Jurisdictional Immunities

AuthorJohn H. Currie
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.
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).

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT