(Oxford Monographs in International Law) Alebeek, Rosanne Van - The Immunity of States and Their Officials in International Criminal Law and International Human-Oxford University Press USA (2008)

OX FOR D MONOGR A PHS I N
I N T E R N AT ION A L L AW
General Editor: PROF E S S OR VAUGH A N L OW E ,
Chichele Professor of Public International Law in
the University of Oxford and Fellow of All Souls College, Oxford
The Immunity of States and Their

Officials in International
Criminal Law and International
Human Rights Law
OX FOR D MONOGR A PHS I N
I N T E R N AT ION A L L AW
The aim of this series is to publish important and original pieces of research on all aspects
of international law. Topics that are given particular prominence are those which, while
of interest to the academic lawyer, also have important bearing on issues which touch
upon the actual conduct of international relations. Nonetheless, the series is wide in
scope and includes monographs on the history and philosophical foundations of inter-
national law.
      

Jurisdiction in International Law
Cedric Ryngaert
The Fair and Equitable Treatment Standard in International
Foreign Investment Law
Ioana Tudor
Targeted Killing in International Law
Nils Melzer
Defining Terrorism in International Law
Ben Saul
Diplomatic Protection
Chittharanjan F. Amerasinghe
Human Rights and Non-Discrimination in the ‘War on Terror’
Daniel Moeckli
The Decolonization of International Law
Matthew Craven
Investment Treaty Arbitration and Public Law
Gus van Harten
International Organizations and their Exercise
of Sovereign Powers
Dan Sarooshi
Peremptory Norms in International Law
Alexander Orakhelashvili
The Immunity of States
and Their Officials in
International Criminal Law
and International Human
Rights Law
ROS A N N E VA N A L E BE E K
Assistant Professor, University of Amsterdam
1
3
Great Clarendon Street, Oxford OX2 6DP
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Published in the United States
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© R. Van Alebeek 2008
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First published 2008
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British Library Cataloguing in Publication Data
Data available
Library of Congress Cataloging in Publication Data
Alebeek, Rosanne van.
The immunity of states and their officials in international criminal law
and international human rights law / Rosanne van Alebeek.
p. cm.—(Oxford monographs in international law)
ISBN 978-0-19-923247-5
1. Immunities of foreign states. 2. Government liability (International
law) 3. State governments—Officials and employees—Legal
status, laws, etc. 4. Privileges and immunities. 5. Criminal liability
(International law) 6. Jurisdiction (International law) I. Title.
KZ4012.A44 2008
342.08'8—dc22 2007047112
Typeset by Newgen Imaging Systems (P) Ltd., Chennai, India
Printed in Great Britain
on acid-free paper by
Biddles Ltd., King’s Lynn, Norfolk
ISBN 978–0–19–923247–5
1 3 5 7 9 10 8 6 4 2
General Editor’s Preface
The immunity of States—or more accurately of those persons who are considered
the embodiment of the State, whether as sovereigns, diplomats, or some other
State agency—is generally regarded as one of the oldest and most clearly estab-
lished of all principles of international law. It is a principle that seems to enable
the State, both metaphorically and literally, to get away with murder. This care-
ful analysis of the development of the law on State immunity challenges that
general conception and offers a new rationalization of the principles governing
immunity.
Dr Van Alebeek argues for an understanding of the modern law on State
immunity that recognizes that it is not merely a survival of the ancient inviolabil-
ity of sovereigns, now made subject to certain limited qualifications.
She proposes a new view of this area of the law that fits more comfortably with
the notion that fundamental considerations of human rights, and in particular
the right to a fair trial, entail the restriction of claims to immunity.
At a time when those injured by the acts of States are more able and more will-
ing than they have been in the past to challenge States in the courts, this study
has a practical value that matches its considerable intellectual interest.
AVL
All Souls College, Oxford
October 2007
This page intentionally left blank
Acknowledgements
While working on this book I have spent many a day in the library. Several
eureka-moments were lived thanks to inspiration found in quiet reading rooms,
exploring the cases and literature that shaped the law of state immunity over the
years. I would therefore first like to express my gratitude to the Law Library of the
University of Leiden, the Oxford University Bodleian Law Library, the Library
of the Peace Palace in The Hague, and the Library of the Camera dei Deputati in
Rome, and to all the people working there.
My research has furthermore benefited greatly from the encouragement,
guidance, and critical attitude of Professor John Dugard. I owe many thanks to
him. I also thank Zsuzsanna Deen-Racsmány for her helpful comments on early
versions of parts of this book. I thank Lady Fox, Professor Schrijver, Professor
Nollkaemper, Professor Kooijmans, Professor Schermers, Professor Lammers,
and Dr van Sliedregt for their insightful comments on the PhD version of this
book that was defended in 2006 at Leiden University.
A huge thank you goes to all my friends and my family for their love and sup-
port throughout this project. In particular I thank Joop Nijssen for making life
wonderful even on the countless eurakaless days.
Rosanne Van Alebeek
November 2007
The Hague
Contents—Summary
List of Abbreviations xv
Table of Cases xix
1. Introduction 1
2. State Immunity 10
3. Functional Immunity 103
4. Personal Immunity 158
5. The Immunity of State Officials in the Light of Obligations
of Individuals under International Law 200
6. The Immunity of States and Their Officials in the Light
of the Fundamental Rights of Individuals Under International Law 301
7. Conclusion 418
Bibliography 427
Index 447
Contents—Outline
List of Abbreviations xv
Table of Cases xix
1. Introduction 1
2. State Immunity 10
1. Introduction 10
2. The Rule of Restrictive State Immunity 12
2.1 Introduction 12
2.2 Development of the Rule of Restrictive
State Immunity 14
2.2.1 Early Restrictive Tendencies 14
2.2.2 Prevalence of the Restrictive Doctrine 16
2.2.3 A Closer Look at Early Absolute Tendencies 21
2.2.3.1 The United States 21
2.2.3.2 The United Kingdom 35
2.2.4 Conclusion 46
2.3 A Poorly Articulated Theory 47
2.3.1 Explanation over Justification 47
2.3.2 Regime over Rationales 53
3. The Independence and Equality of States as Limits
on the Essential Competence of National Courts 65
3.1 Introduction 65
3.2 The Independence and Equality of States 66
3.2.1 Non-Interference in the Exercise of Sovereign Authority 66
3.2.2 Rights and Obligations under International Law 73
3.2.3 Acta Jure Imperii: A Coherent Concept After All 79
3.3 The Nature of the Law of State Immunity: A Qualitative
Difference Between the Absolute and the Restrictive Approach 83
3.3.1 The Essential Competence of National Courts 83
3.3.2 Why the Distinction between Immunity from Jurisdiction
and Lack of Essential Competence is Relevant 88
3.3.2.1 The form of coherent argument 89
3.3.2.2 The substance of coherent argument 99
3.3.2.3 Conclusion 101
4. Conclusions 101
3. Functional Immunity 103

1. Introduction 103
xii Contents—Outline
2. Which Came First—The Chicken or the Egg? State Immunity
as a Consequence of Functional Immunity Rather than
Functional Immunity as a Corollary of State Immunity 105
2.1 Kelsen’s Act of State Immunity Argument 105
2.2 Non-Personal Responsibility as an Autonomous
Principle Preceding State Immunity 106
2.2.1 Functional Immunity as the Non-Personal
Responsibility for Official Acts 107
2.2.1.1 The principle identified 107
2.2.1.2 The principle explained in terms of international
law: presumption of authority 112
2.2.1.3 Inherent limits of the presumption of authority 116
2.2.1.4 Defeat of presumption 130
2.2.1.5 Conclusion and final observations 132
2.2.2 The Application of the Law of State Immunity as a
Consequence of the Implication of the State 135
2.3 Final Observations 139
3. The Influence of the ‘Act of State’ Confusion in Contemporary
Functional Immunity Thinking on the Debate
on the Human Rights Exception 143
3.1 Introduction 143
3.2 ‘Act of State’ as ‘Act Attributable to the State’ 144
3.3 ‘Act of State’ as ‘Sovereign Act’: A Contemporary Version
of Kelsen’s Act of State Immunity Argument 147
3.4 Concluding Observation 156
4. Conclusions 157
4. Personal Immunity 158

1. Introduction 158
2. The Scope of Diplomatic and Head of State Immunity 159
2.1 Diplomatic Agents 159
2.1.1 Material Scope of the Immunity 159
2.1.2 Formal Scope of the Immunity 164
2.1.2.1 Diplomatic agents during their term of office 164
2.1.2.2 Ad hoc diplomatic missions 167
2.2 Heads of State 169
2.2.1 Material Scope of the Immunity 169
2.2.2 Formal Scope of the Immunity 182
2.2.2.1 Heads of state in office 182
2.2.2.2 Family members 184
2.2.2.3 Heads of government and ministers of
foreign affairs? 186
2.3 The Arrest Warrant Case: Obligations of Third States
under Personal Immunity Rules 195
3. Concluding Remarks 197
Contents—Outline xiii
5. The Immunity of State Officials in the Light of Obligations

of Individuals under International Law 200
1. Introduction 200
2. State of the Law Arguments 219
2.2 The Normative Hierarchy Theory: Voidance of the Rules
in View of International Criminal Law? 219
2.3 The Scope of the Immunity of State Officials in View
of Individual Responsibility for Crimes against
International Law 222
2.3.1 Functional Immunity 222
2.3.1.1 Introduction 222
2.3.1.2 An exception for crimes against international
law in spite of the rationale of the rule 223
2.3.1.3 An exception within the rationale of the rule 239
2.3.1.4 . . . That may not conclusively settle the competence
of the court 257
2.3.2 Personal Immunity 265
2.3.2.1 Customary international law 265
2.3.2.2 A critical intermezzo: Personal immunities before
international courts 275
2.3.2.3 Conventional law 293
3. Policy Arguments: The (In)Compatibility of the Rule of Personal
Immunity and the Obligation to Prosecute 295
4. Conclusions 296
6. The Immunity of States and Their Officials in the Light of the

Fundamental Rights of Individuals under International Law 301
1. Introduction 301
2. State of the Law Arguments 312
2.2 The Normative Hierarchy Theory: Voidance of the
Rule of State Immunity in View of Human Rights Law? 316
2.3 The Scope of the Rule of State Immunity in View of
Human Rights Law 320
2.3.1 A Human Rights Exception within the Rationale
of the Rule of State Immunity? 320
2.3.1.2 Bröhmer: A proposal based on the functional
sovereignty rationale 320
2.3.1.3 Caplan: A proposal based on the rationale of
collective benefit of state relations 323
2.3.1.4 A proposal based on the acta jure imperii–acta jure
gestionis distinction 326
xiv Contents—Outline
2.3.2 A Human Rights Exception in Spite of the Rationale of the
Rule of State Immunity? 339
2.3.2.2 That vain thing of rights of individuals under
international law? 340
2.3.2.3 Jus cogens rules, erga omnes obligations, and the
secondary rules of international law 342
2.3.2.4 Conventional law 359
2.4 Concluding Observations 363
3. Policy Arguments: The (In)Compatibility of Immunity
Rules and the Fundamental Rights of Individuals 365
3.2 The Right to a Fair Trial 366
3.2.1 Introduction 366
3.2.2 The Strasbourg Framework for Access to
Court Complaints 370
3.2.2.2 Applicability 370
3.2.2.3 Compliance 377
3.2.3 McElhinney v Ireland, Al-Adsani v United Kingdom,
and Fogarty v United Kingdom 381
3.2.4 The Right of Access to Court and State Immunity
and Personal Immunity: A Critical Discussion of the
McElhinney, Al-Adsani and Fogarty Cases 390
3.2.5 Conclusions and Final Observations 406
3.3 The Right to a Remedy 408
3.4 The Right to Effective Protection 410
3.5 Conclusion 413
4. Conclusions 415
7. Conclusion 418
Bibliography 427
Index 447
List of Abbreviations
AC Appeal Cases
AD Annual Digest
AEDPA Antiterrorism and Effective Death Penalty Act
AFDI Annuaire Français de Droit International
AIDI Annuaire de l’Institut de Droit International
AJIL American Journal of International Law
All ER All England Law Reports
ASDI Annuaire Suisse du Droit International
ATCA Alien Tort Claims Act
BCCI Bank for Credit and Commerce International
Bull. Cas. Bulletin des ârrets de la Cour de Cassation
BYIL British Yearbook of International Law
CB Common Bench
Ch. Chancery Division
Ch D Chancery Division 1875–90
CLR Columbia Law Review
Commonwealth Law Reports
CA Court of Appeal
Ct of Apps Court of Appeals
DC District Court
DLR Dominion Law Reports
DPA Diplomatic Privileges Act
DR Decisions and Reports
DRC Democratic Republic of the Congo
ECHR European Convention for the Protection of Human Rights and
Fundamental Freedoms
European Court of Human Rights
EComHR European Commission of Human Rights
EHRR European Human Rights Reports
EJIL European Journal of International Law
El & El Ellis & Ellis
EPO European Patent Office
FCAFC Federal Court of Australia Full Court
F It Foro Italiano
FSIA Foreign Sovereign Immunities Act
GA General Assembly of the United Nations
Giu It Giurisprudenza Italiana
HL House of Lords
HLC House of Lords Cases
HLR Harvard Law Review
IAC Iraqi Airways Company
xvi List of Abbreviations
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICJ International Court of Justice
ICLQ International and Comparative Law Quarterly
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the Former Yugoslavia
ILA International Law Association
ILC International Law Commission
ILM International Legal Materials
ILR International Law Reports
ILQ International Law Quarterly
JDI Journal du Droit International
JDIP Journal du Droit International Privé et de la Législation Comparée
JICJ Journal of International Criminal Justice
JT Journal des Tribunaux
KAC Kuwait Airways Corporation
KB King’s Bench
Ld Raym. Lord Raymond
LJIL Leiden Journal of International Law
LQR Law Quarterly Review
LR Law Reports
LR A & E Law Reports: Admiralty and Ecclesiastical
LT Law Times
NILR Netherlands International Law Review
NJ Nederlands Juristenblad
NJW Neue Juristische Wochenschrift
NStZ Neue Zeitschrift für Strafrecht
NZLR New Zealand Law Reports
P. Probate, Divorce & Admiralty Division 1891–1970
PB Pasicrisie Belge
PCA Permanent Court of Arbitration
PCIJ Permanent Court of International Justice
PD Probate, Divorce & Admiralty Division 1875–90
QB Queen’s Bench
QBD Queen’s Bench Division
RBDI Revue Belge de Droit International
RdC Recueil des Cours
RCDIP Revue Critique de Droit International Privé
RDI Rivista di Diritto Internazionale
RDILC Revue de Droit International et de Législation Comparée
RDIP Revue de Droit International Privé
RDIPP Rivista di Diritto Internazionale Privato e Processuale
RGDIP Revue Générale de Droit International Public
RIAA Reports of International Arbitral Awards
ROC Republic of China
RSDIE Revue Suisse de Droit International et Européen
List of Abbreviations xvii
SALJ South African Law Journal

SC Security Council of the United Nations
SCRA Philippine Supreme Court Reports
SCR Supreme Court of Canada Reports
SCSL Special Court for Sierra Leone
S Ct Supreme Court
SIA State Immunity Act
TC Convention Against Torture and Other Cruel, Inhuman
and Degrading Treatment or Punishment
TVPA Torture Victim Protection Act
UK United Kingdom
UN United Nations
US United States
VCCR Vienna Convention on Consular Relations
VCDR Vienna Convention on Diplomatic Relations
VJIL Virginia Journal of International Law
WLR Weekly Law Reports
YBILC Yearbook of the International Law Commission
YLJ Yale Law Journal
ZaöRV Zeitschrift für ausländisches öffentliches Recht und Völkerrecht
Table of Cases
I N T E R N AT ION A L C OU RT S
Arbitral Tribunals
Union Bridge Company Claim (United States v Great Britain) 6 RIAA 138
(Arbitral Tribunal (Great Britain – United States), 1924) . . . . . . . . . . . . . . . . . . . . . . . . . . 144
Youmans case (United States v United Mexican States) 4 RIAA 110 (US – Mexico General
Claims Commission, 1926) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
Island of Palmas (Miangas) Case (The Netherlands v United States) 2 RIAA 829
(Permanent Court of Arbitration, 1928) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .265, 277, 333
Caire case (France v United Mexican States) 5 RIAA 516 (French – Mexican Claims
Commission, 1929. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
European Commission of Human Rights

Austria v Italy (Pfunders case) (1961) 4 Yearbook on the European Convention on
Human Rights 116 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
X v Federal Republic of Germany (1963) 6 Yearbook on the European Convention on
Human Rights 520 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366
Golder v United Kingdom (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377–8
Agee v United Kingdom DR 7, 164 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370, 375
Sporrong and Lönnroth v Sweden Report (1980) available
at <http://www.echr.coe.int/echr> . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 371
Ketterich v United Kingdom 5 EHRR 465 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 372
Dyer v United Kingdom DR 39, 246 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 372, 377
Pinder v United Kingdom 7 EHRR 464 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 372
Spaans v The Netherlands DR 58, 119 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375–6, 391, 393
M & Co v FRG DR 64, 138 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
Heinz v Contracting States Also Parties to the European Patent Convention
DR 76A, 125 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
N, C, F and AG v Italy DR 84-A, 84 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378
Van der Peet v Germany appl no 26991/95 (1996), available
at <http://www.echr.coe.int/echr> . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376–7, 394–5
Lenzing v United Kingdom DR 94A, 136 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378
Waite and Kennedy v Germany Report (1997), available
at <http://www.echr.coe.int/echr> . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .374, 377, 378
Beer and Regan v Germany Report (1997), available
at <http://www.echr.coe.int/echr> . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .374, 377, 378
Waite and Kennedy v Germany Decision (1997), available
at <http://www.echr.coe.int/echr> . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378
Beer and Regan v Germany Decision (1997), available at <http://www.echr.coe.int/echr>. . . . 378
European Court of Human Rights

Neumeister v Austria Series A-8, 1 EHRR 91 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366
Golder v United Kingdom Series A-18, 1 EHRR 524 (1975) . . . . . . . . . . . . . . 366, 370, 378, 398
Ireland v United Kingdom Series A-25 2 EHRR 25 (1978). . . . . . . . . . . . . . . . . . . . . . . . 304, 306
xx Table of Cases
Ashingdane v United Kingdom Series A-93, 7 EHRR 528 (1985) . . . . . . . . . . . . . . . . . . . 370, 378
X and Y v The Netherlands Series A-91, 8 EHRR 235 (1985) . . . . . . . . . . . . . . . . . . . .199, 410–11
James v United Kingdom Series A-98, 8 EHRR 123 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 371
Lithgow and Others v United Kingdom Series A-102, 8 EHRR 329 (1986) . . . . . . . . . . . . . . . 371
H v Belgium Series A-127-B, 10 EHRR 229 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 371
Leander v Sweden Series A-116, 9 EHRR 433 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361
Soering v UK A-161, 11 EHRR 439 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408
Powell and Rayner v United Kingdom Series A-172, 12 EHRR 355 (1990) . . . . . . . . . . . . . . . 371
Fayed v United Kingdom Series A-294-B, 18 EHRR 393 (1994) . . . . . . . . . . . . . 371–2, 373, 383
Holy Monasteries v Greece Series A-301-A, 10 EHRR 9 (1995) . . . . . . . . . . . . . . . . . . . . . . . . 371
Loizidou v Turkey (Preliminary Objections) Series A-310,
20 EHRR 99 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394
McCann and Others v United Kingdom Series A-324 , 21 EHRR 97 (1995) . . . . . . . . . . . . . . 411
Aksoy v Turkey 23 EHRR 553 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409, 412
Loizidou v Turkey 23 EHRR 513 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 385
Aydin v Turkey 25 EHRR 251 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409
Assenov and Others v Bulgaria 28 EHRR 652 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409
A v United Kingom 27 EHRR 611 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 411
Kaya v Turkey 28 EHRR 1 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409, 411
Osman v United Kingdom 29 EHRR 245 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373, 379–80
Yaşa v Turkey 28 EHRR 408 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 411
Waite and Kennedy v Germany 30 EHRR 261 (1999) . . . . . . . . . . . . . . . . . . . 374, 378–9, 380–1
Beer and Regan v Germany 33 EHRR 54 (1999) . . . . . . . . . . . . . . . . . . . . . . . 374, 378–9, 380–1
Kiliç v Turkey, 2000, available at <http://www.echr.coe.int> . . . . . . . . . . . . . . . . . . . . . . . . . 412
Al-Adsani v United Kingdom 34 EHRR 273 (case no 11) (2001);
123 ILR 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 49, 90–1, 199, 305, 309, 311–12,
317–19, 369, 381–408
Bankovic v 17 European Member States of NATO (2001), available
at <http://www.echr.coe.int> . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393, 394
Cyprus v Turkey 35 EHRR 731 (case no 30) (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394
Fogarty v United Kingdom 34 EHRR 302 (case no 12) (2001);
123 ILR 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199, 309, 369, 381–408
McElhinney v Ireland 34 EHRR 322 (case no 13) (2001);
123 ILR 73 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199, 309, 369, 381–408
Z and Others v United Kingdom 34 EHRR 97 (case no 3)
(2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373, 374, 380, 383, 409
A v United Kingdom 36 EHRR 917 (case no 51) (2002) . . . . . . . . . . . . . . . . . . . 361, 375, 407–8
Kalogeropoulou a.o. v Greece and Germany (2002) available
at <http://www.echr.coe.int> . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314, 330, 397, 414
Cordova v Italy (no 1 and 2) 45 EHRR 43 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408
Ernst v Belgium 39 EHRR 35 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408
MC v Bulgaria 40 EHRR 20 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409
Siliadin v France 43 EHRR 16 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409
Markovic and others v Italy (2006) available at
<http://www.echr.coe.int>. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394
Inter-American Commission on Human Rights

Report 26/92 (EL Salvador), reprinted in 14 Human Rights Law Journal
(1993) 167 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412
Report 29/92 (Uruguay), reprinted in 14 Human Rights Law Journal (1993) 167 . . . . . . . . . 412
Report 24/92 (Argentina), reprinted in 14 Human Rights Law Journal (1993) 167 . . . . . . . . 412
Report 36/96 (Chile) (1996), OEA/Ser.L/V/II.95 Doc. 7 rev. 156 (1997) . . . . . . . . . . . . . . . 412
Table of Cases xxi
Inter-American Court of Human Rights

Velásquez Rodríguez Case Series C no 4 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412
International Court of Justice

Corfu Channel Case (United Kingdom v Albania) (Merits), ICJ Reports 1949 4 . . . . . . . . . 94, 333
Reparation for Injuries Suff ered in the Service of the United Nations (Advisory Opinion),
ICJ Reports 1949 174 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341
Asylum Case (Columbia v Peru), ICJ Reports 1950 266 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95–6
Reservations to the Convention on the Prevention and Punishment of the Crime
of Genocide (Advisory Opinion), ICJ Reports 1951 15. . . . . . . . . . . . . . . . . . . . . . . . . 304, 305
Case of the Monetary Gold Removed from Rome in 1943 (Italy v France,
United Kingdom and United States), ICJ Reports 1954 10 . . . . . . . . . . . . . . . . . . . . . . . 73, 358
South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa)
(Preliminary Objections), ICJ Reports 1962 319. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa)
(Second Phase), ICJ Reports 1966 6 . . . . . . . . . . . . . . . . . . . . . . . . . 94, 305, 306–7, 340, 363
North Sea Continental Shelf (Federal Republic of Germany v Denmark, Federal
Republic of Germany v The Netherlands) (Judgment), ICJ Reports 1969 3 . . . . . . 89, 90, 94, 96
The Barcelona Traction, Light and Power Company, Limited (Belgium v Spain)
(Second Phase), ICJ Reports 1970 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94, 307, 340
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970)
(Advisory Opinion), ICJ Reports 1971 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303, 349
Case Concerning United States Diplomatic and Consular Staff in Tehran (United States
of America v Iran) (Provisional Measures), ICJ Reports 1979 7 . . . . . . . . . . . . . . . . . . 197, 402
Case Concerning United States Diplomatic and Consular Staff in Tehran (United States
of America v Iran) (Judgment), ICJ Reports 1980 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 163, 345
Continental Shelf Case (Libyan Arab Jamahiriya v Malta) (Application to Intervene,
Judgment), ICJ Reports 1984 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States
of America) (Judgment), ICJ Reports 1984 246 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States
of America) (Jurisdiction and Admissibility), ICJ Reports 1984 169 . . . . . . . . . . . . . . . . . . 358
Case Concerning Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v United States of America) (Merits),
ICJ Reports 1986 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89, 90, 94, 305, 349
Elettronica Sicula S.p.A. (ELSI) (United States of America v Italy),
ICJ Reports 1989 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295, 362
Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections),
ICJ Reports 1992 240 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358
East Timor (Portugal v Australia) (Judgment), ICJ Reports 1995 90 . . . . . . . . . . . . . . . . 307, 358
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion),
ICJ Reports 1996 225 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305
Gabćíkovo-Nagymaros Project (Hungary v Slovakia), ICJ Reports 1997 3 . . . . . . . . . . . . . . . . 344
Diff erence Relating to Immunity from Legal Process of a Special Rapporteur of the
Commission on Human Rights (The Cumaraswamy Case) Advisory Opinion,
ICJ Reports 1999 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
Arrest Warrant of 11 April 2000 (Democratic Republic of the
Congo v Belgium), Judgment, ICJ Reports 2002 3 . . . . . . . . . . . . . . . . 4, 146, 158, 180, 190–3,
195–7, 213, 218, 220, 242–3, 246,
269–72, 279, 282–3, 295,
296, 324, 401, 415
xxii Table of Cases
Certain Criminal Proceedings in France (Republic of the Congo v France),
Application of 9 December 2002 (pending before the ICJ), available
at <http://www.icj-cij.org> . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213, 299, 426
Certain Criminal Proceedings in France (Republic of the Congo v France)
(Provisional measures) (2003), available at <http://www.icj-cij.org> . . . . . . . . . . . . . . . . . . 299
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v
Rwanda) (2006), available at <http://www.icj-cij.org> . . . . . . . . . . . . . . . . . . . . . . . . 305, 359
International Criminal Tribunal for the Former Yugoslavia

Case law of the ICTY can be found at <http://www.un.org/icty>
Prosecutor v Tadić, IT-94–1, Appeals Chamber, Decision on the Defence
Motion for Interlocutory Appeal on Jurisdiction (1995) . . . . . . . . . . . . . . . . . . . .210, 332, 352
Prosecutor v Blaškić, IT-95–14, Appeals Chamber, Judgment on the Request
of the Republic of Croatia for Review of the Decision of Trial Chamber II
of 18 July 1997 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111–12, 114, 145, 241
Čelebići Case, IT-96–21 Trial Chamber, Judgment (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
Prosecutor v Furundžija, IT-95–17/1, Trial Chamber,
Judgment (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81, 209, 213, 305, 314, 349, 352, 353
Prosecutor v Milošević, IT-02–54, Trial Chamber, Decision on Preliminary
Motions (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209, 241, 283
Prosecutor v Krstić, IT-98–33, Appeals Chamber, Decision on Application for Subpoenas
(2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .111, 241
International Military Tribunal

Nuremberg Judgment (1946), reprinted in (1947) 41 AJIL 172 . . . . . . . . . . . . . . . . . 201, 207–9
International Military Tribunal for the Far East

Oshima Case, in BVA Röling and CF Rüter (eds), The Tokyo Judgment,
The International Military Tribunal for the Far East, 29 April 1946–12
November 1949 (1977) 456 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275
Permanent Court of International Justice

Case of the S.S. “Wimbledon” PCIJ Series A no 1 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
Nationality Decrees Issued in Tunis and Morocco (Advisory Opinion)
PCIJ Series B No. 4 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334–5, 339
Case of the SS Lotus (France v Turkey) PCIJ Reports, Series A, no 9 (1927) . . . . . . . . . . . .211, 212
Jurisdiction of the Courts of Danzig, Advisory Opinion PCIJ Series B no 15(1928) . . . . . . . . . 200
Customs Régime between Germany and Austria (Protocol of March 19th, 1931)
(Advisory Opinion) PCIJ Series A/B no 41 37 (1931) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
Special Court for Sierra Leone

Prosecutor v Charles Ghankay Taylor, SCSL-2003–01-I, Appeals Chamber,
Decision on Immunity from Jurisdiction (2004), available
at <http://www.sc-sl.org> . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 218, 271, 283–92
United Nations Human Rights Committee

Muteba v Zaire Communication no 124/1982, UN Doc A/39/40 (1984) . . . . . . . . . . . . . . . . 412
United Nations Secretary-General

