idea that it is incompatible with a state's sovereignty and dignity for it to be subject to another state's jurisdiction.647
By linking State immunity to State sovereignty and dignity, State immunity becomes not just a principle of comity in international relations but a fundamental right of States under international law.648 This right is not altered by the fact that the State’s act giving rise to the claim before the courts of foreign States is unlawful under international law.649 In Bouzari v Iran650 for example, the Ontario Superior Court of Justice dismissed a claim for damages arising from allegations of torture brought against the Islamic Republic of Iran on the basis that allowing such a claim would be inconsistent with customary international law.651 The Court stressed that “while international law may
645 Murungu Immunity of State Officials 47.
646 Brownlie Principles 326 and Murungu Immunity of State Officials 46.
647 Garnett 1999 Australian Year Book of International Law 176 and Murungu Immunity of State Officials 46.
648 Redress “Immunity v Accountability” 11. See also Bantekas and Nash International Criminal Law 165: “[A]lthough designed to enhance interstate relations and limit the reach of the receiving State’s judicial and executive machinery the concept of State immunity is not based on comity. State practice at the international level suggests that what was once an implied licence has now evolved to a legal obligation on the part of the receiving sovereign”.
649 Jia 2012 Journal of International Criminal Justice 1314-1315.
650 2002 OJ No 1624 Court File No 00-CV-201372 (1 May 2002). Accessed at http://www.ccij.ca/uploads/Bouzari-Superior%20Court%20of%20Justice.pdf [2 April 2014].
651 Bouzari v Iran 2002 OJ No 1624 Court File No 00-CV-201372 (1 May 2002) para 73:
“Therefore, the decisions of state courts, international tribunals, and state legislation do not support the conclusion that there is a general state practice which provides an exception from state immunity for acts of torture committed outside the forum state. As a result, there is no conflict between the Canadian State Immunity Act as written, with its limited exceptions, and customary international law. Indeed, the Canadian Act, in its present form, is consistent with current norms of customary international law […]Were I to accept the suggestion of the plaintiff and find such an exception, not only would I be interpreting the legislation incorrectly, but also, in Mr. Greenwood's view, putting Canada in violation of customary international law. Therefore, the action is barred by s 3 of the Act […]”
someday evolve to include a further exception for acts of torture, it does not do so now”.652
Although this view is questionable,653 it has been endorsed by the European Court of Human Rights (ECHR) in Al-Adsani v UK.654 In this case, the ECHR held that:
[N]otwithstanding the special character of the prohibition of torture in international law, the Court is unable to discern in the international instruments, judicial authorities or other materials before it any firm basis for concluding that, as a matter of international law, a State no longer enjoys immunity from civil suit in the courts of another State where acts of torture are alleged.655
Since the present study is not concerned with the immunity of States from foreign (civil) jurisdiction but rather with the immunity of States’ officials from the (criminal) jurisdiction of foreign States, we will now proceed to examine the immunities afforded to natural persons who act on behalf of the States rather than the States themselves.