Jurisdictional Immunities

• Author: John H. Currie
• Pages: 363-411

363

CHA PTER 9

JURISDICTIONAL

IMMUNITIES

A. INTRODUCTION

As seen in the preceding chapter, the essentially permissive approach

taken in international law to questions of prescriptive jurisdiction en-

counters limits when one state’s exercise of such jurisdiction trespasses

upon the jurisdictional domain of another. This is a consequence of the

existence in international law of multiple sovereigns, each with a legal

duty to respect one another’s sovereignty. As we have seen, one general

manifestation of this duty is the broad jurisdictional limit imposed on

states not to intervene in one another’s domestic affairs. International

law has, however, developed other, more specif‌ic, “blocking” rules that

prohibit certain exercises of jurisdiction by states, even within their

own territory, when the effect of such an exercise of jurisdiction would

be inconsistent with the sovereign equality of other states. Such rules,

because they have the effect of ousting jurisdiction in circumstances

in which it would otherwise exist (for example, on the basis of the ter-

ritorial principle, or one of the other principles reviewed in Chapter 8

above) are known as “jurisdictional immunities.”

The two most important categories of jurisdictional immunity are

state immunity, on the one hand, and diplomatic and consular im-

munities, on the other. While both categories spring from a common

underlying concern to preserve respect for the sovereign equality of

states, we shall see that each is distinct in its historical development,

functional objectives, and scope.

PUBLIC INTERNATIONA L LAW364

B. STATE IMMUNITY

1) Nature, Basis, and Scope of State Immunity

a) Nature of State Immunity

State immunity is a narrowly focused but potent immunity in that it

protects states from one another’s enforcement jurisdiction. It is usu-

ally applied to forestall or halt domestic judicial proceedings against a

foreign state. In other words, state immunity, a long-established and

universally recognized doctrine of customar y international law, essen-

tially blocks a state’s courts from exercising jurisdiction over foreign

states. This immunity extends to all phases of the judicial process, in-

cluding interlocutory or interim preservation orders as well as post-

trial execution measures and appeals. It encompasses civil and criminal

proceedings alike.

However, it is important to distinguish the domestic judicial pro-

cess of applying and enforcing domestic law from international judicial

or quasi-judicial proceedings. State immunity is only relevant in the

former context. In other words, the immunity operates with respect

to the judicial process of courts of another state, not of international

tribunal s.1

Historically, an immunity from domestic enforcement (including

adjudicative) jurisdiction attached to the person of a v isiting foreign

sovereign, as that sovereign was considered the embodiment of the for-

eign state.2 For this reason state immunity is st ill sometimes referred to

as “sovereign immunity.” So strong was the attachment of the immunity

to the person of the foreign sovereign that there remained some doubt

in international law until the mid-nineteenth century as to whether the

same immunity attached to heads of state of republics.3 With the evolu-

tion of the conception of the state as a legal and political entity separate

from the person of the monarch, however, sovereign immunity evolved

1 See Case Concer ning the Arrest Warrant of 11 April 2000 (Democratic Republic of

the Congo v. Belgium), [2002] I.C.J. Rep. 3 at para. 61 [DRC v. Belgium]; Prosecu -

tor v. Taylor, Decision on Immu nity (31 May 2004) SCSL-2003 -61, 3014-3039 at

paras. 49 –54 (S.C.S.L. App. Ch .), online: ww w.sc-sl.org /Documents/SCSL -03-

01-I-059.pdf [Prosecutor v. Taylor].

2 See J-M. Arbour & G. Pare nt, Droit international public, 5 e éd. (Cowans ville,

QC: Yvon Blais, 2006) at 332; M.N. Shaw, Internati onal Law, 5th ed. (Cambridge:

Cambridge Univer sity Press, 2003) at 621–22.

3 See, for example, United Sta tes of America v. Wagner (1867), L.R. 2 Ch. App. 582.

See also J.G. Starke & I. A. Shearer, Starke’s International L aw, 11th ed. (London:

Butterworth s, 1994) at 192.

Jurisdict ional Immunities 365

to become a general immunity enjoyed not only by monarchs, but also

by the state more generally in its various manifestations.4

It is important to note that state immunity does not imply an ab-

sence of jurisdiction per se. Rather, state immunity applies as a proced-

ural bar to the exercise of jurisdiction that otherw ise, substantively,

exists. As has been observed by the International Court of Justice (ICJ),

“jurisdiction does not imply absence of immunity, while absence of im-

munity does not imply jurisdiction.”5 The signif‌icance of this feature of

state immunity will be apparent when we consider the ability of a state

to waive its immunity from the jurisdiction of foreign courts.

b) Basis for State Immunity

The classic enunciation of both the doctrine of state immunity and

its underlying rationales is generally acknowledged to be that of the

United States’ Supreme Court in the early nineteenth century case of

The Schooner Exchange v. McFadden:

This full and absolute territoria l jurisdiction being alike the attribute

of every sovereign, and being incapable of conferr ing extraterritorial

power, would not seem to contemplate foreign sovereigns nor their

sovereign rights as it s objects. One sovereign being in no respect

amenable to another; and being bound by obligations of the highest

character not to degrade the dig nity of his nation, by placing himself

or its sovereign rights within the jur isdiction of another, can be sup-

posed to enter a foreign territory only under an expres s license, or

in the conf‌idence that the immunities belonging to his independent

sovereign station, though not expre ssly stipulated, are re served by

implication, and wi ll be extended to him.

This perfect equality and absolute independence of sovereigns,

and this common interest impelling them to mutual intercours e, and

an interch ange of good off‌ice s 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 ter ritorial juri sdiction,

which has been st ated to be the attribute of every nation.6

A number of bases for the doctrine of state immunity emerge from

this statement. The most widely acknowledged is somewhat formal: the

requirement of state immunity is said to f‌low as a necessary corollary of

the principle of the sovereign equality of states. If all states are equal in

4 See, generally, I. Brown lie, Principles of Public Intern ational Law, 6th ed. (Ox-

ford: Oxford Universit y Press, 2003) at 322.

5 DRC v. Belgium, above note 1 at para. 59.

6 The Schooner Excha nge v. McFadden, 11 U.S. 114 at 136 (1812).