Ruling on the Rainbow Warrior Affair between France and New Zealand
(1986), (1987) 26 ILM 1346 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126–7, 128, 129, 130
Table of Cases xxiii
N AT ION A L C OU RT S
Argentina
Mario Cardile v Amílcar Bresso et al 8 AD 403, case no 192
(Federal Supreme Court, 1937) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
Australia
Grunfeld and Another v United States of America and Others 52 ILR 332
(New South Wales, Supreme Court, Sydney, 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . 122, 139
Polyukhovich v The Commonwealth 172 Commonwealth Law Reports 501
(High Court of Australia, 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
Petrotimor Companhia de Petroleos S.A.R.L. v Commonwealth of Australia
[2003] FCAFC 3 (Federal Court of Australia, New South Wales
District Registry, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259, 262
Austria
Dralle v Republic of Czechoslovakia 17 ILR 155 (Supreme Court, 1950) . . . . . . . . . . . . . . . .17, 58
Collision with Foreign Government-Owned Motor Car (Austria) Case 40 ILR 73
(Supreme Court, 1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
X v Federal Republic of Germany 65 ILR 10 (Supreme Court, 1963) . . . . . . . . . . . . . . . . . . . . . 75
Prince of X Road Accident Case 65 ILR 13 (Supreme Court, 1964) . . . . . . . . . . . . . . . . . . . . . 176
French Consular Employee Claim Case 86 ILR 583 (Supreme Court, 1989). . . . . . . . . . . . . . . . 56
Airport Linz v United States (Supreme Court, 2004) discussed in a case
note of S Wittich, (2005) 99 AJIL 248 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58, 71
Belgium
L’Etat du Pérou v Kreglinger PB 1857–2-348 (Tribunal de commerce d’Anvers &
Cour de Bruxelles, 1857) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Gouvernement ottoman v Société de Sclessin et Deppe et Roef PB 1877–3-28
(Tribunal d’Anvers, 1876) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Rau, Vanden Abeele et Cie v Duruty PB 1879–2-175 (Commercial Tribunal
Ostend, 1879) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Monnaie v Caratheodorou Eff endi JT 1903, col 764 (Tribunal civil de
Bruxelles, 1903) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107–8, 122
S.A. des Chemins de Fer liégeois-luxembourgeouis v l’Etat néerlandais PB 1903-I-294
(Cour de Cassation, 1903) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 43
Feldman v Etat de Bahia (1909) RCDIP 956 (Cour d’appel de Bruxelles, 1907) . . . . . . . . . . . . 58
Urrutia and Anollobieta v Martiarena 8 AD 237 case no 94 (Court of Brussels, 1937) . . . . . . . 77
De Decker v Mac Gregor PB 1956–3-5 (Tribunal Civil de Léopoldville, 1955) . . . . . . . . . . . . 137
Mobotu v SA Cotoni 91 ILR 259 (Civil Court of Brussels, 1988). . . . . . . . . . . . . . . . . . . 176, 184
Ordonnance du 6 novembre 1998, Juge d’instruction VanderMeersch (1999)
118 JT 308, discussed in L Reydams, ‘Case Note’ (1999) 93 AJIL 700 . . . . . . . . .212, 215, 245
Re Sharon and Yaron 127 ILR 110 (Court of Cassation (Second Chamber),
2003); 42 ILM 2003 596. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212, 268, 245
Brazil
Arab Republic of Syria v Arab Republic of Egypt 91 ILR 289 (Supreme Court, 1982) . . . . . . . . . 74
Burma
Kovtunenko v U Law Yone 31 ILR 259 (Supreme Court, 1960) . . . . . . . . . . . . . . . . . . . . . . . . 118
xxiv Table of Cases
Canada
Venne v Democratic Republic of the Congo 5 DLR (3d) 128 (Quebec Court
of Queen’s Bench, 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Government of the Democratic Republic of the Congo v Venne 64 ILR 24
(Supreme Court, 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Zodiak International Products Inc v Polish People’s Republic 64 ILR 51
(Quebec Court of Appeal, 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 48
Ferranti-Packard Ltd v Cushman Rentals Ltd 64 ILR 63 (Ontario High Court
of Justice, 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Re Royal Bank of Canada and Corriveau et al 64 ILR 69 (Ontario High Court, 1980) . . . . . . . 18
Amanat-Khan v Fredson Travel Int (No 2) 64 ILR 734 (High Court of Ontario, 1982) . . . . . . 18
Carrato v United States of America 90 ILR 229 (Ontario High Court, 1982) . . . . . . . . . . . . . . 70
Cargo ex the Ship Atra v Lorac Transport Ltd 84 ILR 700 (Court of Appeal, 1986) . . . . . . . . . . 87
Regina v Finta 82 ILR 424 (High Court of Justice, 1989) . . . . . . . . . . . . . . . . .141, 213, 216, 260
Re Canada Labour Code [1992] 2 SCR 50 (Supreme Court 1992) . . . . . . . . . . . . . . . . . . . . . . . 54
Jaff e v Miller and Others 95 ILR 446 (Ontario Court of Appeal 1993) . . . .83, 113, 148, 149, 237
Walker et al v Bank of New York Int. 104 ILR 277 (Court of Appeal for Ontario, 1994) . . . . 148
R v Bonadie (Ontario Court of Justice, 1996), discussed in EG Lee et al,
‘Consular Immunity, Alleged Criminal Activity of a Consular Officer’
(1996) 34 Canadian Yearbook of International Law 293 . . . . . . . . . . . . . . . . . . . . . . . . . . 120
Bouzari and Others v Islamic Republic of Iran 124 ILR 428 (Ontario Superior
Court of Justice, 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311, 337, 361
Schreiber v Canada (Attorney General) [2002] 3 SCR 269 (Supreme Court, 2002) . . . . . . . 62, 70
Bouzari and Others v Islamic Republic of Iran (Court of Appeal for
Ontario, 2004), available at <http://www.ontariocourts.on.ca/
decisions/2004/june/bouzariC38295> . . . . . . . . . . . . . . . . . . . . . . . .62, 311, 337–8, 361, 363
Chile
MH v Embassy of the Republic of China 70 ILR 394 (Supreme Court, 1969) . . . . . . . . . . . . . . 163
Senerman Rapaport v Republic of Cuba 65 ILR 29 (Supreme Court, 1975) . . . . . . . . . . . . . . . . 50
Walter Szurgelies Hoyer et al v First Counsellor of the Embassy of the Federal Republic
of Germany (Supreme Court, 1988), discussed in FO Vicuna, ‘Diplomatic and
Consular Immunities and Human Rights’ (1999) 40 ICLQ 34 . . . . . . . . . . . . . . . . . . . . . 368
Manfred Gerhard Skrabs et al v Consul of the Federal Republic of Germany (Supreme
Court, 1988), discussed in FO Vicuna, ‘Diplomatic and Consular Immunities
and Human Rights’ (1999) 40 ICLQ 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368
Danzig
Polish Officials in Danzig Case 6 AD 130, case no 64 (High Court, 1932) . . . . . . . . . . . . . . . 123
Egypt
Hall v Bengoa (1921) 48 JDI 270 (Cour d’appel mixte d’Alexandrie, 1920) . . . . . . . . . 47–8, 367
The National Navigation Cy of Egypt v Tavoularidis (1930) 57 JDI 203
(Tribunal mixte d’Alexandrie, 1927) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Monopole des Tabacs de Turquie and Another v Régie Co-Intéressée des Tabacs de
Turquie 5 AD 123, case no 79 (Mixed Court of Appeal, 1930). . . . . . . . . . . . . . . . . . . . . . . 15
Hénon v Egyptian Government and British Admiralty 14 AD 78, case no 28
(Civil Tribunal of the Mixed Courts, 1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
France
Petau v Honore de Grimaldi, prince de Monaco A-C Kiss, Répertoire de la pratique française
en matière de droit international public (1965) iii 269, no 455 (Cour de Paris, 1810) . . . 26, 170
Table of Cases xxv
Angelo-Poulos v Ferton Sirey 1809–1811, 2, 514 (Cour de Paris, 1811) . . . . . . . . . . . . . . . . . . 108

Gouvernement Espagnol v Casaux Sirey 1849, Part I, 81 (Cour de Cassation, 1849) . . . . . . 13, 49
Ministère Public v Dlle Masset A-C Kiss, Répertoire de la pratique française en matière
de droit international public (1965) iii 269 (Cour de Paris 1870) . . . . . . . . . . . . . . . . . . . . . 170
Isabelle de Bourbon v Mellerio (1874) 1 JDI 32 (Tribunal de la Seine, 1872);
A-C Kiss, Répertoire de la pratique française en matière de droit international
public (1965) iii 270 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25–6, 108
L’Empereur d’Autriche v Lemaitre (1874) 1 JDI 32 (Cour de Paris, 1872);
A-C Kiss, Répertoire de la pratique française en matière de droit
international public (1965) iii 269 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25–6, 108, 170
Bernet et autres v Herran, Dreyfus-Scheyer et autres A-C Kiss, Répertoire de la
pratique française en matière de droit international public (1965) iii 237
(Cour de Paris, 1880). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108, 135
Errembault de Dudzeele (1891) 18 JDI 137 (Cour de cassation, 1891)
Bey de Tunis v Mahmoud ben Aïad A-C Kiss, Répertoire de la pratique française
en matière de droit international public (1965) iii 272, no 461 (Cour d’appel
de Paris, 1893) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
Gamen Hubert v Etat Russe (1919) RCDIP 493 (Cour d’Appel de Paris, 1912) . . . . . . . . . . . . . 52
Ben Aïad v Bey de Tunis (1914) JDI 1290 (Cour d’Alger, 1914); A-C Kiss,
Répertoire de la pratique française en matière de droit international public
(1965) iii 271, no 460 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
Wiercinski v Seyyid Ali Ben Hamond (1917) 44 JDI 1465 (Tribunal civil de la
Seine, 1916); A-C Kiss, Répertoire de la pratique française en matière
de droit international public (1965) iii 270, no 457 . . . . . . . . . . . . . . . . . . . . . . . . . .171, 176–7
Capitaine Saabrok v la Société maritime auxiliare de transports (1922–1923)
18 RDIP 743 (Cour d’appel de Rennes, 1919) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123, 136
Lakhowsky v Gouvernement fédéral suisse et de Reynier (colonel) (1921) 48 JDI 179
(Cour de Paris, 1921) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123, 136
Esnault-Pelterie v The AV Roe Cy Ltd (1925) 52 JDI 702 (Tribunal civil de la
Seine, 1925); A-C Kiss, Répertoire de la pratique française en matière de
droit international public (1965) iii 236 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82, 135
Princess Zizianoff v Kahn and Bigelow 4 AD 384, case no 266
(Tribunal Correctionnel of the Seine, Court of Appeal of Paris,
Court of Cassation, 1927–1928); 23 AJIL 1929 172 . . . . . . . . . . . . . . . . . . . . . . . . . . . .117–18
Russian Trade Delegation v Société Française Industrielle et Commerciale des Pétroles
(Groupe Malopolska) 9 AD 245, case no 83 (Civil Tribunal of the Seine, 1940) . . . . . . . . . . 77
Société Française Industrielle et Commerciale des Pétroles v Russian Trade Delegation
11 AD 145 case no 77 (Court of Appeal of Paris, 1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Roumania v Pascalet 2 AD 132, case no 68 (Commercial Tribunal of Marseille, 1944) . . . . . . 49
De Keller v Maison de la Pensée Française (1955) 82 JDI 118 (Tribunal civil de la
Seine, 1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Boyer v Aldrète 23 ILR 445 (Tribunal Civil de Marseille, 1956) . . . . . . . . . . . . . . . . . . . .113, 118
Jean Dessès v Prince Farouk et Dame Sadek (1964) 91 JDI 285 (Tribunal de la
Seine, 1963); 65 ILR 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176–7
Ex-Roi d’Egypte Farouk v SARL Christian Dior (1957) 84 JDI 716 (Cour d’Appel
de Paris, 1957); A-C Kiss, Répertoire de la pratique française en matière de
droit international public (1965) iii 271, no 459 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176–7
Ali Ali Reza v Grimpell 47 ILR 275 (Court of Appeal of Paris, 1961) . . . . . . . . . . . . . . . . . . . 189
Caisse Industrielle d’Assurance Mutuelle v Consul Général de la République Argentine
45 ILR 381 (Tribunal de Grande Instance of the Seine, 1964) . . . . . . . . . . . . . . . . . . . . . . 138
Dame Mellerio v Consul général du Portugal (1969) 58 RCDIP 533
(Cour de Cassation, 1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
xxvi Table of Cases
Dame Burgat et autres (1977) 104 JDI 1977 630 (Conseil d’Etat, 1976) . . . . . . . . . . . . . . . . . 404
Société Algérienne de Commerce Alco et Autres v Sempac et Autres (1978) 105 JDI 904
(Cour de Cassation, 1978); 65 ILR 73 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Féderation National des Déportées et Internés Résistants et Patriotes and
Others v Barbie 78 ILR 125 (Court of Cassation (Criminal
Chamber), 1983 and 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141, 211, 216, 260
Tizon et Millet (1985) 31 AFDI 928 (Conseil d’Etat, 1984) . . . . . . . . . . . . . . . . . . . . . . 404, 405
Féderation National des Déportées et Internés Résistants et Patriotes and Others v
Barbie 78 ILR 124 (Court of Cassation (Criminal Chamber), 1985) . . . . . . . . . .141, 216, 260
Féderation National des Déportées et Internés Résistants et Patriotes and Others v
Barbie 100 ILR 330 (Court of Cassation (Criminal Chamber), 1988) . . . . . . . . .141, 216, 260
Consorts Duvalier et autres v État haïtien et autres (1991) 80 RCDIP 386
(Cour de Cassation, 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88, 183
République du Guatemala v Société internationale de négoce de café et du cacao
S.I.N.C.A.F.C. et autres (1991) 80 RCDIP 378 (Cour de Cassation, 1990) . . . . . . . . . . . . . . 88
Mobutu and Republic of Zaire v Société Logrine 113 ILR 481 (Court of Appeal
of Paris, 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Javor et autres (Cour d’appel de Paris, 1994), available at <http://www.trial-ch.org/twdoc/
JAVOR1994.pdf> . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
Gaddafi 125 ILR 490 (Court of Appeal & Court of Cassation, 2000, 2002) . . . . . . . . . . . . . 268
Federal Republic of Germany

The Staschynskij Case 18 Entscheidungen des Bundesgerichtshof in Strafsachen
87 (Bundesgerichtshof, 1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125, 130
Claim against the Empire of Iran Case 45 ILR 57 (Federal Constitutional
Court, 1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 54, 57, 58–9, 60
Assessment of Aliens for War Taxation Case 43 ILR 3 (Federal Constitutional
Court, 1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305
Yugoslav Consul Immunity Case 73 ILR 689 (Supreme Provincial Court of Bavaria, 1973) . . . .115
Oder-Neisse Property Expropriation Case 65 ILR 127 (Superior Provincial Court
(Oberlandesgericht) Munich, 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Church of Scientology Case 65 ILR 193 (Federal Supreme Court, 1978)
Tabatabai 80 ILR 389 (Provincial Court, 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . .57, 111, 138–9
Former Syrian Ambassador to the German Democratic Republic 115 ILR 595
(Federal Constitutional Court, 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .110, 144, 165–7
Public Prosecutor v Jorgic (1999) NStZ 236 (Bundesgerichtshof, 1998) . . . . . . . . . . . . . . . . . . 212
Beschl v 16 May 2000 (2000) NStZ 667 (Oberlandesgericht Köln, 2000) . . . . . . . . . . . . . . . 268
Public Prosecutor v Sokolovic 2001 NJW 2728 (Bundesgerichtshof, 2001) . . . . . . . . . . . . . . . 212
Greece
Consular Premises (Greece) 6 AD 338, case no 187 (Court of Athens, 1931) . . . . . . . . . . . . . . 138
Prefecture of Voiotia v Federal Republic of Germany (1997) 50 Revue
Hellénique De Droit International 595 (Court of First Instance
of Leivadia, 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .314, 329, 337
Prefecture of Voiotia v Federal Republic of Germany (Supreme Court 2000),
discussed in M Gavouneli & I Bantekas, Prefecture of Voiotia v
Federal Republic of Germany, 95 AJIL 2001 198 (German
translation on fi le with the author) . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 312, 313–14, 330, 338
Judgments nos 36/2002 and 37/2002, Supreme Court, discussed in: ECHR,
Kalogeropoulou a.o. v Greece and Germany (2002), available
at <http://www.echr.coe.int> . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330
Table of Cases xxvii
Judgment no 6/2002, Special Supreme Court, discussed in M Panezi, ‘Sovereign

Immunity and Violations of Jus Cogens Norms’ (2003) 56 Revue Hellénique
de Droit International 199 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330–1
India
Mirza Ali Akbar Kashani v United Arab Republic 64 ILR 489 (Supreme Court, 1965) . . . 18, 182
Colonel HH Raja Sir Harinder Singh Barar Bans Bahadur v Commisioner
of Income Tax, Punjab 64 ILR 523 (Supreme Court, 1971) . . . . . . . . . . . . . . . . . . . . . . . . . 182
Harbhajan Singh Dhalla v Union of India 92 ILR 530 (Supreme Court,
1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18–19, 48, 400, 413
Ireland
Saorstat and Continental Steamship Company, Ltd. v Rafael de las Morenas 12 AD 97,
case no 25 (Supreme Court, 1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Government of Canada v The Employment Appeals Tribunal and Burke 95 ILR 467
(Supreme Court, 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Schmidt v Home Secretary of the United Kingdom, the Home Secretary of the Metropolitan
Police and Jones 103 ILR 322 (High Court, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
Israel
Attorney General of Israel v Eichmann 36 ILR 5 (District Court
of Jerusalem, 1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141, 244, 260
Attorney General of Israel v Eichmann 36 ILR 277 (Supreme Court,
1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .141, 211, 216, 243–4, 260, 337
Italy
Morellet v Governo Danese Giu. It. 1883-I-125 (Corte di Cassazione di Torino, 1882) . . . . 14, 52
Guttieres v Elmilik 11 F.It. 1886-I-913 (Corte di Cassazione di Firenze, 1886). . .14, 48, 49, 51–2
Typaldos, Console di Grecia a Napoli v Manicomio di Aversa Giu. It. 1886-I-1–222
(Corte di Cassazione di Napoli, 1886) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Hamspohn v Bey di Tunisi F. It 1887 474 (Appello Lucca, 1887) . . . . . . . . . . . . . . . . . . . . . . . . 52
Ricorrente Rinaldi (1915) 9 RDI 215 (Corte di Cassazione di Roma, 1915) . . . . . . . . . . . . . . . 160
Carlo d’Austria Este v Nobili 73 Giu. It. 1921-I- 471 (Corte di Cassazione di
Roma, 1921); 1 AD 136, case no 90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 171
Comina v Kite (1924) 16 RDI 173 (Corte di Cassazione di Roma, 1922) . . . . . . . . 160, 368, 401
Storelli v Governo della Repubblica francese (1925) 17 RDI 236 (Tribunale di
Roma, 1924); 2 AD 129, case no 66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Governo Francese v Serra, and C v Ceretti ed altri (1925) 17 RDI 540
(Appello Genova, 1925) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Rappresentanza Commerciale Russa v Ditta Tesini e Malvezzi (1926) 18 RDI 249
(Corte di Cassazione, 1925); 3 AD 176, case no 127 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50–1
Governo Rumeno v Trutta 8 Giu. It. 1926-I 774 (1926) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Harrie Lurie v Steinmann (1928) 20 RDI 528 (Tribunale di Roma, 1927) . . . . . . . . . . . . . . . 160
In re Savini and Others 4 AD 166, case no 106 (Court of Appeal of Rome, 1927) . . . . . . . . . . 73
Alexeeff v Rappresentanza Commerciale dell’Unione delle Republiche Sovietiche Socialiste
(U.R.S.S.) (1933) Temi Emiliana 266 (1933). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Russian Trade Delegation in Italy v Kazmann 7 AD 178, case no 69 (Court
of Cassation, 1933) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Canale v Governo francese (1937) 29 RDI 81 (Appello Genova, 1937) . . . . . . . . . . . . . . . . 43, 52
De Meeüs v Forzano (1940) 32 RDI 93 (Corte di Cassazione, 1940); 9 AD 423,
case no 164 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .160, 161, 401
xxviii Table of Cases
Government of Bolivia v Italian Association for Aeronautical Exports 15 AD 133,
case no 41 (Court of Cassation, 1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 52
General Wagener Case (1950) Rivista Penale II, 753 (Supreme Military
Tribunal, 1950) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210–11
Floridi v Sovexportfilm (1952) Annali X 115 (1951) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Società Arethusa Film v Reist 22 ILR 544 (Tribunal of Rome, 1953) . . . . . . . . . . . . . . . . .107, 162
Soc Vivai industriali Roma v Legazione dell’Arabia Saudita (1955) 38 RDI 79
(Tribunale di Roma, 1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111, 112, 162
Kingdom of Greece v Gamet 28 ILR 153 (Court of Cassation, 1959) . . . . . . . . . . . . . . . . . . 65, 75
The Ditta Pomante v Federal Republic of Germany 40 ILR 64 (Civil Court of l’Aquila,
1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Ciniglio v Ambasciata d’Indonesia e Compagnia di Assicurazioni Intercontinentale
(1968) 4 RDIPP 104 (Pretore di Roma, 1966); 65 ILR 268 . . . . . . . . . . . . . . . . . . . . . . . . . 69
Ministry of Foreign Aff airs v Federici and Japanese State 65 ILR 275
(Tribunal of Rome, 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75–6
Re Rissmann (1971) 54 RDI 702 (Tribunale di Genova, 1970);
71 ILR 577 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111, 118–19
Campione v Peti-Nitrogenmuvek NV and Hungarian Republic 65 ILR 287
(Court of Cassation, 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65, 73
Re Rissmann (1973) 9 RDIPP 121 (Corte di Cassazione, 1972); 71 ILR 577. . . . . . . . . . . .118–19
Mallavel v Ministre des Aff aires étrangères français 65 ILR 303
(Pretore di Roma, 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137–8
Bacchelli v Commune di Bologna F. It. 1978 I, 804 (Corte di Cassazione, 1978);
reproduced in (1978–1979) 4 IYBIL 137. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .169, 182
Rubin v Console della Repubblica di Panama (1978) 61 RDI 565 (Corte di Cassazione,
1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 147
Soc. Immobiliare Soblim v Russel (1979) 62 RDI 797 (Corte Costituzionale, 1979). . . . . . . . . 397
Special Representative of the State of the City of the Vatican v Pieciukiewicz 78 ILR 120
(Court of Cassation, 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Ric Arafat e altro F. It. 1986 II, 277 (Corte di Cassazione, 1985) . . . . . . . . . . . . . . . . . . . . . . 182
Church v Ferraino (1987) 23 RDIPP 325 (Corte di Cassazione, 1986) . . . . . . . . . . . . . . . 117, 148
Presidenza Consiglio dei ministri e Stati Uniti d’America v Federazione italiana
lavoratori dei trasporto della provincia di Trento and others (2001)
37 RDIPP 1019 (Corte di Cassazione, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Ferrini v Repubblica Federale di Germania (2004) 87 RDI 539
(Corte di Cassazione, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 314, 318, 338, 342–3, 363–4
Japan
Matsuyama v Republic of China case 4 AD 168 (Great Court of Judicature, 1928) . . . . . . . . . . 20
Shimoda et al v The State (1964) 8 Japanese Annual of International Law 231
(Tokyo District Court, 1963); 32 ILR 626 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Yamaguchi v United States (Supreme Court 2002), discussed in M Tomonori,
‘Case Note on Yamagughi v United States’ (2003) 97 AJIL 406 . . . . . . . . . . . . . . . 20, 395, 413
Jordan
Nashashibi v The Consul-General of France in Jerusalem 26 ILR 190
(Supreme Court of Cassation, 1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .137, 138
Kenya
Minister of Defence of Government of the United Kingdom v Joel Ndegwa 103 ILR 235
(Court of Appeal, 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Table of Cases xxix
Malaysia
Village Holdings Sdn Bhd v Her Majesty the Queen in Right of Canada 87 ILR 223
(High Court, 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
Mexico
Decision on the Extradition of Ricardo Miguel Cavallo (2003) 42 ILM 888
(Supreme Court, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
The Netherlands
De Booij v het Duitsche Rijk NJ 1917 13 (Rechtbank Rotterdam, 1916) . . . . . . . . . . . . . . . . . . 76
N.V Limburgsch Landbouw Syndicaat (Wijk-Maastricht) v het Duitsche Rijk NJ 1917 12
(Rechtbank Maastricht, 1916) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
De Staat der Nederlanden v (1) de Booij (2) het Duitsche Rijk NJ 1917 133
(Rechtbank Rotterdam, 1917) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
De Booij v het Duitsche Rijk, the Government of Holland Intervening 1 AD 124,
case no 84 (District Court of Amsterdam, 1920) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Advokaat v Schuddinck and the Belgian State 2 AD 133, case no 68 (District Court
of Dordrecht, 1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
De Booij v (1) den Staat der Nederlanden (2) het Duitsche Rijk NJ 1924 535
(Hoge Raad 1924); 1 AD 124 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Republic of the South Moluccas v Royal Packet Shipping Company 17 ILR 143,
case no 39 (District Court of Amsterdam, Court of Appeal of Amsterdam,
1950, 1951) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
De Haas v De Staat Indonesië NJ 1962, no 74 (Hoge Raad, 1962). . . . . . . . . . . . . . . . . . . . . . 365
Church of Scientology in the Netherlands Foundation and Others v (1) Herold and (2)
Heinrich Bauer Verlag 65 ILR 380; (District Court of Amsterdam, 1980);
NJ (1981) No 501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111, 138–9
L.F. and H.M.H.K. v Federal Republic of Germany NJ 1987 no 955
(Rechtbank Haarlem, 1986); 20 NYIL 1989 285 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55–6
Bouterse R 97/163/12 Sv & R 97/176/12 Sv (Gerechtshof Amsterdam, 2000)
Boutserse NJ 2002 77 (Hoge Raad, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213, 245
De Haagse Stadspartij e.a. v De Staat der Nederlanden KG 05/432 (Rechtbank
‘s-Gravenhage, Voorzieningrechter in Kort Geding, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . 268
Van Anraat case LJN: AX6406 (District Court of The Hague, 2005), English
translation available at <http://zoeken.rechtspraak.nl/Default.aspx> . . . . . . . . . . . . . . 80, 142
New Zealand
L v The Crown 68 ILR 175 (Supreme Court, Auckland, 1977) . . . . . . . . . . . . . . . . . . . . . . . . .115
Governor of Pitcairn Islands v Sutton [1995] 1 NZLR 426 (Court of Appeal, 1994);
104 ILR 509 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Controller & Auditor General v Davison [1996] 2 NZLR 278 (Court of Appeal
of Wellington, 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314
Nigeria
Kramer Italo Limited v Government of Kingdom of Belgium; Embassy of Belgium
103 ILR 299 (Court of Appeal, 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Pakistan
Qureshi v Union of Soviet Socialist Republics 64 ILR 585 (Supreme Court, 1981) . . . . . . . . . . . 18
xxx Table of Cases
Philippines
Syquia et al v Lopez et al 18 ILR 228 (Supreme Court, 1949) . . . . . . . . . . . . . . . . . . . 122, 135–6
Johnson v Major-General Howard M. Turner et al 21 ILR 103
(Supreme Court, 1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122, 136
Baer v Tizon (Supreme Court, May 1974), available at <http://www.lawphil.net/
judjuris/judjuris.html>. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .111, 122
Sanders v Veridiano 162 SCRA 88 [1988] (Supreme Court, 1988);
102 ILR 148. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111, 122–3, 136
United States of America v Alarcon Vergara 102 ILR 132 (Supreme Court, 1990) . . . . . . . . 123–4
United States of America and Others v Guinto, Valencia and Others
(Supreme Court, 1990) 102 ILR 132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .111
United States of America and Others v Ceballos and Bautista 102 ILR 132
(Supreme Court, 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .111, 123
United States of America, Lamachia and Others v Rodrigo and Genove 102 ILR 132
(Supreme Court, 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .111
Chavez v Sandiganbayan 193 SCRA 282 [1991] (Supreme Court, 1990) . . . . . . . . . . 112–13, 124
Wylie v Rarang (Supreme Court, May 1992), available at <http://www.lawphil.net/
judjuris/judjuris.html>. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .111, 124
United States of America v Reyes (Supreme Court, March 1993), available
at <http://www.lawphil.net/judjuris/judjuris.html> . . . . . . . . . . . . . . . . . . . . . . . . 111, 124–5
Liang v The Philippines (Supreme Court, January 2000), available at <http://www.
lawphil.net/judjuris/judjuris.html> . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
Poland
Aldona S v Royaume Uni (1963) 90 JDI 191 (Supreme Court, 1948) . . . . . . . . . . . . . . . . . . . . 160
S v British Treasury 24 ILR 223 (Supreme Court, 1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Romania
Banque roumaine de commerce et de crédit de Prague v État polonais (1924) 19 RDIP 581
(Tribunal de commerce d’Ilfov, 1920) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Senegal
Habré 125 ILR 569 (Court of Appeal of Dakar, Court of Cassation, 2000, 2001) . . . . . . . . . 216
South Africa
Inter-Science Research and Development Services Ltd v Republica Popular
of Moçambique 64 ILR 689 (Supreme Court, Transvaal Provincial
Division, 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Kaff raria Property Co v Government of the Republic of Zambia United Nations, Materials
on Jurisdictional Immunities of States and their Property (1982), ST/LEG/SER.B/20
(Supreme Court, Eastern Cape Division, 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Spain
Case 1/98 (Audiencia Nacional, criminal division, plenary session, 1998),
discussed in M Del Carmen Márquez and J Alcaide Fernández,
‘Case Note’ (1999) 93 AJIL 690 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
Fidel Castro no 1999/2723 (Audiencia Nacional, 1999) discussed in A Cassese,
‘When May Senior State Officials Be Tried for International Crimes? Some
Comments on the Congo v Belgium Case’ (2002) 13 EJIL 853 fn 19 . . . . . . . . . . . . . . . . . . 268
Guatemala Genocide Case 42 ILM 2003 686 (Supreme Court 2003) . . . . . . . . . . . . . . . . . . . 213
Peruvian Genocide Case 42 ILM 2003 1200 (Supreme Court 2003) . . . . . . . . . . . . . . . . . . . . 213
Table of Cases xxxi
Switzerland
Socialist Libyan Arab Popular Jamahiriya v Libyan American Oil Company
(LIAMCO), (1981) 37 ASDI 217 (Tribunal fédéral Suisse, 1980) . . . . . . . . . . . . . . . . . . . . . 88
Etat italien v X (1986) 42 ASDI 60 (Cour d’appel de Bâle-Ville, 1985) . . . . . . . . . . . . . . . . . . . 58
Swissair v X and Another 82 ILR 36 (Federal Tribunal, 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Marcos and Associates v Chambre d’Accusation, Geneva 82 ILR 53
(Federal Tribunal, 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
Marcos and Marcos v Federal Department of Police 102 ILR 198
(Federal Tribunal, 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169, 180, 184–5
Aff aire Etat de Koweït v X.S.A., Pratique Suisse 1994, no 3.1, 5 (Tribunal fédéral
Suisse, 1994); RSDIE 1995 593. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
United Kingdom
Ashby v White 2 Ld Raym. 938 (Court of Appeal, 1703) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340
Duke of Brunswick v King of Hanover (1848) 2 HLC 1
(House of Lords, 1848) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 81–92, 170
The Haber v Queen of Portugal 17 QB 171 (Court of Queens’s Bench, 1851). . . . . . . . . . . 25, 170
Taylor v Best 14 CB 487 (1854) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
Magdalena Steam Navigation Company v Martin 2 El. & El. 94 (1859) . . . . . . . . . . . . . . . . . . 160
The Charkieh LR 4A & E 59 (High Court of Admiralty, 1873) . . . . . . . . . . . . . . . . . . . . . 26, 48
Twycross v Dreyfuss 5 Ch.D. 605 (Court of Appeal, 1877) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
The Parlement Belge (1878–1879) 4 PD 129 (Court of Admiralty, 1879) . . . . . . . . . . . . . . . 35–6
The Parlement Belge (1879–1880) 5 PD 197 (Court of Appeal, 1880) . . . . . . . . . . . . . . . 35–6, 42
Mighell v Sultan of Johore [1894] 1 QB 149 (Court of Appeal, 1893). . . . . . . . . . . . . . . 42–3, 172
Statham v Statham and the Gaekwar of Baroda [1912] P. 92
(Probate, Divorce and Admiralty Provision, 1911) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
The Porto Alexandre [1920] P. 30 (Court of Appeal, 1919); 1 AD 146, case no 100 . . . . . . . 36, 48
Compania Mercantil Argentina v United States Shipping Board 131 LT 388
(Court of Appeal, 1924) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Dickinson v Del Solar [1930] 1 KB 376 (King’s Bench Division, 1929);
5 AD 299, case no 190. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134, 161
The Cristina (1938) 60 LR 147 (House of Lords, 1938) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 50
Krajina v Tass Agency [1949] All ER 274 (Court of Appeal, 1949) . . . . . . . . . . . . . . . . . . . . . . . 37
Sayce v Ameer Ruler of Bahawalpur State [1952] 2 QB 390 (Court of Appeal, 1952) . . . . . . . . 172
Sultan of Johore v Abuhakar [1952] AC 318 (The Privy Council) . . . . . . . . . . . . . . . . . . . . . . . . 39
Baccus SRL v Servicio Nacional del Trigo [1957] 1 QB 438 (Court of Appeal, 1956) . . . . . . . 37–8
Rahimtoola v The Nizam of Hyderabad [1958] AC 379 (House of Lords, 1957);
24 ILR 175 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 42, 150–2
Buck v Attorney General [1965] Ch 475 (Court of Appeal, 1964) . . . . . . . . . . . . . . . . . . . . . . . 81
Zoernsch v Waldock and Another 41 ILR 438 (Court of Appeal, 1964) . . . . . . . . . . . . . . . . 152–3
Empson v Smith [1965] 2 All ER 881 (Court of Appeal, 1965); 41 ILR 407 . . . . . . . . . . 134, 161
Mohamed Ali v Public Prosecutor, Privy Council 1968, [1969] AC 430 . . . . . . . . . . . . . . . . . . 128
I Congreso del Partido [1978] QB 500 (Queen’s Bench Division, 1975–1977) . . . . . . . . . . . . . 316
Thai-Europe Tapioca Service Ltd v Government of Pakistan [1976] 1 LR 1
(Court of Appeal, 1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 39
The Philippine Admiral 64 ILR 90 (The Privy Council, 1975) . . . . . . . . . . . . . . . . . . . . . . . 39, 48
Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529
(Court of Appeal, 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 40
Uganda Co (Holdings) v Government of Uganda [1979] 1 LR 481
(Queens Bench Division, 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
xxxii Table of Cases
I Congreso del Partido [1983] 1 AC 244 (House of Lords, 1981) . . . . . . . .18, 41, 47, 48–9, 54, 97
Buttes Gas v Hammer [1982] AC 888 (House of Lords, 1981) . . . . . . . . . . . . . . . . . . . 257–9, 261
Smith Kline and French Laboratories Ltd v Bloch [1983] 2 All ER 72
(Court of Appeal, 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
Hill v Chief Constable of West Yorkshire [1989] AC 53 (House of Lords, 1988) . . . . . . . . . . . . 373
Osman and another v Ferguson and another [1993] 4 All ER 344 (Court of Appeal, 1992) . . . 373
X and Others v Bedfordshire County Council [1995] 3 All ER 353 (House of Lords, 1995) . . . 374
Al-Adsani v Kuwait 107 ILR 536 (Court of Appeal, 1996) . . . . . . . . . . . . . . . . . . . . . . . . 317, 414
BCCI v Price/Waterhouse (A Firm) and Others 111 ILR 604 (High Court, Chancery
Division, 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
Propend Finance Pty Ltd v Sing 111 ILR 611 (Court of Appeal, 1997) . . . . . . . . .83, 103, 153, 238
Re P (No 1) 114 ILR 478 (High Court, Family Division, 1997) . . . . . . . . . . . . . . . . . . . . . . . .115
Re P (No 2) 114 ILR 485 (High Court, Family Division; Court of Appeal,
Civil Division, 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .115, 153–4
R v Bow Street Metropolitan Stipendiary Magistrate and others, ex p Pinochet Ugarte,
The Divisional Court of the Queen’s Bench Division 1998, [1998]
All ER (D) 509 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225, 296–7
R v Bow Street Metropolitan Stipendiary Magistrate and others, ex p Pinochet Ugarte
(Amnesty International and others intervening) [1998] 4 All ER 897
(House of Lords, 1998); ([1998] 3 WLR 1456 HL) (Pinochet no 1) . . . . . . . . . . . . . . 226, 230
R v Bow Street Metropolitan Stipendiary Magistrate and others, ex p Pinochet Ugarte
[1999] 1 All ER 577 (House of Lords, 1999); [1999] 2 WLR 272 (Pinochet no 2) . . . . . . . 226
R v Bow Street Metropolitan Stipendiary Magistrate and others, ex p
Pinochet Ugarte (Amnesty International and ors intervening)
[1999] 2 All ER 97 (House of Lords, 1999) (Pinochet no 3) . . . . . . . . . . . 2, 83, 103, 146, 155,
173, 211, 215, 218, 223–38, 245, 254,
262, 267, 294, 297–8, 305, 360
Holland v Lampen-Wolfe [2000] 1 WLR 1571 (House of Lords, 2000). . . . . 49, 83, 155, 391, 392
Kuwait Airways Corporation v Iraqi Airways Company and Others [2002] 2 AC 883 (House of
Lords, 2002); 125 ILR 602 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261–2
Jones v Saudi Arabia and Abdul Aziz 2003 WL 22187644 QBD (High Court, 2003) . . . 238, 317
Matthews v Ministry of Defence [2003] 1 AC 1163 (House of Lords, 2003) . . . . . . . 372–3, 391–2
Jones v Saudi Arabia and Abdul Aziz & Mitchell a.o. v Al-Dali a.o. [2005] QB 699
(Court of Appeal, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . 233, 234, 238, 254–7, 260, 361, 398
Jones v Saudi Arabia [2006] UKHL 26 (House of Lords, 2006), available
at <http://www.publications.parliament.uk/pa/ld/ldjudgmt.htm> . . . 4, 104, 145, 153, 155–6,
217, 220, 238–9, 245,
254, 319, 361, 392
R. v Jones [2006] UKHL 16 (House of Lords, 2006), available at <http://www.publications.
parliament.uk/pa/ld/ldjudgmt.htm> . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
United States
Respublica v Longchamps 1 US (1 Dall.) 111 (Pennsylvania Supreme Court, 1784) . . . . . . . . . 201
Ware v Hylton 3 US (3 Dall.) 199 (Supreme Court, 1796) . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
Murray v The Schooner Charming Betsy, 6 US (2 Cranch) 64 (Supreme Court, 1804) . . . . . . . 328
The Schooner Exchange v M’Faddon 11 US (7 Cranch) 116
(Supreme Court, 1812) . . . . . . . . . . . . . . . . . 12, 21–8, 34–5, 95, 100, 169–70, 323–4, 366–7
United States v Klintock 18 US (5 Wheat.) 144 (Supreme Court, 1820) . . . . . . . . . . . . . . . . . 200
United States v Pirates 18 US (5 Wheat.) 184 (Supreme Court, 1820) . . . . . . . . . . . . . . . . . . . 200
United States v The La Jeune Eugenie 26 F Cas 832 (Circuit Court for the District
of Massachusetts, 1822). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200–1
The Antelope 23 US (10 Wheat) 66 (Supreme Court, 1825). . . . . . . . . . . . . . . . . . . . . . . . . . . 355
Table of Cases xxxiii
United States v Ortega 24 US (11 Wheat) 467 (Supreme Court, 1826) . . . . . . . . . . . . . . . . . . 201
Hatch v Baez 7 Hun. 596 (New York Supreme Court, 1876) . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Dow v Johnson 100 US 158 (Supreme Court, 1879) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
Hilton v Guyot 159 US 113 (Supreme Court, 1895). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
Underhill v Hernandez 168 US 250 (Supreme Court, 1897) . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Kawananakoa v Polybank 205 US 349 (Supreme Court, 1907) . . . . . . . . . . . . . . . . . . . . 34–5, 44
Ex p Young 209 US 123 (Supreme Court, 1908) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
The Attualità 238 F 909 (Court of Appeals 4th Circuit, 1916) . . . . . . . . . . . . . . . . . . . . . . . . . 28
Kingdom of Roumania v Guaranty Trust Co. of New York 250 F 341
(Court of Appeals 2nd Circuit, 1918) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 53
The Roseric 254 F 154 (District Court for the District of New Jersey, 1918) . . . . . . . . . . . . . . . 28
Republic of France v Pittsburgh Steel Export Company 1 AD 134, case no 89
(City Court of the City of New York, 1920) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Coale et Al v Société Coopérative Suisse des Charbons, Basle et al, 1 AD 133,
case no 88 (District Court for the Southern District of New York, 1921) . . . . . . . . . . . . . . . 31
N.Y. Trust Co. v Eisner, 256 US 345 (Supreme Court, 1921) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
The Pesaro 277 F 473 (District Court for the Southern District of New York, 1921) . . . . . 29, 48
Kunglig Jarnvagsstyrelsen v Dexter and Carpenter 2 AD 121, case no 63 (District Court
for the Southern District of New York, 1924) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Oliver-American Trading Co v Government of the United States of Mexico 2 AD 49,
case no 21 (Court of Appeals 2nd Circuit, 1924) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Bradford v Director General of Railroads of Mexico 3 AD 182, case no 132
(Court of Civil Appeals of Texas (El Paso), 1925) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
Berizzi Bros v SS Pesaro 271 US 562 (Supreme Court, 1926) . . . . . . . . . . . . . . 21–2, 28–9, 53–4
Kunglig Jarnvagsstyrelsen v Dexter and Carpenter 5 AD 125, case no 80
(Court of Appeals 2nd Circuit, 1929) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Lyders v Lund 5 AD 321, case no 211 (District Court for the Northern District
of California, 1929) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
United States v Deutsches Kalisyndicat Gesellschaft 31 F 2d 199 (District Court for
the Southern District of New York, 1929) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Hannes v Kingdom of Roumania Monopolies Institute 9 AD 198, case no 72
(Supreme Court of New York, 1938 and 1940) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
The Navemar 303 US 68 (Supreme Court, 1938); 9 AD 176, case no 68 . . . . . . . . . . . . . . . . . 30
Lamont v Travellers Insurance Co. 9 AD 207, case no 73
(New York Court of Appeals, 1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Landley v Republic of Panama 9 AD 441, case no 175 (District Court for the Southern
District of New York, 1940) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122, 136
Puente v Spanish National State 9 AD 190, case no 70
Sullivan v State of São Paulo 10 AD 178, case no 50 (Court of Appeals,
2nd Circuit 1941)
Ex p Quirin 317 US 1 (Supreme Court, 1942). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Ex p Republic of Peru 318 US 578 (Supreme Court, 1943). . . . . . . . . . . . . . . . . . . . . . . . 128, 204
Piascik v British Ministry of War Transport 12 AD 87, case no 22 (District Court for the
Southern District of New York, 1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Ex p Young 323 US 670 (Supreme Court, 1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
Republic of Mexico v Hoff man 324 US 30 (Supreme Court, 1945) . . . . . . . . . . . . . . . . . . . . . . . 30
The Beaton Park 13 AD 83, case no 35 (District Court for the Western District
of Washington, Northern District, 1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Isbrandtsen Co, Inc v Netherlands East Indies Government (The Martin Behrman)
14 AD 75, case no 26 (District Court for the Southern District
of New York, 1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
xxxiv Table of Cases
Republic of China v American Express Co 19 AD 192, case no 39 (Court of Appeals
2nd Circuit, 1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Dalehite v United States 346 US 15 (Supreme Court, 1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Arcaya v Páez 23 ILR 436 (District Court for the District of New York, Court
of Appeals 2nd Circuit, 1956, 1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
Weilamann and McCloskey v The Chase Manhattan Bank 28 ILR 165 (Supreme
Court of New York, 1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Rich v Naviera Vacuba, S.A 295 F 2d 24 (Court of Appeals 4th Circuit, 1961);
32 ILR 127 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Baker v Carr 369 US 186 (Supreme Court, 1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
Jiminez v Aristeguieta, 311 F 2d 547 (Court of Appeals 5th Circuit, 1962) . . . . . . . . . . . . . . . .115
Chong Boon Kim v Kim Yong Shik and David Kim 81 ILR 604 (Court of Appeal 1st
Circuit, 1963); 58 AJIL 1964 186 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
National Institute of Agrarian Reform v Terry Kane (1963-II) 2 ILM 658
(District Court of Appeal of Florida, Third District, 1963). . . . . . . . . . . . . . . . . . . . . . . . . . 81
Banco Nacional de Cuba v Sabbatino 376 US 398 (Supreme Court, 1964) . . . . . . . . . . . . . . . . 82
Victory Transport Inc. v Comisaria Gen. De Abestecimientos y Transportes 336 F 2d 354
(Court of Appeals 2nd Circuit, 1964); 35 ILR 110 . . . . . . . . . . . . . . . . . . . . 32, 35, 48, 53, 84
Chemical Natural Resources v Republic of Venezuela 420 Pa. 134 (Supreme Court
of Pennsylvania, 1966); 42 ILR 119 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 100
Bivens v Six Unknown Federal Narcotics Agents 403 US 388 (Supreme Court, 1971) . . . . . . . 113
Heaney v Government of Spain and Adolpho Gomero 445 F 2d 501
(Court of Appeals 2nd Circuit, 1971); 57 ILR 153 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Isbrandtsen Tankers Inc v President of India 446 F 2d 1198
(Court of Appeals 2nd Circuit, 1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32–3
Occidental Petroleum Corporation v Buttes Gas and Oil Company 331 F Supp 92
(District Court for the Central District of California, 1971) . . . . . . . . . . . . . . . . . . . . . . . 258
Occidental Petroleum Corporation v Buttes Gas and Oil Company 461 F 2d 1261
(Court of Appeals 9th Circuit, 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258
Spacil v Crowe 489 F 2d 614 (Court of Appeals 5th Circuit, 1974); 63 ILR 24 . . . . . . . . . . . 33–4
Psinakis and Others v Marcos and Others 81 ILR 605 (District Court for the Northern
District of California, 1975); 1975 Digest of United States Practice in International
Law 344 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .174, 178
Alfred Dunhill of London Inc. v Republic of Cuba 425 US 682
(Supreme Court, 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 47, 49
Kilroy v Windsor 81 ILR 605 (District Court for the Northern
District of Ohio, 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185–6, 189
Occidental of Umm al Qaywayn Inc v A Certain Cargo of Petroleum Laden Aboard the
Tanker Dauntless Colocotronis 577 F 2d 1196 (Court of Appeals 5th Circuit, 1978) . . . . . . 258
International Association of Machinists and Aerospace Workers v Organization
of Petroleum Exporting Countries 477 F Supp 553 (District Court for the
Central District of California, 1979); 63 ILR 284 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54–5
O’Hair v Wojtyla 81 ILR 607 (District Court for the District of Colombia, 1979) . . . . . . . . . 137
Filartiga v Peňa-Irala 630 F 2d 876 (Court of Appeals 2nd Circuit, 1980) . . . . . . . . 217, 249, 310
Letelier v Chile 488 F Supp 665 (District Court for the District
of Columbia, 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69–70, 121, 167, 337
International Association of Machinists and Aerospace Workers v Organization
of Petroleum Exporting Countries 649 F 2d 1354 (Court of Appeals 9th
Circuit, 1981); 66 ILR 413 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Rios v Marshall 530 F Supp 351 (District Court for the Southern District
of New York, 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
Table of Cases xxxv
Jafari v Islamic Republic of Iran 539 F Supp 209 (District Court for the Northern
District of Illinois, 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
Nixon v Fitzgerald 457 US 731 (Supreme Court, 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 274
Estate of Silme G Domingo v Ferdinand Marcos no C82–1055v 1982
(District Court for the Western District of Washington) 1982)
in (1983) 77 AJIL 305 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174, 179, 185, 189
Commonwealth v Jerez 457 N.E.2d 1105 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .115
McKeel v Islamic Republic of Iran 722 F 2d 582 (Court of Appeals 9th Circuit, 1983) . . . . . . 311
Verlinden BV v Central Bank of Nigeria 461 US 480 (Supreme Court, 1983) . . . . . . . 32, 35, 100
Berkovitz v Islamic Republic of Iran 735 F 2d 329 (Court of Appeals 9th Circuit, 1984) . . . . . 311
Filártiga v Peña-Irala 577 F Supp 860 (District Court for the Eastern District
of New York, 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
Persinger v Islamic Republic of Iran 729 F 2d 835 (Court of Appeals for the District
of Columbia Circuits, 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
Demjanjuk v Petrovsky 603 F Supp 1468 (District Court for the
Northern District of Ohio, 1985), 776 F 2d 571 (Court of
Appeals 6th Circuit, 1985); 79 ILR 538 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .141, 211, 260
Frolova v Union of Soviet Socialist Republics 761 F 2d 360 (Court
of Appeals 7th Circuit, 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311, 328, 360
McDonnell Douglas Corp. v Islamic Republic of Iran 758 F 2d 341
(Court of Appeals 8th Circuit, 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 99
Von Dardel v Union of Soviet Socialist Republics 623 F Supp 246
(District Court for the District of Columbia, 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . 327, 360
Gerritsen v De la Madrid CV-85- 5020-PAR, slip.op. (District Court for the Central
District of California, 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
The Republic of the Philippines v Marcos 806 F 2d 344 (Court of Appeals 2nd
Circuit, 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Aidi v Yaron 672 F Supp 516 (District Court for the District of Columbia, 1987) . . . . . . . . . 268
Amerada Hess Shipping Corporation v Argentine Republic 830 F 2d 421
(Court of Appeals 2nd Circuit, 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327
Forti v Suarez-Mason 672 F Supp 1531 (District Court for the Northern District
of California, 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
Gerritsen v De La Madrid 101 ILR 478 (Courts of Appeal 9th Circuit, 1987) . . . . . . . . . . 120–1
In re Grand Jury Proceedings, John Doe # 700 817 F 2d 1108
(Court of Appeals 4th Circuit, 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .132, 175, 181
Martin v Republic of South Africa 836 F 2d 91 (Court of Appeals 2nd Circuit, 1987) . . . . . . . 311
Republic of the Philippines v Marcos 665 F Supp 793 (District Court for the
Northern District of California, 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189–90
Doe v United States 860 F 2d 40 (Court of Appeals 2nd Circuit, 1988) . . . . . . . . . .173, 175, 181
In re Mr And Mrs Doe, Witnesses Before the Grand Jury 860 F 2d 40
(Court of Appeals 2nd Circuit, 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131–2
Kline and Others v Kaneko and Others 685 F Supp 386 (District Court for
the Southern District of New York, 1988); 101 ILR 497 . . . . . . . . . . . . . . . . . . . . . . . 136, 185
Saltany v Reagan 702 F Supp 319 (District Court for the District of Columbia,
1988); 87 ILR 680 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .174, 189, 190
State of Indiana v Ström (Superior, Court of Lake County, Criminal Division,
1988), reported in LT Lee, Consular Law and Practice (2nd edn 1991) 501. . . . . . . . . . . . . 120
Argentine Republic v Amerada Hess Shipping Corporation 488 US 428
(Supreme Court, 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327, 360
Helen Liu v The Republic of China 892 F 2d 1419 (Court of Appeals 9th
Circuit, 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70, 121, 250, 337
xxxvi Table of Cases
Kline v Cordero de la Madrid 546 NYS 2d 506 (New York State Court of Appeal, 1989). . . . 185
Saltany v Reagan 886 F 2d 438 (Court of Appeals District of Columbia Circuits, 1989) . . . . 174
Trajano v Marcos 878 F 2d 1439 (Court of Appeals 9th Circuit, 1989) . . . . . . . . . . . . . . . . . . 249
Chuidian v Philippine National Bank 912 F 2d 1095
(Court of Appeals 9th Circuit, 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83, 149
Herbage v Meese 98 ILR 101 (District Court for the District of Columbia, 1990)
(affirmed without reasons 946 F 2d 1564 (1991)) . . . . . . . . . . . . . . . . . . . . . . . . . 149–50, 248
United States v Noriega 746 F Supp 1506 (District Court for the Southern
District of Florida, 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .115, 175
Von Dardel v Union of Soviet Socialist Republics 736 F Supp 1
(District Court for the District of Columbia, 1990) . . . . . . . . . . . . . . . . . . . . . . 327, 360, 362
Hafer v Melo, 502 US 21 (Supreme Court, 1991) . . . . . . . . . . . . . . . . . . . . . . . 113, 133, 247, 253
Heaney v Government of Spain and Adolpho Gomero 57 ILR 153
Risk v Halvorsen and Others 98 ILR 125 (Court of Appeals 9th Circuit, 1991) . . . . . . . . 120, 121
US v Alvarez-Machain 504 US 655 (Supreme Court, 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . 357
Anonymous v Anonymous NYS 2d 776 (New York State Court of Appeals, 1992) . . . . . . . . . . 174
Denegri v Republic of Chile WL 91914 (District Court for the District
of Columbia, 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .311, 329, 360
Princz v Federal Republic of Germany 813 F Supp 22 (District Court for the
District of Columbia, 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354
Siderman de Blake v Republic of Argentina 965 F 2d 699
(Court of Appeals 9th Circuit, 1992) . . . . . . . . . . . . . . . . . . . . . . .3, 314, 316–17, 327–8, 360
Trajano v Marcos (In re Estate of Ferdinand E. Marcos Litigation) 978 F 2d 493
Nelson v Saudi Arabia 507 US 349 (Supreme Court, 1993). . . . . . . . . . . . . . . . . . . . . . . .311, 337
Paul v Avril 812 F Supp 207 (District Court for the Southern District
of Florida, 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .132, 181, 249
Alicog v Kingdom of Saudi Arabia 860 F Supp 379 (District Court for the Southern
District of Texas, 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71–2, 174
Cicippio v Islamic Republic of Iran 30 F 3d 164 (Court of Appeals for the District
Doe v Karadžić 866 F Supp 734 (District Court for the Southern District
of New York, 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
Guardian F. v Archdiocese of San Antonio case no 93-CI-11345 (District Court for the
District of Texas, 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
Hilao v Marcos (In re Estate of Ferdinand Marcos Human Rights Litigation)
25 F 3d 1467 (Court of Appeals 9th Circuit, 1994) . . . . . . . . . . . . . . . . . . . . . . .176, 249, 310
Lafontant v Aristide 844 F Supp 128 (District Court for the Eastern
District of New York, 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .173, 174, 175, 182, 268, 273
Princz v Federal Republic of Germany 26 F 3d 1166 (Court of Appeals for the
District of Columbia Circuits, 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311, 328, 354, 360
Kadic v Karadžić 70 F 3d 232 (Court of Appeals 2nd Circuit, 1995);
34 ILM 1995 1595. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141, 174, 235, 248, 251, 260, 310
Xuncax and Others v Gramajo and Ortiz v Gramajo 886 F Supp 162 (District Court,
District of Massachusetts, 1995), 104 ILR 165 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251
Abebe-Jira v Negewo 72 F 3d 844 (Court of Appeals 11th Circuit, 1996) . . . . . . . . . . . . . . . . 310
Cabiri v Assasie-Gyimah 921 F Supp 1189 (District Court for the Southern District
of New York, 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
El-Fadl v Central Bank of Jordan 75 F 3d 668 (Court of Appeals for the District
Table of Cases xxxvii
First American Corp. v Sheikh Zayed Bin Sultan Al-Nahyan 948 F Supp 1107
(District Court for the District of Columbia, 1996) . . . . . . . . . . . . . . . . . . . . . . .174, 176, 182
Junquist et al v Sheikh Sultan Bin Khalifa Al Nayhan et al 940 F Supp 312
(District Court for the District of Columbia, 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . 136, 185
Smith v Socialist People’s Libyan Arab Jamahiriya 101 F 3d 239
(Court of Appeals 2nd Circuit, 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329, 360
Alejandre v Republic of Cuba 996 F Supp 1239 (District Court for the Southern
District of Florida, 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .315
Doe v UNOCAL 963 F Supp 880 (District Court for the
Central District of California, 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
Phaneuf v Government of Indonesia and Mawardi 106 F 3d 302
Sampson v Federal Republic of Germany 975 F Supp 1108 (District Court for
the Northern District of Illinois, 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360
United States v Noriega 117 F 3d 1206 (Court of Appeals 11th
Circuit, 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .115, 174–5
Cicippio v Islamic Republic of Iran 18 F Supp2d 62 (District Court for the
District of Columbia, 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .315
Flatow v Islamic Republic of Iran 999 F Supp 1 (District Court for the
District of Columbia, 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .174, 175, 252, 273–4, 315
Rein v Socialist People’s Libyan Arab Jamahiriya 995 F Supp 325
(District Court for the Eastern District of New York, 1998)
and 162 F 3d 748 (Court of Appeals 2nd Circuit, 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . .315
Cabiri v Government of the Republic of Ghana 165 F 3d 193
(Court of Appeals 2nd Circuit, 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329
El-Hadad v Embassy of the United Arab Emirates 69 F Supp 2d 69
(District Court for the District of Columbia, 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
Anderson v Islamic Republic of Iran 90 F Supp 2d 107 (District Court for the
Daliberti v Republic of Iraq 97 F Supp 2d 38 (District Court for the
Doe v UNOCAL 110 F Supp 2d 1294 (District Court for the Central
District of California, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
Eisenfeld v Islamic Republic of Iran 2000 WL 1918779 (District Court for the
Elahi v Islamic Republic of Iran 124 F Supp 2d 97 (District Court for the
El-Hadad v Embassy of the United Arab Emirate F 3d 29 (District Court for the
District of Columbia, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
Higgins v Islamic Republic of Iran C.A. No. 99–377-CKK (District Court for the
Daliberti v Republic of Iraq 146 F Supp 2d 19 (District Court for the
Hwang Geum Joo v Japan 172 F Supp 2d 52 (District Court for the
District of Columbia, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .311, 329, 360, 362
Jenco v Islamic Republic of Iran 154 F Supp 2d 27 (District Court for the
Sampson v Federal Republic of Germany 250 F 3d 1145
Sutherland v Islamic Republic of Iran 151 F Supp 2d 27 (District Court for the
xxxviii Table of Cases
Tachiona v Mugabe 169 F Supp 2d 259 (District Court for the
Southern District of New York, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 173, 174, 189, 190, 268
Cronin v Islamic Republic of Iraq 238 F Supp 2d 222 (District Court for the
Doe v UNOCAL 395 F 3d 932 (Court of Appeals 9th Circuit, 2002) . . . . . . . . . . . . . . . 142, 310
Garb v Poland 207 F Supp 2d 16, 37 (District Court for the Eastern
District of New York, 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .311, 329
Heller v Caberta, case no 8:00CV-1528-T-27 (Court of Appeals 11th Circuit,
9 May 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
Abiola v Abubakar 267 F Supp 2d 907 (District Court for the Northern District
of Illinois 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174, 184, 268
Hwang Geum Joo v Japan 332 F 3d 679 (Court of Appeals for the District
of Columbia Circuits, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .311, 329
Smith and Soulas v The Emirate of Afghanistan and Iraq 262 F Supp 2d 217
(District Court for the Southern District of New York, 2003) . . . . . . . . . . . . . . . 274, 315, 355
Doe et al v Lumintang Civ A. No. 00–674 (District Court for the District
of Columbia, 2001 & 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
Velasco v Government of Indonesia and Mawardi 370 F 3d 392
Sosa v Alvarez-Machain (2004) 43 ILM 1390 (Supreme Court, 2004) . . . . . . . . . . . . . . . 217, 310
Tachiona v United States 386 F 3d 205 (Court of Appeals 2nd Circuit, 2004) . . . . . . . . 189, 268
Wei Ye v Jiang Zemin no 03–3989 F 38 2004 WL 1984430
(Court of Appeals 7th Circuit, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174, 184, 220, 268
Zimbabwe
Barker McCormac (Private) Ltd v Government of Kenya 84 ILR 18
(Supreme Court, 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1
Introduction
Are the well-established immunity rules that shield states and their officials from
foreign adjudicative jurisdiction affected by the relatively recent developments in
international human rights law and international criminal law? This, in an obvi-
ously constraining nutshell, is the principal question at the basis of this study.¹
The progressive development of a normative system of international human
rights law and international criminal law without the simultaneous development
of international institutional enforcement mechanisms has put the question of
the role of national courts in the application of these norms to the fore and has
made the question as to the relation between immunity rules and human rights
norms and international criminal law an immediate one.²
The question can be approached from two distinct perspectives. In the first
place it must be questioned whether immunity rules as such are compatible with
certain rights of individuals under international human rights law like the right
of access to the courts, the right to a remedy, or the right to effective protection.
This perspective formed the thrust of the critique on the absolute approach to
the rule of state immunity half a century ago. The fact that with the increasing
economic activity of states the absolute approach was seen to entail the risk of
denial of justice to private individuals is one of the reasons for the prevalence
of a restrictive approach to the rule today. In recent times the question is also
approached from a second perspective. It is questioned whether foreign states and
foreign state officials still have a right to immunity from proceedings concerning
grave human rights abuses in view of certain conceptual changes in the inter-
national legal order.
It was the Pinochet case that put the issue of immunity and human rights in the
limelight of attention. When the former head of state of Chile Augusto Pinochet
visited the United Kingdom in 1998 Spanish authorities issued an international
warrant for his arrest in respect of, inter alia, allegations of torture that took place
in Chile during his time in office. He was arrested by UK authorities and Spain
subsequently requested his extradition. The 1999 decision of the House of Lords
¹ The research does not extend to the question of immunity from execution of state property.
² This study will often employ the notion of a ‘human rights exception to immunity rules’ as an
umbrella term for exceptions to immunity rules based on international human rights law or inter-
national criminal law.
2 The Immunity of States
that Pinochet did not enjoy immunity from the criminal jurisdiction of UK
courts with regard to some of the acts of torture and could hence be extradited to
Spain sparked of a vigorous debate on immunity and human rights both on the
political and the academic level.³
The question, however, transcends the particulars of the Pinochet case. Pinochet
relied on the rule of functional immunity that shields all (former) state officials
from the jurisdiction of foreign national courts with regard to the limited class
of official acts performed on behalf of the state. That rule must be distinguished
from the rule of state immunity—that precludes the exercise of jurisdiction over
the acta jure imperii of foreign states—and the rule of personal immunity—that
provides comprehensive protection from foreign jurisdiction to certain categories
of foreign state officials during their term of office. The present study will exam-
ine the research question in regard to all three immunity concepts.⁴
By now, this can hardly be called a virgin area of international law. In the
wake of the Pinochet case the question as to the relation between state immunity
and human rights has engaged the minds of the judges of the European Court
of Human Rights in Al-Adsani v United Kingdom, while the relation between
personal immunity and international criminal law was at the heart of the deci-
sion of the International Court of Justice (ICJ) in the Arrest Warrant case (Congo
v Belgium) and the House of Lords addressed the relation between functional
immunity and international human rights law in Jones v Saudi Arabia. These
cases—the central pieces of the décor in which our examination takes place—
compel the conclusion that arguments against immunity rules based on inter-
national human rights law and international criminal law have not fared
particularly well in state practice.
The Pinochet case is deceiving in this respect. The decision has been lauded for
deciding that ‘l’ancien Chef d’Etat . . . n’est . . . pas à l’abri des poursuites lorsque
ces actes revêtent le caractère de crimes de droit international’⁵ and providing ‘le
critère qui permet de distinguer parmi les actes d’un gouvernant’.⁶ Upon closer
consideration the decision does however not bear the weight of such sweeping
claims. Although it is well-nigh impossible to find a common ratio decidendi in
the six individual majority opinions in the Pinochet case, it can be safely stated
that the denial of immunity turned on the specific terms of the 1984 Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
³ R v Bow Street Metropolitan Stipendiary Magistrate and others, ex p Pinochet Ugarte (Amnesty
International and ors intervening) [1999] 2 All ER 97 (UK, HL, 1999) (Pinochet no 3).
⁴ The immunity of international organizations and their officials is not included in this study.
⁵ C Dominicé, ‘Quelques observations sur l’immunité de juridiction pénale de l’ancien chef
d’Etat’ (1999) 103 RGDIP 297, 307.
⁶ M Cosnard, ‘Quelques observations sur les décisions de la Chambre des Lords du 25 Novembre
1998 et du 24 Mars 1999 dans l’affaire Pinochet’ (1999) 103 RGDIP 309, 319.
Introduction 3
Punishment and the particular definition of the crime of torture therein, rather
than on considerations applicable to crimes against international law in general.⁷
The relation between the law of state immunity and international human
rights law was an issue of debate well before 1998. From the end of the 1980s
onwards proponents of a human rights exception have argued that acts that
violate jus cogens norms cannot qualify as sovereign—jure imperii—acts for the
purpose of the rule of state immunity. Several US courts expressed sympathy
for the argument. For example, in the 1992 decision in the case of Siderman de
Blake v Republic of Argentina the Ninth Circuit Court of Appeals considered
that ‘international law does not recognize an act that violates jus cogens as a sov-
ereign act. A state’s violation of the jus cogens norm prohibiting official torture
therefore would not be entitled to the immunity afforded by international law.’⁸
Reluctantly, the court concluded that the strictures of the 1976 Foreign Sovereign
Immunities Act did not leave it any choice but to grant Argentina immunity
in respect of the claim for damages for alleged torture of Jose Siderman. With
the conspicuous exceptions of the Greek case of Prefecture of Voiotia v Federal
Republic of Germany and the Italian case of Ferrini v Federal Republic of Germany
no court has accepted a human rights exception to the law of state immunity.⁹
The paucity of positive state practice led the European Court of Human Rights
to conclude in Al-Adsani v United Kingdom that under international law no such
exception exists.¹⁰ The Court attached great weight to the fact that the 2004 UN
Convention on Jurisdictional Immunities of States and their Property does not
include a human rights exception, and relied on a report of the ILC Working
Group that concluded that state practice as yet did not support such an excep-
tion.¹¹ Eight of the seventeen judges dissented. They did not argue that the rule
of state immunity does not extend to violations of jus cogens norms. Rather, they
argued that ‘[t]he acceptance . . . of the jus cogens nature of the prohibition of tor-
ture entails that a State allegedly violating it cannot invoke hierarchically lower
rules . . . to avoid the consequences of the illegality of its actions.’ In respect of alle-
gations of torture, they concluded, the rule of state immunity does not produce
⁷ Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or
Punishment (1984) 1465 UNTS 85, reprinted in (1984) 23 ILM 1027.
⁸ Siderman de Blake v Republic of Argentina 965 F 2d 699 (US, Ct of Apps (9th Cir), 1992) 718.
⁹ Prefecture of Voiotia v Federal Republic of Germany (Greece, S Ct, 2000) (German trans on
fi le with the author), discussed in M Gavouneli & I Bantekas, ‘Prefecture of Voiotia v. Federal
Republic of Germany’, (2001) 95 AJIL 198, 202. Cf for the 1997 decision of the Court of First
Instance of Leivadia, (1997) 50 Revue Hellénique De Droit International 595; and the case note
by I Bantekas in (1998) 92 AJIL 765. Ferrini v Repubblica Federale di Germania 87 RDI 2004 539
(Italy, Corte di Cassazione, 2004). Moreover, the US has adopted an exception to the rule of state
immunity in respect of certain human rights claims against a limited group of ‘terrorist states’,
see ch 6 § 2.3.2.3 below.
¹⁰ Al-Adsani v United Kingdom (2001) 34 EHRR 273, 123 ILR 24.
¹¹ Appendix to the 1999 Report of the Working Group of the International Law Commission
on Jurisdictional Immunities of States and their Property, annexed to the Report of the ILC on the
work of its fifty-first session.
any legal effect.¹² The Court however decided in majority to reject the jus cogens
argument because it was ‘unable to discern in the international instruments, judi-
cial 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’.¹³
In its 2002 decision in the Arrest Warrant case, the ICJ reasoned in a compar-
able vein.¹⁴ In October 2000 Congo had instituted proceedings against Belgium
in respect of a dispute concerning an international arrest warrant in absentia issued
by an investigating judge of the Brussels Tribunal de première instance, charging
the then incumbent minister of foreign affairs of Congo, Mr Yerodia, with crimes
under international law and crimes against humanity. The ICJ concluded that
the Belgian arrest warrant indeed violated the personal immunity of the minister.
It argued in relevant part that ‘it has been unable to deduce from . . . practice that
there exist under customary international law any form of exception to the rule
according immunity from criminal jurisdiction and inviolability to incumbent
Ministers for Foreign Affairs, where they are suspected of having committed war
crimes or crimes against humanity’.¹⁵ In particular, the Court rejected reliance
on the principle of irrelevance of official capacity as laid down in the Charter of
the Nuremberg Tribunal and the Statutes of the International Criminal Tribunal
for the Former Yugoslavia (ICTY), the International Criminal Tribunal for
Rwanda (ICTR) and the International Criminal Court (ICC) respectively. The
Court argued that these rules did ‘not enable it to conclude that any such excep-
tion exists in customary international law in regard to national courts.’¹⁶
In its 2006 decision in Jones v Saudi Arabia the House of Lords held foreign
state officials sued for acts of torture committed under ostensible official author-
ity to be protected under the same immunity cloak as foreign states.¹⁷ According
to the Law Lords, foreign states can invoke state immunity on behalf of their
officials whenever these officials are sued for acts for which the state bears inter-
national responsibility under the law of state responsibility. Under reference to,
inter alia, the Al-Adsani case it was concluded that the rule of state immunity
knows no exception in case of torture allegations.
If these three particularly eminent courts had authoritatively settled the issues
put before them there would be no point in a comprehensive study like the present
one. It will therefore be no surprise that this author is not swayed by the rhetoric
¹² ibid, dissenting opinion of Judges Rozakis and Cafl isch joined by Judges Wilhaber, Costa,
Cabral Barreto, and Vajic, § 3. Judges Ferrari, Bravo, and Loucaides delivered separate dissenting
opinions.
¹³ ibid § 61.
¹⁴ Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Judgment) ICJ
Reports 2002 3.
¹⁵ ibid 24, § 58.
¹⁶ ibid.
¹⁷ Jones v Saudi Arabia [2006] UKHL 26 available at <http://www.publications.parliament.uk/
pa/ld/ldjudgmt.htm>.
Introduction 5
of the Pinochet, Al-Adsani, Arrest Warrant, and Jones cases. It is not necessarily
the outcome of the inquiries undertaken in these cases that is taken issue with.
Rather, it is the terms on which the decisions are premised that fail to convince.
Legal arguments divide in two principal categories. We can argue what the
applicable law is and we can argue what the applicable law should be. Decisions
of courts must be based on the first type of argument—the state of the law argu-
ments. This type of argument knows two variants. A state of the law argument
may be focused on the scope of a rule, or it may argue that a certain rule does not
apply—regardless of its scope—for example because it is trumped by another
rule of international law. The second type of argument—the policy arguments—
urges states to change the rules through a change of practice or conventional law.
It is noted at the outset that both type of arguments are equally valuable in
a conceptual debate on the position of immunity rules in international law.
Especially policy arguments that can point to a clash between the obligations
under the relevant rule and other obligations of states under international law
are forceful. The term policy argument in this study should hence be understood
from the perspective of immunity rules. Policy arguments of this kind may in
fact pivot on a state of the law argument on international human rights law or
international criminal law. Since judges could decide that the latter legal obli-
gation should prevail over the former, such a policy argument may in fact result
in the non-application of the immunity rule. If on the other hand, the forum
state is allowed to apply the immunity rule, a successful policy argument of this
kind in any case obliges the forum state to compensate the private individual
whose human rights are violated. Arguments that approach the research ques-
tion from the first perspective identified above are in principle policy arguments.
States that once adhered to an absolute approach to the rule of state immunity
were convinced to change their practice on the basis of such policy arguments.
The clash between the obligations owed to foreign states under the law of state
immunity—albeit not in terms of international law as will be explained in chap-
ter 2 of this study—and the obligation to protect the rights and interests of pri-
vate individuals under international human rights law did not change the law of
state immunity as such but urged states to change the law. As Lauterpacht put it:
‘At a period in which in enlightened communities the securing of the rights of
the individual—in all their aspects, against the state has become a matter of spe-
cial and significant effort, there is no longer a disposition to tolerate the injustice
which may arise whenever the state—our own state or a foreign state—screens
itself behind the shield of immunity in order to defeat a legitimate claim.’¹⁸
It stands to reason that the respective arguments do have a different role in the
debate. A policy argument cannot convince when the ascertainment of the scope
¹⁸ H Lauterpacht, ‘The Problem of Jurisdictional Immunities of Foreign States’ (1951) 28 BYIL

220, 235.
of the rule is the subject of debate; and a state of the law argument is no persuasive
rebuttal of a policy argument.
To be coherent, both the form of state of the law arguments and the substance of
state of the law and policy arguments on the relation between the three immunity
rules and developments in international human rights law and international crim-
inal law must reflect sound international legal theory on the nature and the scope
of all rules relied on. The form of an argument is only coherent when it is consistent
with the epistemology of international law. This is in particular an issue for state of
the law arguments on customary international law. How can arguments work in
light of accepted theories of formation, change, and invalidation of rules of custom-
ary international law? Policy arguments are obviously not limited in this regard—
although of course a policy argument that relies on the clash of different rules of
international law must rely on state of the law arguments establishing the existence
of these obligations. For an argument to be coherent in substance, it must proceed
from a correct understanding of the substance of the rules and principles it relies on.
This study will argue that the arguments of both opponents and proponents
in the debate on a human rights exception to immunity rules proceed from
unarticulated—and problematic—assumptions as to the epistemology of rules of
customary international law and suffer from a lack of theorization on the nature
and substance of the respective immunity rules. The recent instances of judicial
thinking on our research question hence warrant further inquiry into the the-
ory of immunity rules. The study sets out to reconsider the nature and substance
of the rule of state immunity, the rule of functional immunity and the rule of
personal immunity in order to identify the parameters of coherent argument in
a debate on the scope of these respective rules. On the basis of this analysis the
study will proceed to assess the possible influence of international human rights
law and international criminal law on these rules.
The ideas put forward in this work follow a study and analysis of a variety of
sources. The foremost source of international immunity rules is national juris-
prudence. Immunity decisions from courts all over the world are remarkably well
documented, most prominently in the International Law Reports and in surveys
compiled in preparation of codification efforts by international learned bodies.
In addition, the availability of extensive scholarly writings in the field of immun-
ity law has proven a valuable starting point for further research in national law
reports. For the purposes of this study it is not necessary to relate the specifics of
each individual jurisdiction. There will be a focus on those decisions that best
illustrate the trends and developments in the field of the respective immunity
rules. Thus, if we discuss the rule of state immunity, Belgian, Italian, UK, and US
case law warrants special attention since knowledge of the developments in those
jurisdictions in particular contributes to a better understanding of the nature and
the substance of the international law rule as we know it today.
Also the national and international codifications of international law immun-
ity rules provide valuable insights. This study draws extensively on national
Introduction 7
immunity laws like the US Foreign Sovereign Immunities Act and the UK State
Immunity Act; on international conventions like the Vienna Conventions on
Diplomatic and Consular Relations, the Special Missions Convention, and the
recent UN Convention on Jurisdictional Immunities of States and their Property;
and on the codification efforts undertaken by international learned bodies like
the Harvard Research Project, the International Law Commission, the Institut
de Droit International, and the International Law Association.
Finally, this study has benefited greatly from the extensive scholarly ponder-
ing on the rule of state immunity, the rule of functional immunity and the rule
of personal immunity of diplomats and heads of state. The work of scholars like
Anzilotti, Brownlie, Cosnard, Crawford, De Sena, and Lauterpacht—to name a
few—forms the indispensable basis upon which this study builds.
A conscious choice has been made to allow for lengthy quotations from all
of these sources. Many old sources are still widely referred to today—but often
these references rely on interpretations of these sources by others rather than on
an inquiry into the source itself. Or, we see that courts or scholars are attributed
certain ideas detaching quotations from their context. Second, and this reason is
less pertinent, it is believed to be the duty of every doctoral researcher—blessed
with time to blow dust off old books—to share particularly cutting insights and
pointed formulations of scholars or judges that have once mused upon issues that
are still relevant today, in order to save them from passing into oblivion.
These sources provide the framework for the critical study of instances of state
practice and scholarly thinking regarding our research question, like the Pinochet,
Al-Adsani, Arrest Warrant, Taylor, and Jones cases—to name only the most con-
spicuous of relevant judicial decisions—the Belgian war crimes legislation, the
resolution of the Institut de Droit International on head of state immunity, the
US terrorist-state exception to state immunity and so on.
As said, the study commences with an analysis of the nature and substance
of the rule of state immunity, the rule of functional immunity, and personal
immunity rules. To this end, the first three chapters introduce and unravel
the respective immunity concepts—that will, in fact, prove essentially distinct.
The aspiration is not to give a complete overview of all three immunity rules. The
focus is on materials that provide a particular insight into the nature and sub-
stance of these rules or in the common perception thereof.
Chapter 2 examines the rule of state immunity. The chapter proposes that a
reformulation of the rule, in terms of the limits on the essential competence of
national courts serves to distinguish the rule of restrictive immunity from the
archaic notions of regal dignity and privilege that attach to an absolute approach
to the rule.¹⁹ The rule of state immunity reflects the limits on sovereignty—and
hence on the competence of national courts—inherent in a legal order consisting
¹⁹ The notion ‘absence of essential competence’ is borrowed from Brownlie, cf ch 2 § 3.3.1

below.
of entities equal and independent in the exercise of their territorial sovereignty.
The realization that the rule of state immunity as we know it today is not a con-
tinuation of the rule of absolute immunity with some exceptions accepted to it,
but that a qualitative difference between the two rules exists has consequences
for the form and substance of coherent argument on the scope of the rule. In
the first place, it is argued that a purely inductive approach to the formulation
of exceptions does not convincingly settle the issue. It is argued that arguments
based on logic—or reason—are in fact coherent in form and a persuasive rebuttal
requires discussion of the merits of these arguments. The restatement of the rule
in terms of essential competence however does not only expand the parameters of
coherent argument. The substance of coherent argument must reflect a thorough
understanding of the substance of the rule. In this respect it is also argued that
the policy arguments as once developed against the absolute state immunity rule
may not be persuasive in respect of the restrictive state immunity rule.
Chapter 3 examines the rule of functional immunity of foreign state officials.
It is increasingly common to represent the rule as a corollary of the rule of state
immunity ratione materiae. State officials are then regarded immune in respect of
sovereign activity they have performed on behalf of the state in order to prevent
that the rule of state immunity could be circumvented by suing the officials that
performed the act. The chapter rejects that interpretation of the rule. The rule of
functional immunity concerns the non-personal responsibility of state officials
for acts of state. It is argued that in this respect ‘act of state’ is an autonomous
concept unrelated to the concept of sovereign act of state that controls the rule
of state immunity. The application of the law of state immunity to foreign state
officials is only a consequence of the operation of the rule of functional immunity.
The concept is also not related—as is argued in a second popular interpretation of
the rule—to the act of state concept that features in the law of state responsibility.
For the purpose of the rule of functional immunity act of state means an act that
must be attributed to the state rather than to the individual that performs the act.
The proposed approach to the rule and the rejection of the two approaches that
currently prevail, offers a new perspective on the substance of coherent argumen-
tation on the scope of the rule. In particular, it establishes that certain develop-
ments in the field of international criminal law are directly related to the rule.
Chapter 4 examines the personal immunity of foreign diplomatic agents and
foreign heads of state.²⁰ These protected individuals are granted immunity from
jurisdiction in the real sense of the word. Coherent arguments on the scope of the
rule are therefore—indeed—limited to inductive reasoning on the basis of state
practice on these rules. Developments in the field of international criminal law
are not directly relevant in this respect. However, forceful policy arguments may
be formulated against the rules of personal immunity.
²⁰ Personal immunities that may apply to foreign military forces are not dealt with in this
study.
Introduction 9
The restatement of the rules in terms of lack of essential competence, absence

of personal responsibility, and immunity from jurisdiction prepares the ground
for the examination of the relation between these rules and developments in
international human rights law and international criminal law and for the critical
discussion of the arguments that presently prevail in the debate on this relation.
The essential differences between the three immunity concepts allow a reasoned
distinction between the form and substance of arguments on the scope of the
rules in chapters 5 and 6.
Chapter 5 examines the relation between the functional and personal immun-
ity of foreign state officials and the obligations of individuals under international
law. It is here that the Pinochet case and the Congo v Belgium case will be dis-
cussed in more detail. The chapter will also examine the oft-heard argument that
functional and personal immunities from foreign jurisdiction do not apply to
international courts. The decision of the Special Court for Sierra Leone (SCSL) in
Prosecutor v Taylor deserves special consideration in this respect.²¹
Chapter 6 inquires into the relation between the immunity of foreign states
and its officials and the rights of individuals under international law. Which argu-
ments are convincing in light of our proposed understanding of the rule of state
immunity and of the characteristics of international human rights law? How do
the majority and minority opinions in the Al-Adsani case fare in this respect?
A critical discussion of what by now may be called mainstream human rights
doctrine ultimately furthers the position of human rights in international law.
The unqualified attack on immunity rules launched by the human rights move-
ment risks casting a shadow over all human rights-based arguments against
immunity rules. This study attempts to sort the wheat from the chaff.
²¹ Prosecutor v Charles Ghankay Taylor SCSL–2003–01–I Appeals Chamber Decision on

Immunity from Jurisdiction (2004), available at <http://www.sc-sl.org/>.
2
State Immunity
1 Introduction
Academic writing on the law of state immunity is profuse. So why is another

examination of the nature and substance of the rule of state immunity, through
the discussion of well-known case law and oftquoted scholarly works, thought
warranted? The main reason is that the rule suffers from the trees-for-wood
phenomenon: scholars and courts alike have tended to focus on the formulation
of a workable regime for the application of the restrictive rule of state immunity
while its nature and substance as a rule of international law have been steadily
disregarded.
The study of the influence of human rights law on immunity rules requires
examination of two preliminary questions. The current debate bears the marks of
an underdeveloped legal theory as regards these two questions.
The first question that must be addressed is how arguments that immunity is
not available when core human rights norms are violated may function in light
of the theory of custom ascertainment. Proponents of a human rights exception
tend to cast their arguments in terms of logic: in light of the developments in the
field of human rights law state immunity can no longer be available when certain
norms are violated. They argue either that the reasons underlying the rule do not
require immunity to be granted, or alternatively that the rule must give way to
other, more important rules or principles of international law. Opponents, on
the other hand usually argue in a formalistic vein. Since customary international
law follows the conjunction of a general state practice supported by opinio juris
sive necesitatis—the argument of opponents runs—a human rights exception to
immunity rules may only develop through the gradual acceptation of such excep-
tion in state immunity practice. At first blush the approach of opponents to a
human rights exception seems to represent mainstream legal theory on custom
formation while proponents seem to resort to a less accepted, objectivist approach
to custom ascertainment. However, close consideration of the nature of the rule
of state immunity may put the controversy in a different perspective.
The second question regards the substantive parameters of human rights argu-
ments in favour of, and against, immunity rules. When can it be argued that the
immunity rules conflict with obligations of states under international human
State Immunity 11
rights and international criminal law? And when can arguments of logic con-
vince in light of the substance of the international law requirements to which
these rules give expression? One of the arguments of proponents of a human
rights exception to state immunity is that human rights violations cannot qual-
ify as sovereign acts for the purposes of the restrictive state immunity theory.
Opponents have pointed out that the exercise of police and military power is an
epitome of sovereign state activity and hence squarely covered by the theory. In
essence, the controversy centres on the function of the concept of sovereignty
in the law of state immunity. To be coherent both state of the law and policy
arguments on the scope of the rule of state immunity must evidence a thorough
understanding of the substance of the rule. Arguments of opponents and propon-
ents fail to convince from this perspective.
The coherency of both the form and substance of arguments in favour of and
against the human rights exception has been negatively affected by the common
focus on the regime rather than the rationale of the rule in standard immunity
doctrine. The purpose of this chapter is to set out the nature and substance of
the rule of state immunity in order to identify the tools needed for the develop-
ment and assessment of arguments in the debate on a human rights exception. In
section 2 the argument is developed that the practice of formation of the rule
of state immunity together with the common—and related—approach to the
formulation of the rule constitute the basis of the current focus on the regime
of state immunity rather than on the rule itself. Awareness of the actual circum-
stances of the formation of the state immunity rule will help to identify some of
the premises of its development and will point us to the often-unarticulated
anachronisms that still haunt the rule today. The discussion of the rule is domi-
nated by Latin phrases like par in parem non habet imperium, immunity ratio-
nae personae versus immunity ratione materiae, and most importantly acta
jure imperii versus acta jure gestionis. These formulas have enchanted courts
and scholars alike, and although they do indeed all have some bearing on the
rule, their automatic, uncritical and often misplaced restatement has prevented
further examination of the foundation of the state immunity concept. ‘A page
of history is worth a volume of logic’,¹ will prove a maxim apposite to the study
of the state immunity rule. Only after untangling the web of state immunity
cases and doctrine can an attempt be made to reconstruct the concept in terms of
requirements imposed by international law.
In section 3 it will be argued that the rule of restrictive state immunity is essen-
tially unrelated to the rule of absolute state immunity as it was once applied in
several jurisdictions and that a qualitative difference between the two rules exists.
Building on the work of the handful of scholars that recognized the flaws of con-
ventional immunity thinking, it will be argued that in substance the state immun-
ity rule reflects the operation of several principles of international law regarding
¹ Holmes J in NY Trust Co v Eisner 256 US 345 (US, S Ct, 1921) 349.

the essential competence of national courts. The rule of state immunity, as we
know it today, is inherent in an international legal order consisting of states that
are equal in status and independent in their exercise of state power over a certain
territory. The conception of state immunity as a sort of necessary principle of the
international legal order rather than an ordinary rule of customary international
law has consequences for both the form and substance of arguments in the debate
on the human rights exception.
2 The Rule of Restrictive State Immunity
2.1 Introduction
The origins of the modern rule of state immunity from foreign jurisdiction are
commonly traced to the early nineteenth century. The 1812 decision of the US
Supreme Court in the case of The Schooner Exchange v M’Faddon² is generally
held to be the first judicial expression of the rule of foreign state immunity. On
30 December 1810 the French navy forcibly seized the schooner Exchange, a
ship privately owned by US nationals and on its way from the United States to
the Continent. The ship was taken to France, where it was turned into a French
warship and renamed the Balaou. When in August of the next year the Balaou,
under stress of bad weather, made a stop into the port of Philadelphia, the
original owners of the vessel, John M’Faddon and his partner, filed a claim
before a US court, asserting their right of property. Their claim was dismissed on
immunity grounds, and the following words of Chief Justice Marshall have since
then been quoted in virtually every treatise on state immunity:
One sovereign being in no respect amenable to another, and being bound by obligations
of the highest character not to degrade the dignity of his nation, by placing himself or its
sovereign rights within the jurisdiction of another, can be supposed to enter a sovereign
territory only under an express licence, or in the confidence that the immunities belong-
ing to his independent sovereign status, though not expressly stipulated, are reserved by
implication, and will be extended to him.³
Of course, kings, princes and the like had been shielded from foreign jurisdiction
before. The Schooner Exchange was seen to confirm that the recognition of the
existence of the sovereignty of the state as an abstract entity, separate and inde-
pendent from the sovereignty from its personal ruler, entailed the development
of an immunity concept shielding that artificial legal concept ‘state’ from foreign
jurisdiction as well.⁴
² The Schooner Exchange v M’Faddon 11 US 116 (US, S Ct, 1812).

³ ibid 137.
⁴ Early literature on international law did not mention the concept of immunity of foreign states
only that of personal immunity of diplomats and foreign sovereigns. Cf A Gentili, De Legationibus
State Immunity 13
The study of the development of the state immunity rule from its inception in
the nineteenth century until the gradual but distinct prevalence of the restrict-
ive theory of state immunity since the second half of the twentieth century pro-
vides valuable insights for the understanding of the rule as we know it today. The
foreign state immunity doctrine is often depicted as having developed from an
absolute rule, categorically precluding national courts from exercising jurisdic-
tion over foreign states, to a restrictive rule that allows the exercise of jurisdiction
under certain circumstances.⁵ An examination of early foreign state immunity
decisions however does not confirm this. The development of the state immunity
rule is more complex than cursory consideration leads us to think.
Many states indeed accepted the theory of absolute state immunity at one point
in time. The French Cour de cassation, for example, formulated an absolute for-
eign state immunity rule as early as 1849. It refused to engage in a claim brought
by a French company against Spain with regard to the purchase of boots for the
Spanish army considering that a government cannot be subjected to the jurisdic-
tion of a foreign state in respect of its contractual obligations.⁶
The theory of restrictive immunity was however already adhered to by Italy
and Belgium in the nineteenth century and adopted by several other states not
long thereafter. Are these early developments but a temporary and insignificant
deviation from the otherwise general and consistent acceptance of the abso-
lute immunity rule; or should it be concluded that international law has never
required national courts to grant an absolute immunity to foreign states? It will
be argued in this study that early restrictive immunity practice, viewed together
with the less than convinced application of the absolute immunity rule in early
US and UK practice, compel reconsideration of the common theory on the devel-
opment of the law of state immunity.
This conclusion is important for the next step in the argumentation developed
in this section. The rule of restrictive state immunity is now widely accepted but
little understood. Scholars and courts alike have focused on a practicable regime
and commonly skirt important questions as to the theoretical basis of the rule. In
particular, the rule of restrictive state immunity is presented as the continuation
of the old absolute rule with a list of exceptions attached to it. The section will
conclude with a proposal to rethink the nature and substance of the law of state
immunity as we know it today.
Libri Tres (1594), ch XVI; H Grotius, De Jure Belli ac Pacis (1625) trans by LR Loomis (1949),
ch XVIII s IV; C Van Bynkershoek, De Foro Legatorum Liber Singularis (1721), trans by GJ Laing
(1946), ch XIII for diplomatic immunity and Van Bynkershoek ch IV and V; E De Vattel, Le droit
de gens ou principes de la loi naturelle, appliqués à la conduite & aux aff aires des nations & des souve-
rains (1758) iii trans by CG Fenwick (The Law of Nations, 1983), liv IV ch VII for personal foreign
sovereign immunity.
⁵ Cf eg R Higgins, Problems & Process, International Law and How We Use It (1994) 79;
R Jennings and A Watts (eds), Oppenheim’s International Law (9th edn, 1992) i 355–63.
⁶ Gouvernement Espagnol v Casaux Sirey 1849, Part I, 81 (France, Cour de cassation, 1849).
2.2 Development of the Rule of Restrictive State Immunity

2.2.1 Early Restrictive Tendencies
In the nineteenth century Belgium and Italy refused to grant foreign states abso-
lute immunity from the jurisdiction of their courts.⁷ The restrictive approach to
state immunity proved, however, not to be an isolated Belgian and Italian caprice;
it gained gradual though steady support in other jurisdictions as well. Already
in 1933 Allen found, after a thorough examination of the judicial practice on
foreign state immunity in several states, that
a growing number of courts are restricting the immunity to instances in which the state
has acted in its official capacity as a sovereign political entity. The current idea that this
distinction is peculiar to Belgium and Italy must be enlarged to include Switzerland,
Egypt, Roumania, France, Austria and Greece.⁸
Although this unequivocal statement disregards the subtleties of reality—for one,
the situation before French courts was more complex than this⁹—the general
idea it conveys of a spreading of Belgian and Italian practice to other jurisdictions
at an early stage already, is accurate. The considerations of a Romanian court in
the 1920 case of Banque roumaine de commerce v État polonais, for example, can
indeed be seen to echo many of the views developed in the case law of the two
harbinger states. The court held as follows:
Considérant que tout État doit être considéré sous deux aspects comme conséquence de
ses besoins et de ses obligations: (a) l’État qui fait des actes publics, des actes de souverai-
neté, de gouvernement, jure imperii, conséquence des besoins politiques et (b) l’État qui
fait des actes civils, des actes de gestion, achète, vend, fait toute espèce de transactions jure
privato comme conséquence des grandes attributions et des exigences de l’État moderne,
cette dernière activité ayant pour effet que l’État ne se distingue pas d’un particulier;
le critérium de la distinction de tels actes étant de les considérer d’après leur nature et non
d’après le but qu’ils poursuivent.¹⁰
⁷ Cf for Belgium, L’Etat du Pérou v Kreglinger PB 1857–2–348 (Tribunal de commerce d’Anvers

and Cour de Bruxelles, 1857); Rau, Vanden Abeele et Cie v Duruty PB 1879–2–175 (Commercial
Tribunal Ostend, 1879); SA des Chemins de Fer liégeois-luxembourgeouis v l’Etat néerlandais PB
1903–I–294 (Cour de cassation, 1903). For Italy cf Morellet v Governo Danese Giu It 1883–I–125
(Corte di Cassazione di Torino, 1882); Guttieres v Elmilik 11 F It 1886–I–913 (Corte di Cassazione
di Firenze, 1886); Typaldos, Console di Grecia a Napoli v Manicomio di Aversa Giu It 1886–I–1–222
(Corte di Cassazione di Napoli, 1886). Belgian courts have applied absolute immunity in a few
exceptional cases. See P De Visscher and J Verhoeven, ‘L’immunité de juridiction de l’État étranger
dans la jurisprudence belge et le projet de convention du Conseil de l’Europe’, in L’ immunité de
juridiction et d’exécution des Etats (1969) 37, 38. Cf also EW Allen, The Position of Foreign States
before Belgian Courts (1929) 221.
⁸ EW Allen (1933) 301.
⁹ M Cosnard, La soumission des États aux tribunaux internes: Face à la théorie des immunités des
États (1996) 22. Dutch judicial practice was equally inconsistent, see H Lauterpacht (1951) 263.
¹⁰ Banque roumaine de commerce et de crédit de Prague v État polonais (1924) 19 RDIP 581
(Romania, Tribunal de commerce d’Ilfov, 1920) 582–3.
State Immunity 15
Lauterpacht, in his seminal critique of the absolute doctrine of immunity, attached

particular importance to the early and consistent acceptance of the restrictive the-
ory by the Mixed Courts of Egypt because of their international composition.¹¹
The Egyptian case of Monopole des Tabacs de Turquie v Régie Co-Intéressée des
Tabacs de Turquie exemplifies the gradual spreading of the ideas first developed in
Italian and Belgian courts. The court in this case ruled that
The jurisprudence of the Mixed Courts (like the jurisprudence of the Italian and Belgian
Courts) is fi xed in this sense, that immunity applies only to acts of sovereignty and does
not apply to acts of management (actes de gestion) as to which the foreign State has brought
its activities into the field of private rights.¹²
The question of the scope of foreign state immunity was a controversial subject
in academic writings at the end of the nineteenth and beginning of the twentieth
century. While eminent scholars like Anzilotti and Van Praag continued their
support of the rule of absolute state immunity, a growing group of scholars—
including Weiss and De Visscher—favoured a restrictive approach to the rule.¹³
Finally, it should be noted that at a very early stage, the restrictive theory was
reflected in scholarly efforts to codify the immunity rule. In the 1891 Resolution
of the Institut de Droit International certain proceedings against foreign states
were declared admissible. Inter alia, courts were held to have jurisdiction regard-
ing actions connected with a commercial or industrial establishment or rail-
way exploited in the territory of the forum state; actions arising out of contracts
concluded within that territory and actions for damages for a tort or quasi-tort
there committed.¹⁴ Also the report on the ‘Competence of Courts in Regard to
¹¹ H Lauterpacht (1951) 255.

¹² Monopole des Tabacs de Turquie and Another v Régie Co-Intéressée des Tabacs de Turquie 5
AD 123, case no 79 (Egypt, Mixed CA, 1930) 124. See for other Egyptian cases S Sucharitkul,
‘Immunities of Foreign States before National Authorities’ (1976–I) 149 RdC 87, 137;
H Lauterpacht (1951) 255; JY Brinton, ‘Suits against Foreign States’, (1931) 25 AJIL 50.
¹³ Cf for support of the rule of absolute immunity a.o.: L Van Praag, Juridiction et droit inter-
national public, La juridiction nationale d’après droit international public coutumier en temps de
paix (1915); D Anzilotti, ‘L’esenzione degli stati stranieri dalla giurisdizione’ (1910) 5 RDI 477;
A Chrétien, Principes de droit international public (1893) i 247; E Loening, Die Gerichtsbarkeit
über fremde Staaten und Souveräne (1903); E Nys, Le droit international: les principes, les théories, les
faits (1904) ii 340 ; J De Louter, Het stellig volkenrecht (1910) i 246–7; R Provinciali, L’ immunità
giurisdizionale degli stati stranieri (1933). And for support for the rule of restrictive immunity a.o.:
P Pradier-Fodéré, Traité de droit international public européen et américain suivant les progrès de
la science et de la pratique contemporaines (1906) iii no 1589; A Weiss, Traité élémentaire de droit
international privé (1886) v 94; A Weiss, ‘Compétence ou incompétence des tribunaux à l’égard
des États étrangers’ (1923–I) 1 RdC 521, 536ff; L Von Bar, The Theory and Practice of Private
International Law (2nd edn, 1892, trans by GR Gillespie); P Fiore, Nouveau droit international
public suivant les besoins de la civilisation moderne (1869, trans by P Pradier-Fodéré) i no 514; C De
Visscher, ‘Les Gouvernements étrangers en justice, Reconnaissance internationale et immunités’
(1922) 49 RDILC 300; N Wolfman, ‘Sovereigns as Defendants’ (1910) 4 AJIL 373.
¹⁴ Institut de Droit International, Projet de règlement international sur la compétence des
tribunaux dans les procès contre les Etats, souverains où chefs d’Etat étrangers (1891), (1889–92)
11 AIDI. Cf also League of Nations, Committee of Experts for the Progressive Codification of
International Law, Questionnaire no 11, ‘Competence of the Courts in Regard to Foreign States’,
Foreign States’ published by the Harvard Research Project in International Law
in 1932—while acknowledging that many of the suggested rules were de lege
ferenda—proposed a restrictive approach to the state immunity rule. The nucleus
of the report can be found in article 11 that provides as follows:
A State may be made a respondent in a proceeding in a court of another State when, in
the territory of such other State, it engages in an industrial, commercial, financial, or
other business enterprise in which private persons may there engage, or does an act there
in connection with such an enterprise wherever conducted, and the proceeding is based
upon the conduct of such enterprise or upon such an act.¹⁵
The 1926 Brussels Convention for the Unification of Certain Rules concerning
the Immunity of State-Owned Ships assimilated the position of state-owned ves-
sels engaged in trading activities to that of privately-owned merchant vessels.¹⁶
Article 3 makes an exception for
ships of war, Government yachts, patrol vessels, hospital ships, auxiliary vessels, supply
ships and other craft owned and operated by the State, and used at the time a cause of
action arises exclusively on Governmental and non-commercial service, and such vessels
shall not be subject to seizure, attachment or detention by any legal process, nor to judi-
cial proceedings in rem.
The convention received only 13 ratifications. It has however been used as a
model for a number of bilateral treaties and its substantive provisions have in fact
been applied by states not party to it.¹⁷ Moreover, the mere adoption of the draft
convention by the Brussels Conference on Maritime Law in 1926 evinces that the
restrictive theory was not confined to the practice of a limited number of dissi-
dent states and academic theory only, but was seriously discussed, and adopted—
albeit not finally ratified—in a body consisting of state representatives.
2.2.2 Prevalence of the Restrictive Doctrine

The idea that states can, under certain circumstances, be subjected to foreign jur-
isdiction gained ground rapidly in the second half of the twentieth century. It is
the 1950 Austrian case of Dralle v Republic of Czechoslovakia that is commonly
Report of the Sub-Committee (Rapporteur Matsuda) (1927), (1928 special supplement) 22 AJIL
117. The report recognized the existence of two conflicting views on the issue of the immunity of
foreign states acting in a private capacity (at 119). Although the report tended to favour the restrict-
ive approach, Matsuda emphasized that ‘it would be difficult to formulate any definite or precise
conclusion which could be used as the basis for a uniform arrangement to be concluded between
the Powers’ (at 125)—an observation not shared by commission member G Diena, 128–32.
¹⁵ Harvard Law School, Research in International Law (Reporter PC Jessup), Competence of
Courts in Regard to Foreign States, (1932 supplement) 26 AJIL 451, 597. The article knows the
following caveat: ‘The foregoing provision shall not be construed to allow a State to be made a
respondent in a proceeding relating to its public debt.’
¹⁶ See a.o. GM Badr, State Immunity: An Analytical and Prognostic View (1984) 41.
¹⁷ I Sinclair, ‘The Law of Sovereign Immunity, Recent Developments’ (1980–II) 167 RdC
113, 139.
State Immunity 17
hailed as the landmark of a new era. The Supreme Court, after a careful examin-
ation of the practice of various other states, famously stated that
[t]his survey shows that today it can no longer be said that jurisprudence generally recog-
nises the principle of exemption of foreign States in so far as concerns claims of a private
character, because the majority of courts of different civilized countries deny the immun-
ity of a foreign State, and more particularly because exceptions are made even in those
countries which today still adhere to the traditional principle that no State is entitled to
exercise jurisdiction over another State . . . ¹⁸
The court further stated that
[t]he classic doctrine of immunity arose at a time when all the commercial activities of
States in foreign countries were connected with their political activities . . . Today, the
position is entirely different; States engage in commercial activities and enter into com-
petition with their own nationals and foreigners. Accordingly, the classic doctrine of
immunity has lost its meaning and ratione cessante, can no longer be recognized as a rule
of international law.¹⁹
This observation critically bares the immediate circumstances that gave rise to
the rapid spreading of the restrictive theory at the time. The rise of state trad-
ing and the consequent increase of commercial disputes between states and indi-
viduals made the impossibility of holding foreign states accountable in domestic
proceedings an acute problem. Higgins appositely noted in this respect that
‘[t]he developments in State immunity have been a self-generated response to the
requirements of the contemporary commercial world and to notions of stability
and equity in the market place.’²⁰
The conversion of the common law countries to the restrictive approach
was a long time coming. The United States—enacting the Foreign Sovereign
Immunities Act in 1976—was the first to codify the restrictive immunity rule in
national legislation.²¹ Before that time US courts had commonly deferred to the
State Department in state immunity questions. Although the State Department
had in the 1952 Tate Letter expressed its intention to issue its suggestions as
regards immunity requests of foreign states on the basis of the restrictive doc-
trine, the implementation of that intent left something to be desired—to say the
least—and it was not until the 1976 Foreign Sovereign Immunities Act that the
doctrine was recognized as a rule of international law to be applied independ-
ently by the courts. The US example was followed by the UK,²² Singapore,²³
¹⁸ Dralle v Republic of Czechoslovakia 17 ILR 155 (Austria, S Ct, 1950) 161.

¹⁹ ibid 163.
²⁰ R Higgins, ‘Certain Unresolved Aspects of the Law of State Immunity’ (1982) 29 NILR
265, 265.
²¹ US, Foreign Sovereign Immunities Act 1976, Public Law 94–583, 90 Stat. 2891, reproduced
in (1976) 15 ILM 1388.
²² UK, State Immunity Act 1978, reproduced in (1978) 17 ILM 1123.
²³ Singapore, State Immunity Act 1979, reproduced in UN–Materials ST/LEG/SER.B.20, 28.
Pakistan,²⁴ South Africa,²⁵ Canada,²⁶ Australia,²⁷ and Argentina,²⁸ while the
courts of New Zealand,²⁹ Zimbabwe,³⁰ Kenya,³¹ and Ireland³² have applied the
restrictive theory in the absence of guidance by the legislature.³³
The practice in India deserves separate mention. Section 86.1 of the Code
of Civil Procedure provides that ‘[n]o Ruler of a foreign state may be sued in
any court otherwise competent to try the suit except without the consent of the
Central Government certified in writing by the Secretary of State’—and this
provision has been interpreted to apply to proceedings against foreign states as
well.³⁴ The Supreme Court has admitted in Mirza Ali Akbar Kashani v United
Arab Republic that ‘the effect of s. 86(1) is to modify to a certain extent the
doctrine of immunity recognised by International Law’.³⁵
At first blush, it may seem that the executive has full discretion in the mat-
ter. Indian courts do however exercise a certain degree of control on the reason-
ableness of the executive decision in specific cases. The case of Harbhajan Singh
Dhalla v Union of India concerned a complaint by an Indian citizen who had
failed to obtain permission to sue Algeria with regard to unsettled bills in respect
of maintenance work undertaken by him at the Algerian Embassy and the resi-
dence of the Algerian ambassador.³⁶ The court, after a critical discussion of the
²⁴ Pakistan, State Immunity Ordinance 1981, reproduced in UN–Materials ST/LEG/

SER.B.20, 20.
²⁵ South Africa, Foreign States Immunity Act 1981, reproduced in UN–Materials ST/LEG/
SER.B/20, 34.
²⁶ Canada, State Immunity Act 1982, reproduced in (1982) 21 ILM 798.
²⁷ Australia, Foreign Sovereign Immunities Act 1985, reproduced in (1986) 25 ILM 715.
²⁸ Argentina, La Ley 24.488, Immunidad Jurisdiccional de los Estados Extranjeros ante los
Tribunalos Argentinos (1995), reproduced in A Dickinson, R Lindsay and JP Loonan (eds), State
Immunity, Selected Materials and Commentary (2004).
²⁹ Governor of Pitcairn Islands v Sutton [1995] 1 NZLR 426 (New Zealand, CA, 1994); 104
ILR 509.
³⁰ Barker McCormac (Private) Ltd v Government of Kenya 84 ILR 18 (Zimbabwe, S Ct, 1983).
³¹ Minister of Defence of Government of the United Kingdom v Joel Ndegwa, 103 ILR 235 (Kenya,
CA, 1983).
³² Government of Canada v The Employment Appeals Tribunal and Burke 95 ILR 467 (Ireland,
S Ct, 1992).
³³ Several courts have moreover declared that the restrictive theory applied regardless of the
national legislation, cf eg I Congreso del Partido [1983] 1 AC 244 (UK, HL, 1981); Inter-Science
Research and Development Services Ltd v Republica Popular of Moçambique 64 ILR 689 (South Africa,
S Ct Transvaal Provincial Division, 1979); Kaff raria Property Co v Government of the Republic of
Zambia United Nations, Materials on Jurisdictional Immunities of States and their Property
(1982), ST/LEG/SER.B/20 (South Africa, S Ct Eastern Cape Division, 1980); Zodiak International
Products Inc v Polish People’s Republic 64 ILR 51 (Canada, Quebec CA, 1977); Government of
the Democratic Republic of the Congo v Venne 64 ILR 24 (Canada, S Ct, 1972); Ferranti-Packard
Ltd v Cushman Rentals Ltd 64 ILR 63 (Canada, Ontario High Court of Justice, 1980); Re Royal
Bank of Canada and Corriveau et al 64 ILR 69 (Canada, Ontario High Court, 1980); Amanat-
Khan v Fredson Travel Int (No 2) 64 ILR 734 (Canada, High Court of Ontario, 1982); Qureshi v
Union of Soviet Socialist Republics 64 ILR 585 (Pakistan, S Ct, 1981).
³⁴ Mirza Ali Akbar Kashani v United Arab Republic 64 ILR 489 (India, S Ct, 1965).
³⁵ ibid 502.
³⁶ Harbhajan Singh Dhalla v Union of India 92 ILR 530 (India, S Ct, 1986).
State Immunity 19
old absolute immunity concept based on the dignity of the state, proceeds to an
assessment of both the nature of the claim of the individual as well as the deci-
sion of the executive to refuse permission to subject the foreign state to judicial
scrutiny in respect of that claim. The individual, the court reasoned, has a consti-
tutional right to carry on his business and carry on trade and the claim presented
to the executive was not frivolous. In cases like this, it continued, it is difficult to
see what the reasons for refusal could be since the exercise of jurisdiction ‘would
be in conformity with the principles of international law as recognised as part of
our domestic law and in accordance with our Constitution and human rights,
the power given to the central Government must not be exercised arbitrarily or
on whimsical grounds but upon proper reasons and grounds’. The court added
that such exercise of jurisdiction would moreover ‘be in consonance with human
rights’.³⁷ In what may be a barely hidden expression of discontent with the Indian
situation the court emphasized that assessment of immunity questions is not nor-
mally a power of governments but of courts. This power, the court stressed ‘must
be exercised in accordance with the principles of natural justice and in conson-
ance with the principles of natural justice and in consonance with the principle
that reasons must appear from the order.’³⁸ Thus, the power of the Indian execu-
tive in state immunity matters is practically reduced to a paper tiger.
The prevalence of the restrictive approach is reflected in several conventions
and the work of international learned bodies. The European Convention on State
Immunity 1972, for long the only comprehensive multilateral instrument in force
dealing with state immunity, is based on a restrictive approach to the rule,³⁹ as
is the UN Convention on Jurisdictional Immunities of States and their Property
that opened for ratification in January 2005.⁴⁰ A similar approach is found in sev-
eral draft conventions and resolutions on state immunity, like the Inter-American
Draft Convention on Jurisdictional Immunity of States,⁴¹ the Resolution on
State Immunity of the Institut de Droit International,⁴² the International Law
Association’s Draft Articles for a Convention on State Immunity,⁴³ and the
³⁷ ibid 536–7.
³⁸ ibid 538.
³⁹ European Convention on State Immunity and Additional Protocol (1972), reproduced in
(1972) 11 ILM 470. The Convention entered in force on 11 June 1976 and is, at the time of writing
this study, ratified by a mere eight states.
⁴⁰ UN Convention on Jurisdictional Immunities of States and their Property (2004), adopted
by GA Resolution 59/38 (2004) based on the ILC Draft Articles mentioned in n 44 below.
⁴¹ Inter-American Judicial Committee, Draft Convention on Jurisdictional Immunity of States
(1983).
⁴² Institut de Droit International, Resolution on Contemporary Problems Concerning the
Jurisdictional Immunity of States (1992), (1992) 64–II AIDI 267.
⁴³ International Law Association, Draft Articles for a Convention on State Immunity Report
of the Sixtieth Conference (1982), 5ff and 325ff as revised by the Final Report on Developments in
the Field of State Immunity and Proposal for a Revised Draft Convention on State Immunity for
the ILA Buenos Aires Conference in 1994, Report of the Sixty-sixth Conference (1994) 452ff.
International Law Commission’s Draft Articles on Jurisdictional Immunities of
States and their Property.⁴⁴
Residues of the rule of absolute state immunity are still found in several
legal systems—with Russia and China as conspicuous examples.⁴⁵ However,
with the large majority of states accepting the rule of restrictive state immun-
ity it clearly can not be said that international law requires states to grant other
states immunity from their jurisdiction under all circumstances. As the German
Bundesverfassungsgericht aptly put it in the 1963 Claim against the Empire of Iran
case:
From the practice of the courts it can no longer be deduced . . . that the granting of unre-
stricted immunity can still today be regarded as a usage followed by the great majority of
States in the belief that it is legally obligatory.⁴⁶
The application of the restrictive theory in practice is far from uniform. The
demarcation problems in the application of the restrictive rule are troublesome
not only for courts in practice but also—as we will see below—for the develop-
ment of a cogent theory. Yet the fact that international law clearly requires states
to grant such immunity in some cases but not in others allows the conclusion that
a restrictive rule of foreign state immunity prevails.⁴⁷
So how must the early Belgian and Italian case law that heralded the contours
of an immunity concept, as it was to eventually prevail, be interpreted? Did these
states at the time dissent from an otherwise widely accepted and firmly established
rule of absolute state immunity? In 1925 an Italian court asserted that they did
not. The court noted that the restrictive immunity rule applied by Italian courts
did not violate a rule of international law since the discord between the judicial
authorities of various states should be seen to demonstrate that a generally recog-
nized and binding norm was lacking.⁴⁸ The view that international law never did
require states to grant other states an absolute immunity from their adjudicative
⁴⁴ International Law Commission, ILC Draft Articles on Jurisdictional Immunities of States

and their Property (1991), YBILC 1991 ii (part two) 13.
⁴⁵ Cf also Kramer Italo Limited v Government of Kingdom of Belgium; Embassy of Belgium 103
ILR 299 (Nigeria, CA, 1988). In Japan the absolute immunity rule was established in the 1928
Matsuyama v Republic of China case (4 AD 168, Great Court of Judicature). Only very recently
Japanese courts have started indicating support for the restrictive approach to the rule, see espe-
cially Yamaguchi v United States (S Ct, 2002), discussed by M. Tomonori, ‘Case Note on Yamagughi
v United States’ (2003) 97 AJIL 406. Cf Y Iwasawa, ‘Japan’s Interactions with International Law:
The Case of State Immunity’ in N Ando (ed), Japan and International Law: Past, Present and Future
(1999) 123.
⁴⁶ Claim against the Empire of Iran Case 45 ILR 57 (Federal Republic of Germany, Federal
Constitutional Court, 1963) 73.
⁴⁷ Cf H Fox, The Law of State Immunity (2002) 257; I Pingel-Lenuzza, Les immunités des Etats en
droit international (1997) 359; M Cosnard (1996) 24.
⁴⁸ Governo Francese v Serra and C v Ceretti ed altri (1925) 17 RDI 540 (Italy, Appello Genova,
1925) 543.
State Immunity 21
jurisdiction finds more and more support in doctrine.⁴⁹ A closer look at the early
case law in the United States and the United Kingdom further corroborates this
view. The first hundred fifty years of state immunity practice in these countries
is muddled by a mix up of distinct immunity concepts, the influence of constitu-
tional principles regarding the separation of powers, and the disabling grip of the
stare decisis rule.
2.2.3 A Closer Look at Early Absolute Tendencies

A brief discussion of the development of the absolute immunity rule in two
conspicuously relevant states, the United States—where the rule allegedly ori-
ginates—and the United Kingdom—where the rule proved particularly imper-
vious to changing socio-economic circumstances—qualifies the persistent idea
that the common law resolutely embraced the absolute state immunity rule from
the beginning of the nineteenth century onwards. No attempt is made to give
a full overview of the intricate history of US and UK state immunity jurispru-
dence. Only those cases have been selected that allow a sketch of some of the
features that characterized the development of the rule in those countries.
2.2.3.1 The United States

The 1926 decision of the US Supreme Court in Berizzi Bros v SS Pesaro, uphold-
ing the immunity of a trading vessel owned by the Italian government, cited The
Schooner Exchange v M’Faddon as precedent for the theory of absolute immunity
of foreign states from the jurisdiction of US courts.⁵⁰ The court held that the
principles laid down in The Schooner Exchange
are applicable alike to all ships held and used by a government for a public pur-
pose . . . when, for the purpose of advancing the trade of its people or providing revenue
for its treasury, a government acquires, mans, and operates ships in the carrying trade,
they are public ships in the same sense that warships are.⁵¹
The reference to the public purpose of the activities the Pesaro was engaged in
should not be seen as a serious qualification of the absolute theory since it was
held that
there is no international usage which regards the maintenance and advancement of
the economic welfare of a people in time of peace as any less a public purpose than the
maintenance and training of a naval force.⁵²
⁴⁹ See eg I Pingel-Lenuzza (1997) 135; M Byers, ‘Al-Adsani v. Government of Kuwait and

Others’ (1996) 67 BYIL 537; OJ Lissitzyn, ‘Sovereign Immunity as a Norm of International Law’
in Essays in Honour of Philip Jessup (1972) 188, 190; H Steinberger, ‘Zur Rechtsprechung des
Bundesverfassungsgerichts zu Fragen der Immunität fremder Staaten’ in B Börner, H Jahrreiß,
K Stern (eds), Einigkeit und Recht und Freiheit: Festschrift für Karl Carstens (1984) ii 889, 901.
⁵⁰ Berizzi Bros v SS Pesaro 271 US 562 (US, S Ct, 1926).
⁵¹ ibid 574.
⁵² ibid.
The fact that the Pesaro was a merchant vessel engaged in the common carriage
of merchandise for hire—like olive oil and silk—corroborates the trivial nature
of the qualification. The reliance on The Schooner Exchange in Berizzi Bros has
haunted the 1812 decision of the Supreme Court ever since: the roots of the abso-
lute immunity doctrine are often traced back to it.⁵³
This interpretation of The Schooner Exchange provides the absolute theory with
a more solid basis than it actually has. The facts of this illustrious case were reca-
pitulated in the introduction to this section. It is thought time that the two or
three passages of The Schooner Exchange that are still widely quoted as the earliest
expressions of the rule of state immunity, are considered within the broader con-
text of Chief Justice Marshall’s argumentation. In fact, the reasoning employed
to support the non-exercise of jurisdiction was more akin to the theory under-
lying diplomatic immunity, foreign head of state immunity, and the immunity
of foreign armed forces when present on the territory of the forum state, or to the
rule of immunity from execution, than to a more principled rule of non-exercise
of jurisdiction over disputes involving foreign state defendants. Moreover, it can
be questioned whether even within the limited context of in rem admiralty pro-
ceedings the case forms a solid precedent for an absolute immunity of all ships in
possession of foreign states.
The case concerned an action in rem against property in possession of the
French sovereign that had entered the territorial jurisdiction of the United States.
Marshall emphasized that
[t]he jurisdiction of the nation within its own territory is necessarily exclusive and abso-
lute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriv-
ing validity from an external source, would imply a diminution of its sovereignty to the
extent of the restriction, and an investment of that sovereignty to the same extent in that
power which could impose such restriction. All exceptions, therefore, to the full and
complete power of a nation within its own territories, must be traced up to the consent of
the nation itself. They can flow from no other legitimate source.⁵⁴
States, however, have agreed to restrict the exercise of their territorial jurisdiction
under several circumstances. As Marshall formulated it:
The world being composed of distinct sovereignties, possessing equal rights and equal
independence, whose mutual benefit is promoted by intercourse with each other, and by
an interchange of those good offices which humanity dictates and its wants require, all
sovereigns have consented to a relaxation in practice, in cases under certain peculiar cir-
cumstances, of that absolute and complete jurisdiction within their respective territories
which sovereignty confers. . . .
⁵³ See K C Randall, Federal Courts and the International Human Rights Paradigm (1990) 91;
J W Dellapenna, Suing Foreign Governments and their Corporations (1988) 3, fn 12; Doe v United
States 860 F. 2d 40 (US, Ct of Apps (2nd Cir), 1988) 44. Cf also C De Visscher (1922) 312.
⁵⁴ The Schooner Exchange v M’Faddon (US, 1812) 136.
State Immunity 23
This full and absolute territorial jurisdiction being alike the attribute of every sover-
eign, and being incapable of conferring extra-territorial power, would not seem to con-
template foreign sovereigns nor their sovereign rights as its objects. One sovereign being
in no respect amenable to another; and being bound by obligations of the highest char-
acter not to degrade the dignity of his nation, by placing himself or its sovereign rights
within the jurisdiction of another, can be supposed to enter a foreign territory only under
an express license, or in the confidence that the immunities belonging to his independent
sovereign station [sic], though not expressly stipulated, are reserved by implication, and
will be extended to him. This perfect equality and absolute independence of sovereigns,
and this common interest impelling them to mutual intercourse, and an interchange of
good offices 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 territorial jurisdic-
tion, which has been stated to be the attribute of every nation.⁵⁵
Marshall identified the immunity of diplomats, personal sovereigns and armed
forces that are admitted to the territory of a foreign state as such exceptions
to the normal exercise of territorial jurisdiction. The entry into US territory of
a foreign warship, he argued, should equally be assumed to occur in confidence
that immunity attaches to it. Vattel wrote that
[i]t is impossible to conceive . . . that a prince who sends an ambassador or any other min-
ister can have any intention of subjecting him to the authority of a foreign power; and
this consideration furnishes an additional argument, which completely establishes the
independency of a public minister. If it cannot be reasonably presumed that his sover-
eign means to subject him to the authority of the prince to whom he is sent, the latter, in
receiving the minister, consents to admit him on the footing of independency; and thus
there exists between the two princes a tacit convention, which gives a new force to the
natural obligation.⁵⁶
Marshall considered that it is
[e]qually impossible . . . to conceive, whatever may be the construction as to private ships,
that a prince who stipulates a passage for his troops, or an asylum for his ships of war
in distress, should mean to subject his army or his navy to the jurisdiction of a foreign
sovereign. And if this cannot be presumed, the sovereign of the port must be considered
as having conceded the privilege to the extent in which it must have been understood to
be asked.⁵⁷
In this respect, Marshall argued, public armed ships must be clearly distinguished
from private trading vessels entering foreign territory. He explained that
[w]hen private individuals of one nation spread themselves through another as business
or caprice may direct, mingling indiscriminately with the inhabitants of that other, or
⁵⁵ ibid 136–7.
⁵⁶ Quoted ibid 143 (the quotation is taken and translated from Le droit de gens ou principes de
la loi naturelle, appliqués à la conduite & aux aff aires des nations & des souverains (1758), Book IV,
Ch VII, § 92).
⁵⁷ ibid.
when merchant vessels enter for the purposes of trade, it would be obviously inconveni-
ent and dangerous to society, and would subject the laws to continual infraction, and the
government to degradation, if such individuals or merchants did not owe temporary and
local allegiance, and were not amenable to the jurisdiction of the country. Nor can the
foreign sovereign have any motive for wishing such exemption. His subjects thus passing
into foreign countries, are not employed by him, nor are they engaged in national pur-
suits. Consequently there are powerful motives for not exempting persons of this descrip-
tion from the jurisdiction of the country in which they are found, and no one motive
for requiring it. . . . But in all respects different is the situation of a public armed ship.
She constitutes a part of the military force of her nation; acts under the immediate and
direct command of the sovereign; is employed by him in national objects. He has many
and powerful motives for preventing those objects from being defeated by the interfer-
ence of a foreign state. Such interference cannot take place without affecting his power
and his dignity. The implied license, therefore, under which such vessel enters a friendly
port, may reasonably be construed, and it seems to the court, ought to be construed, as
containing an exemption from the jurisdiction of the sovereign, within whose territory
she claims the rights of hospitality.⁵⁸
It is important to note that the distinction between ships of war and private ships
conceded in the judgment is not indicative of a preference of the restrictive over
the absolute immunity theory. Marshall did discuss—though not explicitly
approve—the arguments of Van Bynkershoek as regards the private property of
foreign princes. The judge considered that
there is a manifest distinction between the private property of the person who happens to
be a prince, and that military force which supports the sovereign power, and maintains
the dignity and the independence of a nation. A prince, by acquiring private property in
a foreign country, may possibly be considered as subjecting that property to the territor-
ial jurisdiction; he may be considered as so far laying down the prince, and assuming the
character of a private individual; but this he cannot be presumed to do with respect to
any portion of that armed force which upholds his crown, and the nation he is entrusted
to govern.⁵⁹
However, the distinction between a prince acting (or in the above quotation
‘possessing’) in his private capacity, rather than in his sovereign capacity does
not translate well to the sovereign state as abstract institution. Yet, since the
terminology of the public–private distinction has shaped the development of
the restrictive immunity regime, early case law concerning personal foreign
sovereigns may confuse the casual observer. Where the distinction formulated
by Van Bynkershoek referred to a tangible and ascertainable reality determining
the applicability of immunity rules protecting certain individuals, in the field of
state immunity it refers to a normative qualification at the basis of the substance
of the rule, hence determining the outcome of its application.
⁵⁸ bid 144.
⁵⁹ ibid 144–5. It is noted that counsel for France did concede this point, cf 123.
State Immunity 25
Several commentators have disregarded this difference. A brief excursion into

UK practice illustrates the problematic nature of the argument best. In the 1844
case of Duke of Brunswick v King of Hanover it was held that
a foreign sovereign, coming into this country, cannot be made responsible here for an
act done in his sovereign character in his own country; whether it be an act right or
wrong . . . the courts of this country cannot sit in judgment upon an act of a sovereign,
effected by virtue of his sovereign authority abroad, an act done not as British subject, but
supposed to be done in the exercise of his authority vested in him as sovereign
and that the acts under consideration
could not have been done, and . . . were not done, in any private character, but were done,
whether right or wrong, in the character of the sovereign of a foreign state.⁶⁰
In a similar vein, the capacity in which the acts were committed was held to be
decisive in the case of De Haber v Queen of Portugal. The court concluded that
an action cannot be maintained in an English court against a foreign potentate for any-
thing done or omitted to be done by him in his public capacity as representative of the
nation of which he is the head . . . To cite a foreign potentate in a municipal court, for any
complaint against him in his public capacity, is contrary to the law of nations and an
insult which he is entitled to resent.⁶¹
In part on the basis of these cases Lewis observed that it
is of particular interest . . . that the initial ideas outlined in England at that time,
although cast into limbo for a hundred years or so while the common law followed a
most unsatisfactory path, getting itself all the while into greater difficulties and not a
little disrepute, emerged triumphant only recently, thanks to the radical action of the
legislature . . . Although it had been recognized in the middle of the 19th century that
a foreign sovereign enjoyed immunity in respect of his public acts, and was entitled to
assert immunity in respect of State property destined to public uses, the position had
been reserved in respect of private transactions.⁶²
In a similar vein, Marshall’s endorsement of the distinction devised by Van
Bynkershoek between the private and public character of a prince has been inter-
preted to reflect support for the restrictive theory of state immunity.⁶³
However, we only have to place these judicial considerations in the light of,
for example, the French cases of L’Empereur d’Autriche v Lemaitre or Isabelle de
Bourbon v Mellerio to recognize their limited scope.⁶⁴ L’Empereur d’Autriche v
⁶⁰ Duke of Brunswick v King of Hanover (1848) 2 HLC 1 (UK, HL, 1848) 17 and 18.
⁶¹ The Haber v Queen of Portugal 17 QB 171 (UK, Court of Queen’s Bench, 1851).
⁶² CJ Lewis, State and Diplomatic Immunity (3rd edn, 1990) 16. See for a similar interpretation
GM Badr (1984) 15; C De Visscher (1922) 302.
⁶³ Cf eg GM Badr (1984) 10–13.
⁶⁴ L’Empereur d’Autriche v Lemaitre (1874) 1 JDI 32 (France, Cour de Paris, 1872); A-C Kiss,
Répertoire de la pratique française en matière de droit international public (1965) iii 269; Isabelle de
Bourbon v Mellerio (1874) 1 JDI 32 (France, Tribunal Civil de la Seine, 1872); A-C Kiss, Répertoire
Lemaitre concerned a case against the emperor of Austria, as heir of the emperor
of Mexico Maximilien, regarding a contract concluded by the latter for the
commission of decorations destined to honour persons for their merit to public
services. The court refused to exercise jurisdiction since
il est de principe, à raison de l’indépendance réciproque des Etats, que les tribunaux
français n’ont pas juridiction pour juger les engagements contractés par les souverains
étrangers agissant comme chefs d’Etat au titre de puissance publique.⁶⁵
In Isabelle de Bourbon v Mellerio immunity was refused to the former queen of
Spain in a dispute concerning the purchase of jewellery for personal use. The
court considered that she would only have enjoyed immunity from French jur-
isdiction if she had purchased the items ‘en sa qualité de personne souveraine
et au compte de Trésor espagnol’.⁶⁶ Notably, the nature of the act engaged in
was irrelevant to the inquiry. Surely the purchase of decorations, or jewellery by
a state—and hence with state funds—would qualify as a private act under the
restrictive theory of state immunity. What are now considered private acts for
state immunity purposes could very well qualify as public acts in the public—
private distinction applied in cases concerning personal foreign sovereigns.
It is probable that trade engaged in by the state as an abstract entity with profits
flowing to the treasury rather than to the private funds of ‘the person that happens
to be the prince’ was not yet a familiar concept. When such an act was at issue clearly
the personal sovereign had acted in his personal capacity and for his own benefit.
Also the considerations of Sir Robert Phillimore several decades later, in the
1873 case The Charkieh should be viewed in that perspective. He argued that
[n]o principle of international law, and no decided case, and no dictum of jurists of which
I am aware, has gone so far as to authorize a sovereign prince to assume the character of
a trader, when it is for his benefit; and when he incurs an obligation to a private subject
to throw off, if I may so speak, his disguise, and appear as a sovereign, claiming for his
own benefit, and to the injury of a private person, for the first time, all the attributes of
his character.⁶⁷
However, the ship in question was owned by the Khedive of Egypt and the profits
from the commercial carriage of goods the ship was engaged in, most likely the
personal property of the Khedive.
de la pratique française en matière de droit international public (1965) iii 270. Cf also Petau v
Honore de Grimaldi, Prince de Monaco A-C Kiss, Répertoire de la pratique française en matière de
droit international public (1965) iii 269 (France, Cour de Paris, 1810).
⁶⁵ L’Empereur d’Autriche v Lemaitre (1874) 1 JDI 32 (France, Cour de Paris, 1872); A-C Kiss,
Répertoire de la pratique française en matière de droit international public (1965) iii 269.
⁶⁶ Isabelle de Bourbon v Mellerio (1874) 1 JDI 32 (France, Tribunal de la Seine, 1872); A-C Kiss,
Répertoire de la pratique française en matière de droit international public (1965) iii 270.
⁶⁷ The Charkieh LR 4A & E 59 (UK, High Court of Admiralty, 1873) 99. It has to be noted
though that the case was principally decided on the grounds that the status of the defendant did
not entitle him to claim immunity in the first place.
State Immunity 27
Coming back to our discussion of The Schooner Exchange v M’Faddon it is

noted that the notion of a merchant ship employed by a foreign sovereign state
seems alien to the decision in The Schooner Exchange. Chief Justice Marshall
steered his argumentation around the immunity of this latter category—whether
this is the result of clever navigation or oblivion as to the prickliness of the issue
remains unclear.
Some commentators have held that because the governing principle of The
Schooner Exchange was the full jurisdiction of the territorial state rather than the
immunity of the foreign state the decision forms a precedent for the restrictive
rather than for the absolute immunity theory.⁶⁸ This, it is argued here, is reading
too much into Chief Justice Marshall’s words. In fact, The Schooner Exchange is
a murky precedent for the absolute as well as the restrictive immunity rule. The
reasoning of the decision was tailored to the specific circumstances of the phys-
ical entrance of an element of a foreign state’s sovereign structure into the terri-
tory of a foreign state. The immunity of foreign armed ships was modelled on
the immunity of foreign diplomats and foreign heads of state present in the terri-
tory of the forum state. Moreover, the nature of in rem proceedings conflates the
question of immunity from jurisdiction with that of immunity from execution.
The immunity of the property of a foreign state from execution is, in principle,
unrelated to the question of immunity of the foreign state in a dispute in which
that property may be implicated. The facts and nature of the claim at issue in The
Schooner Exchange together compel the conclusion that the case is no precedent
for claims against foreign state defendants in personam as in an action in contract
or tort.
The defendants had urged the court to dismiss the case on more principled
grounds. They had submitted, inter alia, that no jurisdiction may be exercised
over the rights of foreign sovereigns because sovereigns are equal and a sovereign
‘is the sole arbiter of his own rights. He acknowledges no superior but God alone.
To his equals, he shows respect, but not submission.’⁶⁹ Marshall acknowledged
the possible weight of these arguments but explicitly stated that they were not at
the basis of his decision:
The arguments in favor of this opinion which have been drawn from the general inability
of the judicial power to enforce its decisions in cases of this description, from the con-
sideration that the sovereign power of the nation is alone competent to avenge wrongs
committed by a sovereign, that the questions to which such wrongs give birth, are rather
questions of policy than of law, that they are for diplomatic, rather than legal discussion,
are of great weight, and merit serious attention. But the argument has already been drawn
to a length, which forbids a particular examination of these points.⁷⁰
⁶⁸ G M Badr (1984) 13; See also H Lauterpacht (1951) 228; I Sinclair (1980) 122.
⁶⁹ The Schooner Exchange v M’Faddon (US, 1812) 134.
⁷⁰ ibid 146.
The Schooner Exchange was based on the narrow argument that the physical
entrance in foreign territory of a sovereign, his representatives, and his property
is supposed to take place under (implied) license of the local sovereign and in
the confidence that the normal territorial jurisdiction in regard of them will be
waived.
The case of Berizzi Bros v SS Pesaro equally concerned in rem proceedings
against property of a foreign state physically present in US territory. Unlike the
Exchange, however, the Pesaro was not a foreign warship but was engaged in
commercial trade. The court made a point of emphasizing that the ship was
nevertheless employed by the Italian state rather than by its sovereign:
the vessel, when arrested, was owned, possessed, and controlled by the Italian govern-
ment, was not connected with its naval or military forces, was employed in the carriage
of merchandise for hire between Italian ports and ports in other countries including the
port of New York, and was so employed in the service and interest of the whole Italian
nation, as distinguished from any individual member thereof, private or official.⁷¹
According to the court, the fact that The Schooner Exchange did not contain a
reference to merchant ships owned and operated by a foreign government was
not of special significance, for in 1812, when the decision was given, merchant ships were
operated only by private owners, and there was little thought of governments engaging
in such operations. That came much later. The decision in The Exchange v. M’Faddon
therefore cannot be taken as excluding merchant ships held and used by a government
from the principles there announced. On the contrary, if such ships come within those
principles, they must be held to have the same immunity as war ships . . .⁷²
Several lower courts had underlined that ‘[i]t is not the ownership or the exclu-
sive possession of the instrumentality by the sovereign, but its appropriation and
devotion to [public] service, that exempts it from judicial process.’⁷³ The Supreme
Court decided in Berizzi Bros v SS Pesaro that a ship engaged in commercial trade
could nevertheless be possessed by a foreign government and appropriated to pub-
lic service. The decision was formally not foreclosed by The Schooner Exchange.
What can be said safely though, is that Berizzi Bros v SS Pesaro is at odds with the
spirit of Marshall’s judgement. It is not clear why the non-amenability to jurisdic-
tion of foreign publicly-owned merchant vessels that enter a territory for the pur-
pose of trade and ‘mingle indiscriminately’ with the inhabitants of the territorial
state is any less ‘inconvenient and dangerous to society’ than an entrance under
similar conditions from a privately-owned merchant ship, when this difference
will often not be obvious from outward appearances.⁷⁴
⁷¹ Berizzi Bros v SS Pesaro (US, 1926) 570.

⁷² ibid 573–4.
⁷³ The Roseric 254 F 154 (US, DC for the District of New Jersey, 1918) 161–2. Cf also The
Attualità 238 F 909 (US, Ct of Apps (4th Cir), 1916).
⁷⁴ Cf the case of The Attualità, ibid 911, where the court emphasized that there were ‘many
reasons which suggest the inexpediency and impolicy of creating a class of vessels for which no one
State Immunity 29
In anticipation of the discussion of the early UK jurisprudence below, it is

interesting to note that the Supreme Court distinguished the reasons under-
lying its decision from those relied on by the UK courts. With reference to The
Parlement Belge the court considered:
Sometimes it is said of that decision that it was put on the ground that a libel in rem under
the British admiralty practice is not a proceeding solely against property, but one directly
or indirectly impleading the owner—in that instance the Belgian government. But this
latter was given as an additional and independent ground, as is expressly stated in the
opinion . . .⁷⁵
Hence, the Supreme Court made a point of distancing itself from the sanction
given by the UK courts to the more principled approach advanced by the defend-
ants in The Schooner Exchange.
The acceptance of the absolute theory of immunity as regards admiralty pro-
ceedings against public ships in Berizzi Bros v SS Pesaro already carried in it the
seeds for its downfall. When the Italian government requested the Department
of State in 1921 to prevent the arrest of the Pesaro on immunity grounds, the
Department replied that it was ‘of the opinion that vessels owned by a state and
engaged in commerce are not entitled, within the territorial waters of another
state, to the immunity accorded to vessels of war, and that notwithstanding such
ownership these vessels are subject to the local jurisdiction to the same extent as
other merchant vessels’.⁷⁶ When the case came before the courts, the Department
of State also refused to issue a certificate that the vessel was immune from process.
When the judge of first instance inquired in their position they replied that ‘[i]t is
the view of the Department that government-owned merchant vessels . . . should
not be regarded as entitled to the immunities accorded public vessels of war. The
Department has not claimed immunity for American vessels of this character.’⁷⁷
Although the court did not follow the Department’s reasoning—in absence of
clear legislative change it felt itself bound to apply the absolute immunity rule—
the growing opposition of the executive can be seen to have shaped the course
of subsequent court practice regarding immunity claims. Gradually, US courts
is in any way responsible.’ In particular, it mentioned the limited number of ambassadors, their
‘responsible character’ and the ‘dignity’ of the sovereign, guarantees that according to the court did
not apply to charter ships.
⁷⁵ Berizzi Bros v SS Pesaro (US, 1926) 575. See for a discussion of The Parlement Belge p 35–6 below.
⁷⁶ GH Hackworth, Digest of International Law (1941) ii 437.
⁷⁷ The Pesaro 277 F 473 (US, DC for the Southern District of New York, 1921) 479–80, fn 3.
The State Department had already, in 1918, addressed a communication to the Attorney-General
of the United States stating that ‘where [government-owned] vessels were engaged in commercial
pursuits, they should be subject to the obligations and restrictions of trade, if they were to enjoy
its benefits and profits’. It was held that ‘when a Sovereign enters into business, he submits himself
to the conditions thereof ’ and ‘if immunity were granted, American citizens as well as foreign-
ers would be left without recourse in the Courts of just such claims as the might have against
the vessels concerned . . . their only means for obtaining satisfaction would be through political
channels—either through Congress, or through diplomacy’, GH Hackworth (1941) ii 429.
started abdicating their role in determining foreign state immunity claims, defer-
ring to the ‘suggestions’ of immunity filed by the executive.⁷⁸ In the 1943 case Ex
parte Peru⁷⁹ the Supreme Court held that
[u]pon recognition and allowance of the claim by the State Department and certification
of its action presented to the court by the Attorney General, it is the court’s duty to sur-
render the vessel and remit the libelant to the relief obtainable through diplomatic nego-
tiations . . . This practice is founded upon the policy, recognized both by the Department
of State and the courts, that our national interest will be better served in such cases if
the wrongs to suitors, involving our relations with a friendly power, are righted through
diplomatic negotiations rather than by the compulsions of judicial proceedings.⁸⁰
It concluded that ‘[t]he certification and the request that the vessel be declared
immune must be accepted by the courts as a conclusive determination by the
political arm of the Government.’⁸¹ The influence of the diverging views of the
executive on the concept of foreign state immunity can arguably already be seen
in the 1945 case Republic of Mexico v Hoff man.⁸² Although the facts of the case
resemble those of the Pesaro, the declination of the State Department to file a
suggestion of immunity was in fact followed by a refusal of the Supreme Court to
grant immunity. The court famously considered that ‘[i]t is . . . not for the courts
to deny an immunity which our government has seen fit to allow, or to allow an
immunity on new grounds which the government has not seen fit to recognize.’⁸³
In an attempt to smooth the appearance of a divergence in interpretation of sub-
stantive principles the court relied on the difference between title and possession.
It distinguished the case before it from Berizzi Bros v SS Pesaro observing that
although the ship was owned by Mexico it was not actually in its possession.⁸⁴
In his interesting concurring opinion Justice Frankfurter however alluded to the
possibility of regarding the decision of the court as ‘an implied recession’ from the
Pesaro decision.⁸⁵ And Lauterpacht, discussing the implications of this case, cau-
tiously observed that ‘[i]t is possible that instead of choosing the drastic method
⁷⁸ A ‘suggestion’ is a formal document that can be fi led by one of the parties to the case, by
a consular or diplomatic representative of an interested foreign power, or in fact by the State
Department, and sets out and comments on the facts at issue. Cf AB Lyons, ‘The Conclusiveness
of the “Suggestion” and Certificate of the American State Department’ (1947) 24 BYIL 116 for a
useful overview of both procedural and substantive issues regarding the fi ling of suggestions by the
US State Department.
⁷⁹ Ex p Republic of Peru 318 US 578 (US, S Ct, 1943).
⁸⁰ ibid 588–9.
⁸¹ ibid 589. Cf already The Navemar 303 US 68 (US, S Ct, 1938), 74–5; 9 AD 176, case no
68. In the Schooner Exchange v M’Faddon the consideration that ‘there seems to be a necessity for
admitting that the fact might be disclosed to the court by the suggestion of the attorney for the
United States’ also seemed to allude to the prerogative of the executive with regard to the decision
on immunity, (US, 1812) 147.
⁸² Republic of Mexico v Hoff man 324 US 30 (US, S Ct, 1945).
⁸³ ibid 35.
⁸⁴ ibid 36. Cf also The Navemar (US, 1938); The Beaton Park 13 AD 83, case no 35 (US, DC for
the Western District of Washington, Northern District, 1946).
⁸⁵ ibid 39 (Concurring opinion Justice Frankfurter, Justice Black joining).
State Immunity 31
of formal reversal of the established doctrine, [the court] may proceed by way of a
less direct approach . . .’⁸⁶
So how did US courts deal with claims instigated against foreign states in
personam? It first must be noted that at this period in time cases are still rare.
A careful examination of the few examples available reveals a wavering judiciary
in search of principles to deal with the changing world around it. Lower courts
usually did not acknowledge that The Schooner Exchange case and the Pesaro case
do not support in personam immunity and several courts did state in no uncertain
terms that a friendly foreign state cannot be sued without its consent.⁸⁷ However,
the reasoning applied in some of these decisions, as well as the reasoning in cases
in which immunity was granted without the assertion of such a basic principle
compel the conclusion that US practice was not firmly based on the absolute
state immunity doctrine. For one, courts set out to distinguish the activity of the
foreign state before it from purely lucrative commercial undertakings. In Oliver–
American Trading Co v Government of the United States, for example, it was con-
sidered that no jurisdiction could be exercised over a foreign state in regard to
its operation of the railways since ‘it is the practice of governments to own and
operate the railways. This is not regarded by them as engaging in trade, but as
the performance of a fundamental governmental function.’⁸⁸ In a similar vein,
in Kingdom of Roumania v Guaranty Trust Co of New York the grant of immunity
was supported by the consideration that ‘the Kingdom of Roumania in contract-
ing for shoes and other equipment for its armies was not engaged in business,
but was exercising the highest sovereign function of protecting itself against its
enemies’.⁸⁹
Courts clearly struggled with the rule of state immunity and with criticism in
doctrine increasing,⁹⁰ responsibility for the issue was eventually shifted to the
executive that until 1952 ordinarily requested immunity in all actions against
⁸⁶ H Lauterpacht (1951) 269.

⁸⁷ Cf Republic of France v Pittsburgh Steel Export Company 1 AD 134, case no 89 (US, City
Court of the City of New York, 1920); Kunglig Jarnvagsstyrelsen v Dexter and Carpenter 2 AD 121,
case no 63, 5 AD 125, case no 80 (US, DC for the Southern District of New York & Ct of Apps
(2nd Cir), 1924 & 1929); Lamont v Travellers Insurance Co 9 AD 207, case no 73 (US, New York Ct
of Apps, 1939); Puente v Spanish National State 9 AD 190, case no 70 (US, Ct of Apps (2nd Cir),
1940); Republic of China v American Express Co 19 AD 192, case no 39 (US, Ct of Apps (2nd Cir),
1952). It is noted that government-owned corporations were not considered to be protected by the
rule: Coale et Al v Société Coopérative Suisse des Charbons, Basle et al 1 AD 133, case no 88 (US, DC
for the Southern District of New York, 1921); United States v Deutsches Kalisyndicat Gesellschaft
31 F 2d 199 (US, DC for the Southern District of New York, 1929) 201–2; Hannes v Kingdom of
Roumania Monopolies Institute 9 AD 198, case no 72 (US, S Ct of New York, 1938 & 1940).
⁸⁸ Oliver–American Trading Co v Government of the United States of Mexico 2 AD 49, case no 21,
50 (US, Ct of Apps (2nd Cir), 1924).
⁸⁹ Kingdom of Roumania v Guaranty Trust Co. of New York 250 F 341 (US, Ct of Apps (2nd Cir),
1918) 345.
⁹⁰ Cf eg JY Brinton, ‘Suits against Foreign States’ (1931) 25 AJIL 50.
friendly foreign sovereigns.⁹¹ In 1952 the State Department communicated with
the so-called Tate Letter that it would ‘hereafter be the Department’s policy to fol-
low the restrictive theory of sovereign immunity in the consideration of requests
of foreign governments for a grant of sovereign immunity.’⁹² Significantly, the
Tate Letter did not propose to change the practice of suggestions of immunity.
Moreover, the statement was merely one of intent: it did not provide criteria for
the application of the restrictive theory, nor the possibility of judicial control.
Subsequent practice did not in fact reflect a strict application of the restrictive
theory: political considerations continued to influence executive decisions in the
field. When in the case of Chemical Natural Resources v Republic of Venezuela the
court was confronted with a suggestion of immunity although the dispute before
it clearly involved commercial acts, it expressed its dismay as follows:
Irrespective of its clear meaning, it appears that the State Department has silently aban-
doned the ‘revised and restricted policy’ set forth in the Tate Letter and has substituted a
case by case foreign sovereign immunity policy, i.e. the State Department will recognize
and suggest or fail to recognize or grant or suggest sovereign immunity in each case pre-
sented to it, depending (a) upon the foreign and diplomatic relations which our country
has at that particular time with the other country, and (b) the best interest of our country
at that particular time.⁹³
It did however reluctantly follow the suggestion, holding that
[i]f and when the State Department concludes that a foreign Nation is entitled to sover-
eign immunity that determination . . . is conclusive no matter how unwise or, in a particu-
lar case, how unfair or unjust the Department’s determination appears to be . . .⁹⁴
Consequently, contrary results were reached in similar situations depending on
whether a suggestion was issued or not. For example in the Victory Transport case
immunity was denied in absence of an executive determination because the con-
tract for the carriage of grain which was at the basis of the dispute was not a
public act; while in the Isbrandtsen Tankers case similar facts did induce the State
Department to issue a suggestion of immunity.⁹⁵ The court in this case did point
out that the acts of the Indian Government were most probably ‘purely private
⁹¹ Verlinden BV v Central Bank of Nigeria 461 US 480 (US, S Ct, 1983) 486. Cf Sullivan v State
of São Paulo 10 AD 178, case no 50 (US, Ct of Apps (2nd Cir), 1941); Piascik v British Ministry
of War Transport 12 AD 87, case no 22 (US, DC for the Southern District of New York, 1943);
Isbrandtsen Co, Inc v Netherlands East Indies Government (The Martin Behrman) 14 AD 75, case
no 26 (US, DC for the Southern District of New York, 1947).
⁹² Letter of Jack B Tate, Acting Legal Adviser, Department of State, to Acting Attorney-General
Philip B Perlman, 19 May 1952, reprinted in (1952) 26 Department of State Bulletin 984. Cf
WW Bishop, ‘New United States Policy Limiting Sovereign Immunity’ (1953) 47 AJIL 93.
⁹³ Chemical Natural Resources v Republic of Venezuela 420 Pa 134 (US, S Ct of Pennsylvania,
1966), 159; 42 ILR 119, 122.
⁹⁴ ibid 147.
⁹⁵ Victory Transport Inc v Comisaria Gen De Abestecimientos y Transportes 336 F 2d 354 (US, Ct
of Apps (2nd Cir), 1964); 35 ILR 110. Isbrandtsen Tankers Inc v President of India 446 F 2d 1198
(US, Ct of Apps (2nd Cir), 1971) 1201.
State Immunity 33
commercial decisions’ but saw ‘no alternative but to accept the recommendation
of the State Department’.⁹⁶
Courts acknowledged, and often sanctioned, the use of political consider-
ations rather than legal criteria by the State Department. In Spacil v Crowe the
court held:
When the executive branch has determined that the interests of the nation are best served
by granting a foreign sovereign immunity from suit in our courts, there are compelling
reasons to defer to that judgment without question. Separation-of-powers principles
impel a reluctance in the judiciary to interfere with or embarrass the executive in its con-
stitutional role as the nation’s primary organ of international policy. And the degree to
which granting or denying a claim of immunity may be important to foreign policy is a
question on which the judiciary is particularly ill-equipped to second-guess the execu-
tive. The executive’s institutional resources and expertise in foreign affairs far outstrip
those of the judiciary. Perhaps more importantly, in the chess game that is diplomacy
only the executive has a view of the entire board and an understanding of the relationship
between isolated moves. Will granting immunity serve as a bargaining counter in com-
plex diplomatic negotiations? Will it preclude a significant diplomatic advance; perhaps a
détente between this country and one with whom we are not on the best speaking terms?
These are questions for the executive, not the judiciary.⁹⁷
It is obvious that this practice raised serious due process questions, especially
since the suggestions of the State Department are beyond review by the courts.⁹⁸
In Spacil v Crowe the plaintiffs argued that the State Department must explicate
the reasons behind its decision; only then can the judiciary properly be confident
that the executive has exercised its discretion within the bounds of reasonable-
ness. The State Department had only explained its suggestion holding that ‘the
public interest and United States foreign relations are best served’ by the grant of
immunity. The court decided that to
require the executive to enlighten us with the foundation of its decision to recognize and
allow a claim of sovereign immunity might itself create a serious risk of interference with
foreign relations . . . We can visualize situations where the disclosure that negotiations
are ongoing, or even contemplated, would wreak havoc with foreign relations. We sim-
ply dare not risk this sort of interference . . . We hold, therefore, that the executive’s deci-
sion to recognize and allow a claim of foreign sovereign immunity binds the judiciary,
⁹⁶ ibid. Cf also LM Drachsler, ‘Some Observations on the Current Status of the Tate Letter’
(1960) 54 AJIL 790 with reference to another case where the executive suggestion seemed issued in
disregard of the Tate Letter (Weilamann and McCloskey v The Chase Manhattan Bank 28 ILR 165
(US, S Ct of New York, 1959) .
⁹⁷ Spacil v Crowe 489 F 2d 614 (US, Ct of Apps (5th Cir), 1974) 619; 63 ILR 24. See also Rich v
Naviera Vacuba SA 295 F 2d 24 (US, Ct of Apps (4th Cir), 1961); 32 ILR 127.
⁹⁸ Even though in the late 1960s the State Department formalized the procedure by which for-
eign states present their immunity claims, providing for informal, quasi-judicial hearings where
both sides presented written and oral arguments to the State Department’s Office of the Legal
Advisor.
and that no further review of the executive’s action is dictated by the Administrative
Procedure Act.⁹⁹
This led one commentator to ask the following rhetorical question:
is sufficient weight being accorded to the interests of the plaintiff, when he is denied the
opportunity to have his rights adjudicated as a result of the filing of a suggestion which
may accord immunity neither required by international law nor consistent with previ-
ously announced State Department policy, and which is utterly beyond review?¹⁰⁰
In 1976 the Supreme Court decided that the restrictive theory was applicable in
the United States.¹⁰¹ It was however not until the enactment of the 1976 Foreign
Sovereign Immunities Act that the rule of restrictive state immunity was accepted
as a legal norm the application of which was a power vested exclusively in the
courts.¹⁰²
In sum, early US state practice can hardly be regarded as support for an inter-
national law rule of absolute state immunity. Chief Justice Marshall in his opin-
ion on The Schooner Exchange wrote:
In exploring an unbeaten path, with few, if any, aids from precedents or written law, the
court has found it necessary to rely much on general principles, and on a train of reason-
ing, founded on cases in some degree analogous to this.¹⁰³
Unlike the UK courts later, Marshall preferred to decide the case before him
solely on an analogy with diplomatic and head of state immunity. A careful exam-
ination of his argumentation—as well as of that employed in the Pesaro case—
revealed the limited basis of his decision in a physical entry of the property of a
foreign state in the territory of the forum and the nature of in rem proceedings.¹⁰⁴
One can only guess as to the reasons for the apparent reluctance to base the grant
of immunity on the sovereign status of a state as such. One explanation may
be the uneasy existence of the immunity of the local sovereign in the national
legal system. It has been questioned how a rule, devised to protect the person
of sixteenth-century monarchs, has ended up shielding a democratic govern-
ment from the application of the rule of law.¹⁰⁵ Its incorporation into US law has
been called ‘one of the mysteries of legal evolution’.¹⁰⁶ As Lauterpacht noted, the
1907 decision in Kawananakoa v Polybank was taken at a time in which support
⁹⁹ Spacil v Crowe (US, 1974) 620–1.

¹⁰⁰ RC Pugh and J McLaughlin, ‘Jurisdictional Immunities of Foreign States’ (1966) 41
New York University Law Review 25, 63. Cf for more criticism PC Jessup, ‘Has the Supreme
Court Abdicated One of its Functions?’ (1946) 40 AJIL 168.
¹⁰¹ Alfred Dunhill of London Inc v Republic of Cuba 425 US 682 (US, S Ct, 1976).
¹⁰² US, Foreign Sovereign Immunities Act of 1976, Public Law 94–583, 90 Stat 2891, repro-
duced in (1976) 15 ILM 1388.
¹⁰³ The Schooner Exchange v M’Faddon (US, 1812) 136.
¹⁰⁴ Cf especially GM Badr (1984) 37.
¹⁰⁵ V Lawyer, ‘Birth and Death of Governmental Immunity’ (1966) 15 Cleveland-Marshall Law
Review 529, 532; H Lauterpacht (1951) 233.
¹⁰⁶ EM Borchard, ‘Government Liability in Tort’ (1924–25) 34 YLJ 1, 4.
State Immunity 35
for the rule was in fact already waning.¹⁰⁷ Although this may not have been on
Marshall’s mind in 1812, it may shed some light on the later jurisprudence. It has
moreover been suggested that the reluctance to accept broad constraints on US
jurisdiction in The Schooner Exchange reflects the preoccupation of a new state to
jealously protect its own rights.
Lower courts that did pronounce a rule of absolute state immunity in per-
sonam did so without much conviction and quickly moved to defer to the execu-
tive branch in foreign state immunity matters. As the Supreme Court noted in
Verlinden v Central Bank of Nigeria ‘[u]ntil 1952 the State Department ordin-
arily requested immunity in all actions against friendly foreign sovereigns’.¹⁰⁸
Although the practice of deference only became fully established with the deci-
sion of the Supreme Court in Ex parte Peru,¹⁰⁹ lower courts had regularly taken
into account views expressed by the executive before. Early US practice is there-
fore not a reflection of an international rule but rather reflects national constitu-
tional requirements. The court in the Victory Transport case admitted as much:
The [state immunity] doctrine originated in an era of personal sovereignty, when kings
could theoretically do no wrong . . . With the passing of that era, sovereign immunity has
been retained by the courts chiefly to avoid possible embarrassment to those responsible
for the conduct of the nation’s foreign relations.¹¹⁰
And also the court in Heaney v Government of Spain stated that:
the contemporary rationale for sovereign immunity is the avoidance of possible embar-
rassment to those responsible for the conduct of the nation’s foreign relations.¹¹¹
2.2.3.2 The United Kingdom

Compared to the United States, in the United Kingdom judicial support for the
restrictive theory developed along a different path and at a markedly different
pace. Although early UK state immunity practice similarly concerned in rem pro-
ceedings against ships owned by foreign sovereigns, the reasoning of the courts
in support of the state immunity rule differs from that developed in The Schooner
Exchange. The UK courts did not hesitate to formulate an absolute immunity
doctrine, which they then applied, as Lauterpacht noted, ‘with a consistency
bordering on rigidity’.¹¹²
The Parlement Belge was a packet-boat owned and possessed by the King of
the Belgians. The Royal Belgian Navy used the ship as a mail packet between
Ostend and Dover, but the ship was also operated in the carriage of passengers
¹⁰⁷ Kawananakoa v Polybank 205 US 349 (US, S Ct, 1907) 353. See H Lauterpacht (1951) 231.
¹⁰⁸ Verlinden BV v Central Bank of Nigeria (US, 1983) 486.
¹⁰⁹ Ex p Republic of Peru (US, 1943).
¹¹⁰ Victory Transport Inc v Comisaria Gen De Abestecimientos y Transportes (US, 1964) 357.
¹¹¹ Heaney v Government of Spain and Adolpho Gomero 57 ILR 153 (US, Ct of Apps (2nd Cir),
1991) 156.
¹¹² H Lauterpacht (1951) 270.
and merchandise for hire. After collision with another vessel in the Port of
Dover, in rem proceedings were brought against the ship to recover damages.
Phillimore—in first instance—refused to grant immunity because the ship was
partially engaged in trading activities.¹¹³ The decision was however overturned
by the Court of Appeal that asserted that since ‘the ship has been mainly used
for the purpose of carrying the mails, and only subserviently to that main object
for the purposes of trade’ immunity should be granted.¹¹⁴ Several scholars have
pointed out that maybe immunity would have been denied had trading been the
principal activity of the vessel.¹¹⁵ The observation is a valid one. However, the
reasoning employed by the court reveals that the immunity in in rem proceedings
was thought to be also required by the immunity enjoyed by foreign sovereigns in
in personam proceedings. The court first considered that
as a consequence of the absolute independence of every sovereign authority and of the
international comity which induces every sovereign state to respect the independence of
every other sovereign state, each and every one declines to exercise by means of any 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 a state which is destined to public use,
or over the property of any ambassador, though such sovereign, ambassador, or prop-
erty be within its territory, and, therefore, but for the common agreement, subject to its
jurisdiction.¹¹⁶
In addition, the court found that, since the proceedings in rem indirectly
impleaded the State as the owner of the ship, it was relevant to note that the
Belgian state enjoyed an absolute immunity from the jurisdiction of the English
courts in proceedings brought against it directly. ‘We think’—the court held—
‘that he cannot be so indirectly impleaded, any more than he could be directly
impleaded.’¹¹⁷
The facts of the 1919 Porto Alexandre case were similar to those of the US case
of Berizzi Bros v SS Pesaro discussed above.¹¹⁸ The same Court of Appeal that had
emphasized the public use of the vessel in The Parlement Belge, disregarded these
considerations in The Porto Alexandre and held a state-owned ship used exclu-
sively in trading operations to be entitled to immunity. The case has been referred
to as the climax of absolute immunity and the high-water mark in acceptance of
the doctrine by English courts.¹¹⁹
¹¹³ The Parlement Belge (1878–79) 4 PD 129 (UK, Court of Admiralty, 1879).
¹¹⁴ The Parlement Belge (1879–80) 5 PD 197 (UK, CA, 1880) 214–15 (per Brett LJ).
¹¹⁵ I Sinclair (1980) 126; S Sucharitkul, State Immunities and Trading Activities in International
Law (1959) 60.
¹¹⁶ The Parlement Belge (UK, 1880) 214–15.
¹¹⁷ ibid 219.
¹¹⁸ The Porto Alexandre [1920] P 30 (UK, CA, 1919); 1 AD 146, case no 100.
¹¹⁹ S Sucharitkul (1959) 66; I Sinclair (1980) 157. The approach has been followed by lower
courts and the Court of Appeal in a number of decisions, including Compania Mercantil Argentina v
United States Shipping Board 131 LT 388 (UK, CA, 1924).
State Immunity 37
When the House of Lords finally confirmed the rule in The Cristina in 1938,
the first cracks in the UK adherence to the absolute theory as regards in rem pro-
ceedings however were already visible.¹²⁰ Only Lords Atkin and Wright expressed
an unqualified acceptance of the rule of absolute immunity as laid down in The
Porto Alexandre. Lord Atkin held that
the Courts of a country will not implead a foreign Sovereign, that is, they will not by their
process make him against his will a party to legal proceedings whether the proceedings
involve process against his person or seek to recover from him specific property or dam-
ages. . . . they will not by their process, whether the Sovereign is a party to the proceedings
or not, seize or detain property which is his or of which he is in possession or control.
There has been some difference in the practice of nations as to possible limitations of this
second principle, as to whether it extends to property only used for the commercial pur-
poses of the Sovereign or to personal private property. In this country it is in my opinion
well settled that it applies to both.¹²¹
The other Lords based the grant of immunity on the ground that the ship in
question was dedicated to public use and expressed serious doubts regarding
The Porto Alexandre decision. Lord Thankerton held himself free to reconsider
the case arguing that the Court of Appeal had erred in finding a precedent in The
Parlement Belge, since that case had reference to ships used for public purposes
only.¹²² Lord Macmillan asserted that there was ‘no proved consensus of inter-
national opinion or practice’ in favour of a rule of absolute immunity applicable
even to vessels engaged wholly or substantially in trading activities.¹²³ Finally,
Lord Maugham went as far as rejecting The Porto Alexandre decision, giving
expression to ‘the most pungent judicial criticism yet given of the rule of absolute
immunity’.¹²⁴
In 1950 an interdepartmental committee was set up to discuss a possible reform
of state immunity law in the UK. The decision of the Court of Appeal in Krajina
v Tass Agency to grant immunity in a libel suit against a news agency because of its
formal status of department of the Soviet State was the immediate cause for the
sudden interest in the topic.¹²⁵ An interim report—reflecting a tendency to aban-
don the absolute immunity theory—was issued, but since the committee was too
divided to agree on any proposals, the report was never published and the work of
the committee discontinued.¹²⁶
The thorny question of state agencies engaged in commerce came again before
the courts in Baccus SRL v Servicio Nacional del Trigo.¹²⁷ The case concerned
¹²⁰ The Cristina (1938) 60 LR 147 (UK, HL, 1938).

¹²¹ ibid 156.
¹²² ibid 158–9.
¹²³ ibid 159–60.
¹²⁴ ibid 169–70. For the qualification see H Lauterpacht (1951) 271.
¹²⁵ Krajina v Tass Agency [1949] All ER 274 (UK, CA, 1949).
¹²⁶ See H Fox (2002) 112.
¹²⁷ Baccus SRL v Servicio Nacional del Trigo [1957] 1 QB 438 (UK, CA, 1956).
a claim for an alleged breach of contract against a department of the Spanish
Ministry of Agriculture engaged in the commercial trade of rye. In a dissenting
opinion Singleton LJ stated:
I cannot find that it has been almost universally recognised that if a government sets up a
legal entity, something which may contract on its own behalf as a limited company does
in this country, it can succeed in a claim for sovereign immunity in respect of the activ-
ities of that company or entity.¹²⁸
The other two judges of the court, however, rejected the concept of separate legal
personality and proceeded to grant the agency immunity from jurisdiction. In
Trendtex Trading Corporation v Central Bank of Nigeria¹²⁹ immunity was denied
to the central bank of Nigeria. While the ‘separate legal personality’ of an institu-
tion was still not deemed relevant, the Court of Appeal did not consider the bank
a department or organ of the state.
Clearly, the Trendtex case effectively reduced the scope of the absolute
immunity doctrine somewhat. The limiting of the scope of the state immun-
ity rule through a redefinition of what constitutes a state is however a far cry
from a conversion to the restrictive immunity doctrine. Support for a restrictive
immunity rule was initially only ventilated in dissenting or concurring opinions.
The rule saw its most prominent advocate in the UK judiciary in the person of
Lord Denning, who in the cases of Rahimtoola v The Nizam of Hyderabad,¹³⁰
Thai-Europe Tapioca Service Ltd. v Government of Pakistan¹³¹ and the illustrious
Trendtex case,¹³² developed a strong critique of the absolute immunity rule. In
Rahimtoola he stated, inter alia, that
if the dispute concerns, for instance, the commercial transactions of a foreign govern-
ment . . . and it arises properly within the territorial jurisdiction of our courts, there is no
ground for granting immunity.¹³³
The following was one of the considerations advanced in support of this
conclusion:
In all civilized countries there has been a progressive tendency towards making the sov-
ereign liable to be sued in his own courts; notably in England by the Crown Proceedings
Act 1947. Foreign sovereigns should not be in any different position. There is no reason
why we should grant to the departments or agencies of foreign Governments an immun-
ity which we do not grant our own.¹³⁴
¹²⁸ ibid 461.

¹²⁹ Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529 (K, CA, 1976).
¹³⁰ Rahimtoola v The Nizam of Hyderabad [1958] AC 379 (UK, HL, 1957); 24 ILR 175. The
other Judges emphatically disassociated themselves from Denning’s views.
¹³¹ Thai-Europe Tapioca Service Ltd v Government of Pakistan [1976] 1 LR 1(UK, CA, 1975).
¹³² Trendtex Trading Corporation v Central Bank of Nigeria (UK, 1976).
¹³³ Rahimtoola v The Nizam of Hyderabad (UK, 1957) 422.
¹³⁴ ibid 418.
State Immunity 39
In Thai-Europe Denning argued that an exception to state immunity must be

recognized in respect of proceedings regarding ‘land situated in England’, ‘trust
funds in England’, ‘debts incurred in England for services rendered to its prop-
erty in England’, and a dispute arising from ‘commercial transactions with a
trader in England . . . which is properly within the territorial jurisdiction of the
English courts’.¹³⁵ The other two judges on the bench argued that the rule of stare
decisis foreclosed the adoption of the restrictive approach by this court. In the
words of Scarman LJ:
[A] rule of international law, once incorporated into our law by decisions of a competent
court, is not an inference of fact, but a rule of law. It therefore becomes part of our muni-
cipal law and the doctrine of stare decisis applies as much to that as to a rule of law with
a strictly municipal provenance . . . I think therefore that it is not open to this court to
apply a new rule or view developing in the international field if it be inconsistent with a
rule already incorporated into our law by a decision of the Court of Appeal or the House
of Lords.¹³⁶
In 1976, just before the Court of Appeal decision in Trendtex, the Privy Council
held in The Philippine Admiral that foreign states were not immune from the jur-
isdiction of local courts in actions in rem with respect to state-owned commercial
ships or cargoes, declining to follow The Porto Alexandre precedent. The Council
qualified its decision with regard to actions in personam
The rule that no action in personam can be brought against a foreign sovereign state on a
commercial contract has been regularly accepted by the Court of Appeal in England and
was assumed to be the law even by Lord Maugham in The Cristina. It is no doubt open to
the House of Lords to decide otherwise, but it may fairly be said to be at the least unlikely
that it would do so . . . ¹³⁷
Although it admitted that ‘the resulting position may be somewhat anomalous’¹³⁸
the Council insisted on applying the restrictive theory as far as it could since it
held that theory to be ‘more consonant with justice’¹³⁹ It moreover considered:
In this country—and no doubt in most countries in the western world—the state can be
sued in its own courts on commercial contracts into which it has entered and there is no
apparent reason why foreign states should not be equally liable to be sued there in respect
of such transactions.¹⁴⁰
¹³⁵ Thai-Europe Tapioca Service Ltd. v Government of Pakistan (UK, 1975) 4–5. Immunity was
to be granted since the dispute did not qualify under one of the four categories.
¹³⁶ ibid 8.
¹³⁷ The Philippine Admiral 64 ILR 90 (UK, The Privy Council, 1975) 108. Cf also the Council’s
decision in Sultan of Johore v Abuhakar, [1952] AC 318, 343 where it emphasized that ‘[t]heir
Lordships do not consider that there has been finally established in England . . . any absolute rule
that a foreign independent sovereign cannot be impleaded in our courts in any circumstances.’
¹³⁸ ibid 109.
¹³⁹ ibid 109.
¹⁴⁰ ibid 108.
Lord Denning did not let pass the opportunity to resume his mission in the
Trendtex case.¹⁴¹ While Stephenson LJ and Shaw LJ preferred to base their deci-
sion on the ground that the defendant bank could not be regarded as a depart-
ment of the Nigerian Government, Denning considered that international law
did not require states to grant immunity in cases concerning ordinary trading
transactions, regardless of whether an action in rem or an action in personam
was concerned. The two other judges disagreed on whether—as Scarman LJ and
Lawton LJ had argued in Thai-Europe—the stare decisis rule precluded Denning’s
approach. Shaw argued it did not. He explained that
[t]he rule of stare decisis operates to preclude a court from overriding a decision which
binds it in regard to a particular rule of (international) law, it does not prevent a court
from applying a rule which did not exist when the earlier decision was made if the new
rule has had the effect in international law of extinguishing the old rule.¹⁴²
Stephenson disagreed. He did express sympathy for the restrictive doc-
trine though when he concluded that because of the rule of stare decisis he
felt bound to stand ‘loyally but reluctantly on the old doctrine and the old
decisions.’¹⁴³
In 1978 the UK State Immunity Act (SIA) was enacted.¹⁴⁴ The contro-
versy on the common law position did however continue in cases decided after
the enactment but dealing with questions of immunity under the old law. In
Uganda Co. (Holdings) v Government of Uganda Donaldson, J, held that the
reasoning of the judges in Trendtex—as recalled not at the basis of the decision
in that case—could not be reconciled with Thai-Europe and the established pos-
ition of the absolute doctrine of immunity for actions in personam. The decision
in the latter case was followed ‘because a decision which asserts the doctrine of
precedent must logically have more weight as a precedent than one which denies
or modifies that doctrine’.¹⁴⁵ Moreover, the judge attached ‘great weight to
the forecast by the Judicial Committee of the Privy Council that the House of
Lords will be unwilling to abandon the absolute rule of immunity in actions in
personam.’¹⁴⁶
¹⁴¹ Trendtex Trading Corporation v Central Bank of Nigeria (UK, 1976).

¹⁴² ibid 579. Also Lord Denning denied that the rule of stare decisis required the application of
the absolute doctrine. He argued that since international law clearly favoured the restrictive doc-
trine, and since international law was automatically the law of the United Kingdom, the rule did
not apply, 553. Cf for a critical discussion of that position CJ Lewis (1990) 25.
¹⁴³ ibid 572.
¹⁴⁴ UK, State Immunity Act 1978, reproduced in (1978) 17 ILM 1123.
¹⁴⁵ Uganda Co (Holdings) v Government of Uganda [1979] 1 LR 481 (UK, Queen’s Bench
Division, 1978).
¹⁴⁶ ibid 487.
State Immunity 41
Lord Wilberforce had in the meantime, however, already cast doubt as to the
merits of this forecast. At the November 1978 meeting of the International Law
Association (ILA) he stated:
We were hoping to get the Trendtex case and to revolutionize the law but the parties went
and settled before we could!¹⁴⁷
The House of Lords got its chance with I Congreso del Partido. The decision was
given after the introduction of the SIA, but on the basis of the common law.¹⁴⁸
Lord Wilberforce argued that ‘it is clear that international law, in a general way,
in 1978, gave support to a “restrictive” theory of state immunity. We do not need
the statute to make this good.’¹⁴⁹
UK adherence to the absolute immunity doctrine gives rise to two qualifying
observations. In the first place, the UK doctrine of foreign state immunity was
developed in a period in which in the UK the status of a state as such was seen to
prevent judicial scrutiny of its acts. Second, the rule of stare decisis pinned UK
state immunity law to that doctrine even when thinking on the rationale of the
rule developed.
The first observation regards the basis of the UK absolute immunity doc-
trine. The development of the notion of the state as an abstract institution did
not immediately free the concept of the state of the honorific and often archaic
features of dignity and status attaching to the personal sovereign. Even though at
the time of The Parlement Belge the days of Louis XIV were left far behind, resi-
dues of the identification of the ruler with the state undeniably influenced legal
thinking. This identification was at the basis of the development of an internal
state immunity concept, and extended to foreign states. In the UK immunity of
foreign states was, to a large extent, based on the same principles as the internal
immunity of the forum state. The rule of absolute immunity was hence not as
much based on principles of international law, but rather on principles concerned
with the status of states as such.
The immunity of the local sovereign and the immunity of the foreign personal
sovereign are commonly recognized as being at the cradle of the rule of foreign
state immunity. With regard to the immunity of local sovereigns Lauterpacht
remarked, for example, that
it is probable that a substantial explanation of that [immunity] doctrine will be found
in the traditional immunity of the sovereign state from suit in its own courts. The entire
concept of state immunity—whether of the foreign state or of the territorial state—is a
survival of the period when the sovereign, if he did justice to the subject, did so as a matter
¹⁴⁷ Quoted in C J Lewis (1990) 24.

¹⁴⁸ I Congreso del Partido (UK, 1981).
¹⁴⁹ ibid 260.
not of duty but of grace. It is an inheritance, not as indirect as it may appear, of the prin-
ciple that the personal sovereign—and subsequently the state—is legibus solitus.¹⁵⁰
While Lalive wrote that
[h]istoriquement la notion s’explique par le fait que l’Etat s’identifiait à la personne même
du souverain. La souveraineté et l’indépendance du chef de l’Etat étranger, du Prince,
entraînaient, par voie de conséquence nécessaire, l’impossibilité d’attraire celui-ci devant
les tribunaux étrangers.¹⁵¹
Although the two reputed factors of influence are usually treated separately, they
can only be appreciated when understood as one integral process. In particular,
the analogy with the immunity of the local sovereign can be seen to have facili-
tated the use of the analogy of personal immunity of foreign sovereigns—since a
similar transposition from the immunity of the person to the abstract institution
had taken place within national legal systems as well.
Notably, all three immunity concepts were thought necessary to protect the
dignity of the sovereign. Lauterpacht wrote in this regard that
[t]here is a close similarity between the manner in which the ‘dignity of the sovereign’ was
used as a justification of sovereign immunity within the state and the way in which it was
relied upon for the same purpose with regard to the jurisdictional immunities of foreign
states.¹⁵²
In sum, at a time where the archaic features of the personal sovereign were pro-
jected onto the abstract institution of the state, foreign state immunity was at
least partly based on the status of the state as such rather than on any consider-
ation concerning the specific position of a foreign state. The position of the forum
state before the court may be indicative of the development of legal thinking on
this point and may hence be relevant for the determination of the position of the
foreign state. If the forum state cannot be sued because of reasons perceived to
be inherent in the concept of state as such this equally precludes the subjection
to jurisdiction of a foreign state. Accordingly, in The Parlement Belge the court
stated that ‘the real principle on which the exemption of every sovereign from the
jurisdiction of every Court has been deduced is . . . dignity’.¹⁵³
¹⁵⁰ H Lauterpacht (1951) 232. See similarly S Sucharitkul (1976) 96 and 115.
¹⁵¹ J-F Lalive, ‘L’immunité de juridiction des États et des organisations internationales’
(1953–III) 84 RdC 205, 213. Cf also I Sinclair (1980) 121; PD Trooboff, ‘Foreign State Immunity:
Emerging Consensus on Principles’ (1986–V) 200 RdC 235, 252.
¹⁵² H Lauterpacht (1951) 231, cf fn 6.
¹⁵³ The Parlement Belge (UK, 1880) 207 (per Esher LJ). Cf also Lord Denning in his dissent in
Rahimtoola: ‘Search as you will among the accepted principles of international law and you will
search in vain for any set propositions. There is no agreed principle except this: that each State
ought to have proper respect for the dignity and independence of other States.’ Rahimtoola v The
Nizam of Hyderabad (UK, 1957) 417. This mix up of state and person can be seen confirmed in an
1894 case against the Sultan of Johore. The Sultan, who was temporarily living in the UK under
the name of Albert Baker was sued for breaking of his engagement to Ms Mighell. When the
Sultan revealed his true identity, the court considered under reference to The Parlement Belge that
State Immunity 43
In a similar vein, the fact that the forum state can be sued is a relevant argu-
ment in the development of a restrictive approach to foreign state immunity. The
Court of Cassation of Rome considered for example that
[i]t is not permissible to invoke a prerogative of immunity from jurisdiction in favour of a
foreign sovereign in Italy, where even the national sovereign is subject to ordinary law of
a proprietary nature.¹⁵⁴
In the early Belgian case law, similar considerations are found. In the case of
SA des Chemins de Fer liégeois-luxembourgeouis v l’Etat néerlandais,¹⁵⁵ mentioned
above, the Court of Cassation held that
pour les Etats étrangers, comme pour l’Etat belge, la souveraineté n’est pas en jeu quand
ils sont en cause, non pas comme pouvoirs, mais uniquement pour l’exercice ou la défense
d’un droit privé.
In a particularly insightful vein Lalive wrote:
A l’époque où l’Etat s’identifiait avec la personne du souverain, il était compréhensible
que les auteurs et la jurisprudence eussent marqué certaines hésitations [as to the restric-
tion of immunity]. Mais aujourd’hui la situation est très différente; l’antropomorphisme
étatique a été remplacé par des notions nouvelles, mieux en harmonie avec la réalité et avec
la solidarité internationale. Le pouvoir politique a été transféré de la personne souveraine
des gouvernants à l’Etat, entité abstraite, ensemble de services publics. Ce phénomène
d’institutionnalisation du pouvoir, combiné aux faits qui ont été examinés ci-dessus, a
privé de toute raison d’être la théorie de l’immunité absolue.¹⁵⁶
In the UK the possibility to sue the executive before the courts was created rela-
tively late. It is instructive to note however that the opposition against the rule
of absolute state immunity in the UK indeed developed after the enactment
of the 1947 UK Crown Proceedings Act.¹⁵⁷ The most influential criticism was
without doubt that advanced by Lauterpacht in his seminal article published in
1951.¹⁵⁸ He boldly argued in favour of the abolition of the rule of state immunity
in personam proceedings against a foreign sovereign were impossible and granted him immunity
from civil jurisdiction, Mighell v Sultan of Johore [1894] 1 QB 149 (UK, CA, 1893).
¹⁵⁴ Carlo d’Austria Este v Nobili 73 Giu It 1921–I–471 (Italy, Corte di Cassazione di Roma,
1921) 473; 1 AD 136, case no 90, 136. Although this case concerned the personal immunity of a
foreign sovereign, this was also the general approach in cases against states, see Canale v Governo
francese (1937) 29 RDI 81 (Italy, Appello Genova, 1937), and especially Government of Bolivia v
Italian Association for Aeronautical Exports 15 AD 133, case no 41 (Italy, Court of Cassation, 1948)
135. The Italian courts have continued to assimilate the position of foreign states to the position of
the Italian states before it, see M Cosnard (1996) 69.
¹⁵⁵ SA des Chemins de Fer liégeois-luxembourgeouis v l’Etat néerlandais (Belgium, 1903).
¹⁵⁶ J-F Lalive (1953) 222.
¹⁵⁷ UK, Crown Proceedings Act (1947), available at <http://www.dwp.gov.uk/advisers/docs/
lawvols/greenvol/pdf/g_0101.pdf>.
¹⁵⁸ H Lauterpacht (1951).
and an assimilation of the position of foreign sovereigns with that of the local sov-
ereign.¹⁵⁹ He noted that:
[p]ublic opinion, and practical considerations do not permit too wide a gap between the
law governing the immunities of the home state and the law, which many regard as increas-
ingly artificial, unjust, and archaic, relating to the immunities of foreign states.¹⁶⁰
Many agreed with Lauterpacht’s assessment that ‘[i]t is very probable that the
law of the countries—which still grant absolute immunity to foreign states, goes
beyond the requirements of international law.’¹⁶¹ And also the idea that foreign
state immunity should not go further than the immunity of the own state under
the 1947 Crown Proceedings Act found support.¹⁶² It is further recalled that both
the Privy Council in The Philippine Admiral and Lord Denning in Rahimtoola
supported their plea for the restrictive approach with the consideration that there
is no reason why foreign sovereigns should be in a different position from the
local sovereign.¹⁶³
With reference to scholars and courts linking different immunity concepts,
Cosnard made a point of stating that the immunity of the personal foreign sov-
ereign and the immunity of the local sovereign do not provide the rule of foreign
state immunity with a foundation.¹⁶⁴ It is respectfully submitted that this asser-
tion mistakes exercises in history with an exercise in logic. Of course, a distinct
basis for the immunity of the local sovereign—more geared to the attributes of
the state as an abstract institution—was later developed. In the United States, for
example, two separate arguments can be distinguished. The first, which could
deprecatingly be termed ‘The King can do no wrong’ theory in disguise, is derived
from the view that the origin of law resides within the territorial state.¹⁶⁵ Justice
Holmes, in the US Supreme Court decision in Kawananakoa v Polybank, fam-
ously based the immunity of the state ‘on the logical and practical ground that
there can be no legal right as against the authority that makes the law on which
the right depends’.¹⁶⁶ A second argument was found in the ‘separation of powers’
doctrine. The control exercised by the judiciary over the acts of the executive in
¹⁵⁹ Although the theory of assimilation disregards the distinct principles applicable to the
local and the foreign state, the proposal advanced by Lauterpacht arguably escapes that criticism.
In § 2.3.2 below a further interpretation of Lauterpacht’s proposal will be given.
¹⁶⁰ H Lauterpacht (1951) 221.
¹⁶¹ ibid 239. Cf EJ Cohn, ‘Waiver of Immunity’ (1958) 34 BYIL 260, 260–1; E Lémonon
(Rapporteur Institut de Droit International), L’immunité de juridiction et d’exécution forcée des
Etats étrangers, Rapport et projet de Résolution définitifs, observations E Beckett, (1952) 44–I
AIDI 5, 53–93.
¹⁶² Cf BA Wortley, ‘The Interaction of Public and Private International Law Today’ (1954–I)
85 RdC 239, 268.
¹⁶³ Cf p 38, 39 above.
¹⁶⁴ M Cosnard (1996) 62.
¹⁶⁵ See also GG Phillimore, ‘Immunité des États, au point de vue de la juridiction ou de
l’exécution forcée’ (1925–III) 8 RdC 413, 442–3; J-F Lalive (1953) 218.
¹⁶⁶ Kawananakoa v Polybank (US, 1907) 353.
State Immunity 45
case of judicial proceedings against the state was held to be contrary to the inde-
pendence of the latter and therefore unacceptable.
It may be clear that this two-pillared basis of the internal immunity of states is
as such not transposable to justify the immunity of foreign states. Cosnard there-
fore argued that in fact the analogy with internal immunity is a false one, not able
to provide a foundation to the rule of foreign state immunity.¹⁶⁷ State immunity,
he emphasized, has a distinct foundation in the principle of sovereign equality. So
far, so good. And as far as this argument is used to criticize proposals to assimilate
the position of foreign states with that of the local sovereign, or alternatively, with
its position before its own courts, it is also valid.¹⁶⁸
It is submitted however that the methodology of discussing the immunity of
the local sovereign and the immunity of the personal sovereign, as part of the
search for a sound foundation of the doctrine of immunity of foreign states, is
unfortunate because it focuses on justification of the doctrine, where a focus on
its explanation is to be preferred. Negating the internal immunity analogy on the
basis of logical reasoning assumes the existence of a theoretically-sound basis to
the foreign state immunity rule. In fact, its inception is at least partly attributable
to historical fallacies. Disregard of this reality prevents one from fully grasping
the process of inception of the state immunity rule. The analysis of Cosnard is,
so to say, troubled by the disadvantage of hindsight. Maybe the identification of
the influence of false arguments in the development of the immunity rule is a
more valuable finding than the automatic restatement of the sovereign equality of
states as its basis.
The proposed perspective—that of explanation rather than justification—
impels the conclusion that the immunity of the local sovereign has undeniably
induced and facilitated the inception of the state immunity concept in the com-
mon law countries. This approach places the examination of the link between the
two rules back in history, instead of discussing the topic in light of contemporary
doctrine. From this perspective it cannot but be concluded that via the analogy of
the immunity of the local sovereign, ‘the honorific and ceremonial features of the
immunity of the sovereign in person, and their representatives, have reacted often
in exaggerated forms upon the topic of State immunity in general’.¹⁶⁹
Most importantly, even if the distinct basis in international law of the rule of
state immunity discredits any state immunity regime based on assimilation, the
limits placed on the immunity of the local sovereign are relevant for the immun-
ity of foreign sovereigns—and not only because of the sociological consideration
that ‘[p]ublic opinion, and practical considerations do not permit too wide a gap
¹⁶⁷ M Cosnard (1996) 73.

¹⁶⁸ Cf also P De Visscher and J Verhoeven (1971) 53.
¹⁶⁹ I Brownlie (Rapporteur Institut de Droit International), Contemporary Problems
Concerning the Jurisdictional Immunity of States, Preliminary Report (1987), (1987) 62–I AIDI
13, 22.
between the law governing the immunities of the home state and the law’.¹⁷⁰
As was argued above, the exercise of jurisdiction over the local sovereign made
clear that nothing in the quality of being a state as such could underlie the rule of
foreign state immunity.
The second observation that qualifies the importance of the adherence to the
absolute immunity doctrine in the UK regards the role of the stare decisis rule.
At a certain point the application of the doctrine no longer reflected a belief in
the principle. When the notion of dignity lost its cogency judges did start to
express support—albeit cautious—for the principles of the restrictive approach.
The stare decisis rule was however thought to be an obstacle to the abandonment
of the absolute immunity doctrine. Already in 1958 one scholar noted in this
respect that the UK courts might no longer have ‘the means of finding a way out
of the fetters which they have created for themselves’.¹⁷¹
2.2.4 Conclusion
A significant majority of states today supports a restrictive approach to the rule of
foreign state immunity. It can therefore be safely stated that international law does
not require states to grant immunity beyond the demands of the restrictive the-
ory. It was questioned at the outset of this section whether the early developments
in countries like Belgium and Italy were at the time violating international law,
or that alternatively international law has never required national courts to grant
an absolute immunity to foreign states. The early conversions to the restrictive
approach, together with the observations regarding the early developments in the
US and the UK do not make a strong case for the argument that state immunity
started out as an absolute rule. Although instances of application of the absolute
rule can be found in the history of civil law jurisdictions as well, if anything, the
piecemeal application of the rule evidences a wavering judiciary and an unsettled
and uncertain practice.¹⁷²
The explanation for the slow adjustment of legal theory to practical reality
should however not only be sought in positive factors accounting for the adher-
ence to the absolute doctrine. The adherence to an arguably archaic absolute doc-
trine, or the deference to the executive, may at least to some extent be attributable
to the absence of a convincing alternative. The next section will argue that while
¹⁷⁰ H Lauterpacht (1951) 221.

¹⁷¹ EJ Cohn (1958) 260. CH Schreuer, State Immunity: Some Recent Developments (1988)
4 noted that ‘[a]n obvious irony in this development is the fact that common law countries have
found it necessary to pass legislation in order to adjust their practice, while the civil law countries
have been quite content at developing the law on a case by case basis. This reversal of the traditional
patterns may at least partly be explained by the fact that stare decisis has led the common law
judiciaries into dead ends, from which only formal legislation could free them.’ Cf also CJ Lewis
(1990) 11.
¹⁷² Sucharitkul for example described the German practice as having followed a ‘zigzag course’,
S Sucharitkul (1976) 146. Compare also I Sinclair (1980) 128ff ; H Lauterpacht (1951) 250ff ;
EW Allen (1933).
State Immunity 47
the reasons for the limitation of state immunity are readily discernable, a cogent
theory of the restrictive immunity rule is still lacking.
2.3 A Poorly Articulated Theory

2.3.1 Explanation over Justification
The adoption of the rule of restrictive immunity is often explained under ref-
erence to the increasing involvement of states in commercial enterprises. Legal
disputes between states and individuals were on the rise and the rule of absolute
immunity was increasingly felt to entail a denial of justice. It was the ‘economic
reality’ that left ‘no alternative’ to states but to adopt a restrictive approach to the
immunity rule.¹⁷³ In Alfred Dunhill the US Supreme Court explained:
Participation by foreign sovereigns in the international commercial market has increased
substantially in recent years . . . The potential injury to private businessmen—and ultim-
ately to international trade itself—from a system in which some of the participants
in the international market are not subject to the rule of law has therefore increased
correspondingly.¹⁷⁴
The considerable increase of disputes between private individuals and foreign
states, because of the development of commercial activity by foreign states as well
as the increasingly international character of many commercial transactions in
the second half of the twentieth century, coincided with the increased interest
in the rights of individuals as against the state. As Lauterpacht noted, the aban-
donment of the absolute approach was not only required by ‘the expansion of the
activities of states and the injustice and inconvenience resulting from the disre-
gard of these developments in relation to claims of individuals’, but also by the
more fundamental consideration that
[a]t a period in which in enlightened communities the securing of the rights of the indi-
vidual—in all their aspects, against the state has become a matter of special and sig-
nificant effort, there is no longer a disposition to tolerate the injustice which may arise
whenever the state—our own state or a foreign state—screens itself behind the shield of
immunity in order to defeat a legitimate claim.¹⁷⁵
Courts and commentators alike have emphasized that ‘it is necessary in the inter-
est of justice to individuals having transactions with states to allow them to bring
such transactions before the courts.’¹⁷⁶
¹⁷³ Cf MB Feldman, ‘The United States Foreign Sovereign Immunities Act in Perspective:
A Founders View’ (1986) 35 ICLQ 302, 302. Cf also Harvard Law School, Research in International
Law (Reporter PC Jessup), Competence of Courts in Regard to Foreign States (1932 supplement)
26 AJIL 451, 473–4.
¹⁷⁴ Alfred Dunhill of London Inc v Republic of Cuba (US, 1976) 703.
¹⁷⁵ H Lauterpacht (1951) 235.
¹⁷⁶ I Congreso del Partido (UK, 1981) 262 (per Lord Wilberforce). Cf also Hall v Bengoa (1921)
48 JDI 270 (Egypt, Cour d’appel mixte d’Alexandrie, 1920) 272: ‘l’immunité de juridiction
The idea that states should be accountable players in the market place has at
times also been rationalized from the perspective of the interests of states rather
than individuals. In the 1886 case of Guttieres v Elmilik the Court of Cassation of
Florence explained that the restrictive theory facilitates the exercise of economic
activity of the state since they will be trusted more as a trading partner when
they can be called to respond to their obligations.¹⁷⁷ The absolute doctrine casts
a dubious shadow on the reputation of states as trading partners. Individuals,
rather than risk finding the courts closed when a dispute concerning a commer-
cial enterprise arises, may very well refuse to deal with foreign states. Scrutton LJ
sketched the following picture in The Porto Alexandre:
If ships of the State find themselves left on the mud because no one will salve them when
the State refuses any legal remedy for salvage, their owners will be apt to change their
views. If the owners of cargoes on national ships find that the ship runs away and leaves
them to bear all the expenses of salvage, as has been done in this case, there may be found
a difficulty in getting cargoes for national ships.¹⁷⁸
The reasons for the adoption of a restrictive rather than an absolute approach
to the rule of state immunity are thus apparent. A more fundamental question
inquires into the theorization of the restrictive rule. The rationale of the rule of
state immunity is the independence and equality of states.¹⁷⁹ Lord Wilberforce
formulated it as follows:
The basis on which one State is considered to be immune from the territorial jurisdic-
tion of the courts of another State is that of ‘par in parem non habet imperium’, which
dans ce cas serait la négation de la justice puisqu’elle priverait du secours de celle-ci les individus
dont les intérêts se trouvent en conflit avec les intérêts privés du dit Etat’; The Philippine Admiral
(UK, 1975) 109: ‘the restrictive theory is more consonant with justice’; Victory Transport Inc v
Comisaria Gen De Abestecimientos y Transportes (US, 1964) 357; 35 ILR 110; The Charkieh (UK,
1873); Venne v Democratic Republic of the Congo 5 DLR (3d) 128 (Canada, Quebec Court of
Queen’s Bench, 1968) 143–4: ‘an absolute and universal immunity could be a source of injustice’;
Zodiak International Products Inc v Polish People’s Republic (Canada, 1977) 58; Harbhajan Singh
Dhalla v Union of India (India, 1986) discussed p 18–9 above.
¹⁷⁷ Guttieres v Elmilik 11 F It. 1886–I–913 (Italy, Corte di Cassazione di Firenze, 1886) 921.
¹⁷⁸ The Porto Alexandre (UK, 1919) 39. It should be noted however that Scrutton did not see in
this an argument against immunity. He continued stating that ‘[t]hese are matters to be dealt with
by negotiations between Governments, and not by Governments exercising their power to interfere
with the property of other states contrary to the principles of international courtesy which govern
the relations between independent and sovereign states.’ The argument did prevail in the decision
by the lower court in The Pesaro(US 1921) 481. Cf also WW Bishop (1953) 98.
¹⁷⁹ The concept of dignity seems to have lost most of its attraction. Already in 1951 Lauterpacht
argued that ‘[t]hese strained emanations of the notion of dignity are an archaic survival and [ . . . ]
they cannot continue as a rational basis of immunity.’ Moreover, he wrote, ‘the dignity of foreign
states may suffer more from an appeal to immunity than from a denial of it’. H Lauterpacht (1951)
231 and 232. In a similar vein, another scholar held that ‘[it] would seem that as far as the dignity of
a state can be the basis of any proposition, it would be that it is better preserved by compliance with
international law and bearing the consequences of a failure to do so’, TH Hill, ‘A Policy Analysis of
the American Law of Foreign State Immunity’ (1981) 50 Fordham Law Review 155, 165. Cf also
Harbhajan Singh Dhalla v Union of India (India, 1986) 537: ‘One should have thought that the
political relationship between the two countries would be better served and the image of a foreign
State be better established if citizens’ grievances are judicially investigated.’
State Immunity 49
effectively means that the sovereign or governmental acts of one State are not matters on
which the courts of other States will adjudicate.¹⁸⁰
The justification for the restrictive approach is generally held to be that the prin-
ciples of equality and independence only require the grant of immunity to foreign
state defendants in cases concerning acts they performed in the exercise of their
sovereign authority. In 1886 the Court of Cassation of Florence considered that
the independence of states does not allow acts of a state that concern the exercise
of its sovereignty to be subjected to foreign jurisdiction. However, it continued,
when these high prerogatives are not involved, and the Government as a civil body,
descends into the sphere of contracts and transactions so as to acquire rights and assume
obligations, just as a private person might do, then the independence of the State is imma-
terial, for in such case it is a question solely of private acts and obligations to be governed
by the rules of the general laws.¹⁸¹
Exactly how these principles explain the restrictive scope of state immunity is
however a question conveniently ignored. Since also the absolute state immunity
doctrine relied on the principles of independence and equality of states this justi-
fication requires some elaboration. The French Court of Cassation considered for
example that it follows from the principle of the independence of states that
un gouvernement ne peut être soumis pour les engagements qu’il a contracté à la juridic-
tion d’un Etat étranger; qu’en effet, le droit de juridiction qui appartient à chaque gou-
vernement pour juger les différends nés à l’occasion des actes émanés de lui est un droit
inhérent à son autorité souveraine; qu’un autre gouvernement ne saurait s’attribuer sans
s’exposer à altérer leurs rapports respectifs.¹⁸²
A Belgian court—in one of the rare instances of application of the absolute
doctrine—emphasized the principle of equality of states, considering that:
Ce principe primordial du droit international public qui proclame toutes les nations
également souveraines, indépendants, et pas suite sans juridiction les unes à l’égard des
autres, puisque la juridiction suppose la subordination et non point la parfaite égalité.¹⁸³
¹⁸⁰ I Congreso del Partido (UK, 1981) 262. Cf also Holland v Lampen-Wolfe [2000] 1 WLR
1571 (UK, HL, 2000) 1580 (per Lord Cooke of Thorndon), 1581 (per Lord Clyde), and 1584 (per
Lord Millett); Special Representative of the State of the City of the Vatican v Pieciukiewicz 78 ILR 120
(Italy, Court of Cassation, 1982) 121; Swissair v X and Another 82 ILR 36 (Switzerland, Federal
Tribunal, 1985) 37; Al-Adsani v United Kingdom (ECHR, 2001) 289, § 54; 123 ILR 24.
¹⁸¹ Guttieres v Elmilik (Italy, 1886) 920–1 (trans in GM Badr (1984) 24). Cf in a similar sense
Roumania v Pascalet 2 AD 132, case no 68 (France, Commercial Tribunal of Marseille, 1944);
Alfred Dunhill of London Inc v Republic of Cuba (US, 1976) 703–4.
¹⁸² Gouvernement Espagnol v Casaux (France, 1849).
¹⁸³ Gouvernement ottoman v Société de Sclessin et Deppe et Roef PB 1877–3–28 (Belgium,
Tribunal d’Anvers, 1876) 28. Cf also E Lémonon (Rapporteur Institut de Droit International),
L’immunité de juridiction et d’exécution forcée des Etats étrangers, Rapport et projet de Résolution
définitifs, observations E Beckett, (1952) 44–I AIDI 5, 106, Observations A de Lapradelle:
‘L’égalité souveraine des États, indépendants membres de la societé internationale, ne leur permet
de venir ni en demande ni en défense devant les tribunaux d’un autre État.’
The maxim par in parem non habet imperium—or, equals cannot exercise juris-
diction over one another—was first used in support of the absolute state immun-
ity doctrine. In The Cristina case Lord Wright wrote that ‘[t]he rule may be said to
be based on the principle “par in parem non habet imperium”—no State can claim
jurisdiction over another Sovereign State.’¹⁸⁴ The Chilean Supreme Court argued
as follows
One of the fundamental rights of States is their right to equality. . . . This characteris-
tic . . . determines that a sovereign State shall not be subject to the jurisdictional power of
the courts of another State.¹⁸⁵
A surprising continuity accordingly characterizes judicial and academic thinking
on the rationales of the concept of state immunity. Anzilotti argued—in a bril-
liant paper on state immunity published in 1910—that the principle of equality
and the maxim par in parem non habet imperium can only account for an absolute
approach to the rule of state immunity.¹⁸⁶ It is not here asserted that the maxim
has no place in restrictive immunity theory—in fact, it will later be argued that
it does—but it must be admitted that without further theorization the restrictive
approach appears to rest somewhat uncomfortably on the justifications offered.
In this regard it is interesting to consider that early restrictive immunity
decisions often rationalized the absence of immunity by reference to either the
‘implied waiver’ or the ‘double capacity’ theory. These arguments have been
spurned in legal theory and practice alike but appear in a different light when
understood as an accommodation of the constraints of status thinking.
The implied waiver theory was, for example, relied on in the 1925 case of
Russian Trade Delegation v Tesini and Malvezzi where the Italian Court of
Cassation held that
(a) Italian courts have no jurisdiction over foreign States, except in cases where the
foreign States themselves renounce their jurisdictional immunity;
¹⁸⁴ The Cristina (UK, 1938) 162.

¹⁸⁵ Senerman Rapaport v Republic of Cuba 65 ILR 29 (Chile, S Ct, 1975) 30. Cf also S v British
Treasury 24 ILR 223 (Poland, S Ct, 1948) 224–5; C Calvo, Le droit international théorique et prat-
ique (3rd edn, 1881) i § 522; A De Cuvelier, ‘De l’incompétence des tribunaux nationaux a l’égard
des gouvernements étrangers’ (1888) 20 RDILC 109. See especially R Provinciali (1933) for the
argument that respect for the principles of independence and equality of states imposed an absolute
state immunity rule. The equality and independence of states, he argued, are constitutional prin-
ciples of the international legal order and the rule of absolute state immunity is hence a necessary
consequence of the organization of international society in this model. The exercise of jurisdiction
is the exercise of sovereignty, which implies a superior power not conceivable between subjects that
are independent and equal. He therewith rejected Anzilotti’s thesis discussed at the end of § 2.3.2
below. He argued that the principle of equality and independence of states requires an absolute
approach to state immunity and hence qualified the absolute rule as a necessary rule, see especially
84–7.
¹⁸⁶ D Anzilotti (1910).
State Immunity 51
(b) Such a renunciation is implied when the foreign State invokes that jurisdiction by
bringing an action before an Italian court or when it embarks upon commercial or
industrial activities in Italy.¹⁸⁷
Another illustrative case is the 1925 case of Storelli v Governo della Repubblica
francese.¹⁸⁸ The Civil Court of Rome refused to grant immunity to the French
government in a dispute with an Italian merchant, holding that when
the foreign State transplants itself into the national territory, it must be presumed, because
of the imperative simultaneous respect for the sovereignty exercised over such territory, to
consent to submit to the exercise of that sovereign’s most characteristic function.¹⁸⁹
Hence, a foreign state was deemed to have voluntarily submitted to the jurisdic-
tion of the forum state in respect of commercial transaction within that state’s
jurisdiction. Similar reasoning can be found in early Belgian, German, Austrian,
Egyptian and Greek restrictive immunity decisions.¹⁹⁰ The reference to implied
waiver to justify the exercise of jurisdiction over commercial acts has passed into
disuse. The generally accepted view is now that:
[t]here is no attraction in using the theory of ‘implied consent’ to aggrandise ‘exceptions’
to the principle of immunity, so to speak, as a flag of convenience. Waiver should in prin-
ciple exist on the basis of facts indicating a real and not a presumptive consent.¹⁹¹
Another concept that features in early restrictive immunity jurisprudence is the
theory of ‘double capacity’ or ‘double personality’ of a state. The theory, distin-
guishing between the state as a public entity and the state as a private entity for
immunity purposes, was especially popular in Italian jurisprudence. In 1886 the
Florence Court of Cassation stated that
once the distinction between the Government as a body politic and a civil entity is
admitted, once it is recognized that even a State may, by reason of acts of pure manage-
ment without offence to its political sovereignty, be made subject to the jurisdiction of
foreign courts, there can be nothing more correct than that the foreign State against
whom in this capacity a proceeding is brought, must be included in the category of
¹⁸⁷ Rappresentanza Commerciale Russa v Ditta Tesini e Malvezzi (1926) 18 RDI 249 (Italy, Corte
di Cassazione, 1925); 3 AD 176, case no 127 (emphasis added). Cf also the note of ET Liebman,
Case Comment (1926) 18 RDI 257.
¹⁸⁸ Storelli v Governo della Repubblica francese (1925) 17 RDI 236 (Italy, Tribunale di Roma,
1924); 2 AD 129, case no 66.
¹⁸⁹ ibid 240 (my translation).
¹⁹⁰ See for an overview of these cases I Sinclair (1980) 200. Cf also CF Gabba, ‘De la com-
pétence des tribunaux à l’égard des souverains et des Etats étrangers’ (1890) 17 JDIP 27, 39.
¹⁹¹ I Brownlie (Rapporteur Institut de Droit International), Contemporary Problems
Concerning the Jurisdictional Immunity of States, Definitive Report (1987), (1987) 62–I AIDI
45, 94. Cosnard convincingly criticized the use of this construction on dogmatic grounds, arguing
that the reasoning can be perfectly reversed to state that the individual has consented implicitly to
waive its recourse in case of dispute, or that the forum state has waived its jurisdiction by consent-
ing to the transactions of the defendant state on its territory: M Cosnard (1996) 327.
foreigners . . . the State being, in this respect, assimilated to other persons, physical or
juristic, not forming part of the Italian Kingdom.¹⁹²
The court made a distinction between the government as a political entity (ente
politico) and a civil entity (ente civile) and held that in this latter capacity the state
could be made subject to jurisdiction without offence to its sovereignty. The acts
emanating from these different entities were qualified as acts d’ impero and acts di
gestioni respectively.¹⁹³
The critical comment by Fitzmaurice that ‘a sovereign State does not cease to
be a sovereign State because it performs acts which a private citizen might per-
form’¹⁹⁴ is exemplary for how this reasoning was perceived in doctrine. In the
1912 case of Gamen Hubert v Etat Russe the Court of Appeals of Paris rejected the
double-personality concept with the following words:
There is no reason for distinguishing between . . . the public personality to which foreign
jurisdiction does not extend and the juristic personality which is said to be subject to such
jurisdiction. All the acts of a state have but one purpose and one finality which is always
political; the unity of the state does not permit such duality.¹⁹⁵
Although the criticism on both theories is valid, it is regrettable that the func-
tion of those theories in the development of the restrictive immunity theory is
disregarded. The role and position of these two concepts in restrictive immun-
ity theory can only be understood in light of the apparent friction between the
traditional status-oriented immunity theory and the development of a restrictive
regime according a decisive role to the subject matter of the dispute at hand. The
reference to implied waiver and double capacity may be characterized as a con-
struction—rather than a theory—rationalizing the restriction of a right based
on the sovereign status of the defendant state. Only when the defendant state is
not before the foreign court in its sovereign status, or when the defendant state
has voluntarily waived the rights flowing from this status, can the restrictive the-
ory be reconciled with the equality-rationale. In other words, these arguments
served to accommodate the theoretical constraints of status thinking. Scholars
and courts rejecting the implied waiver and double capacity constructions gen-
erally assert that alternatively courts may exercise jurisdiction over non-sovereign
¹⁹² Guttieres v Elmilik (Italy, 1886) 922 (trans in GM Badr (1984) 24). Cf also Hamspohn v
Bey di Tunisi F It 1887 474 (Italy, Appello Lucca, 1887) 485–6; Morellet v Governo Danese (Italy,
1882) 130–1; Canale v Governo francese (Italy, 1937). In 1948 the Court of Cassation still relied on
this distinction in Government of Bolivia v Italian Association for Aeronautical Exports, which was
followed in a number of subsequent cases. See also N Wolfman (1910).
¹⁹³ ibid 922.
¹⁹⁴ G Fitzmaurice, ‘State Immunity from Proceedings in Foreign Courts’ (1933) 14 BYIL 101,
121. Cf also A Weiss (1923) 537; P De Paepe, ‘De la compétence civile à l’égard des Etats étrangers
et de leurs agents politiques, diplomatiques, ou consulaires’ (1895) 22 JDIP 31, 33; C De Visscher
(1922) 309; CC Hyde, International Law, chiefly as interpreted and applied by the United States
(1945) ii 844; H Lauterpacht (1951) 224; I Sinclair (1980) 209.
¹⁹⁵ Gamen Hubert v Etat Russe (1919) RCDIP 493 (France, Cour d’Appel de Paris, 1912).
State Immunity 53
acts of foreign states because the nature of such acts does not require courts to
abstain from the exercise of jurisdiction. They do not however recognize that
the—admittedly somewhat strained—constructions served a legitimate goal and
that the proposed alternative requires rethinking the theory underlying the inter-
national law rule of foreign state immunity.
2.3.2 Regime over Rationales

The application of the restrictive rule further exposes the underdeveloped theor-
ization of its foundations. The consensus on the foreign state immunity concept
is limited to the restrictive nature of the rule and does not extend to the modal-
ities of its application. In fact, state practice is far from uniform. The application
of the rule is generally seen to give rise to two distinct problems. First, there is
the theoretical problem of identification of the relevant aspects of a case. Should
regard be had to the purpose or the nature of an act when determining its charac-
ter? Second, at a more practical level there are difficulties classifying the relevant
aspects as either public or private in character.¹⁹⁶ The discussion of both issues
reflects a poor understanding of the nature and the scope of the rule of state
immunity.
The identification issue is often referred to as the nature–purpose contro-
versy: is the qualification of acts under the restrictive theory exclusively based
on the nature of the act, or may its purpose be taken into account? The classic
example to explain the difference is the act of purchasing boots for the army—
which is clearly not sovereign in its nature but can be said to serve a sovereign
purpose.¹⁹⁷ The opposition against an acknowledged relevance of the purpose
of state activity is hardly surprising. Schreuer aptly noted that ‘[o]nce we start
inquiring into the underlying motives of a State partner to a transaction we will
most probably end up with some political purpose somewhere.’¹⁹⁸ The statement
of the US Supreme Court in Berrizi Bros v Pesaro that there was ‘no international
usage which regards the maintenance and advancement of the economic welfare
of a people in time of peace as any less a public purpose than the maintenance and
¹⁹⁶ CH Schreuer (1988) 15.

¹⁹⁷ While a US court declared the act to be of a sovereign nature, an Italian court qualified
the act as non-sovereign: Kingdom of Roumania v Guaranty Trust Co. of New York (US, 1918)
345; Governo Rumeno v Trutta 78 Giu It 1926–I 774 (Italy, 1926). Cf also Victory Transport
Inc. v Comisaria Gen. De Abestecimientos y Transportes (US, 1964) 359, on the nature of the act
as test: ‘While this criterion is relatively easy to apply, it ofttimes produces rather astonishing
results, such as the holdings of some European courts that purchase of bullets or shoes for the
army . . . are private acts.’ (It is noted that nowadays also the US courts agree that ‘the intent of
the purchasing sovereign to use the goods for military purposes does not take the transaction
outside the “commercial exception” to sovereign immunity’, McDonnell Douglas Corp. v Islamic
Republic of Iran 758 F 2d 341 (Ct of Apps (8th Cir), 1985) 349.) Other diverging approaches are
mentioned in the Harvard Law School, Research in International Law (Reporter PC Jessup),
Competence of Courts in Regard to Foreign States (1932 supplement) 26 AJIL 451, 609ff;
H Lauterpacht (1951) 222; I Sinclair (1980) 210.
¹⁹⁸ CH Schreuer (1988) 15.
training of a naval force’¹⁹⁹ is an almost grotesque confirmation of the rationality
of this fear. It is therefore often firmly stated that ‘[a]s a means for determining
the distinction between acts jure imperii and jure gestionis one should rather refer
to the nature of the State transaction or the resulting legal relationships, and not
to the motive or purpose of the State activity.’²⁰⁰ The nature test has been incor-
porated in several national immunity statutes and (draft) conventions and has
been approved by many courts.²⁰¹
The agreement reached is however apparent. It has repeatedly been argued that
the purpose of an act cannot be completely discarded in the qualification pro-
cess since ‘[it] is not possible to classify the nature of any human activity without
reference to its purpose.’²⁰² Crawford has argued that in fact the real issue is
the distinction of narrow and broader aspects of a transaction. He explained that
‘[t]he acceptance of an offer may entail the conclusion of a contract on particular
terms for the purchase of concrete for use in building barracks to house an army
increased in size for particular foreign policy issues.’²⁰³ The broader aspects of a
case may be regarded irrelevant when they are too remote from the activity that is
at the basis of the claim.²⁰⁴ This example, however, fits the classic nature–purpose
distinction quite well, and most scholars would agree that the reasons underlying
the purchase do not alter the ‘private’ nature of the conclusion of the contract that
is at the basis of the claim before the court. The real problem seems to be that in
fact one must not generalize the activity in the qualification process, overempha-
sizing the private nature of a particular aspect of the complex of facts that is at the
basis of the claim. Or, the necessity of identifying the transaction ‘as precisely and
narrowly as is reasonably possible’ may in fact require the taking into account of
the broader aspects of the transaction at the basis of the claim before the court—
indeed to get a full picture of the specific activity complained of.
A quotation taken from International Association of Machinists and Aerospace
Workers v Organization of Petroleum Exporting Countries et al. serves to illus-
trate this seemingly contradictory assertion. Plaintiffs brought an action against
OPEC and its member states alleging that their price-setting activities were
¹⁹⁹ Berrizi Bros v Pesaro (US, 1926) 574.

²⁰⁰ Claim against the Empire of Iran Case (Federal Republic of Germany, 1963) 80.
²⁰¹ After a fierce debate on the issue in the ILC the 2004 UN Convention now provides in art
2.2: ‘In determining whether a contract or transaction is a “commercial transaction” . . . reference
should be made primarily to the nature of the contract or transaction, but its purpose should also
be taken into account if the parties to the contract or the transaction have so agreed, or if, in the
practice of the State of the forum, that purpose is relevant to determining the non-commercial
character of the contract or transaction’.
²⁰² Australian Law Reform Commission, Foreign State Immunity, Report no 24 (1984) § 49.
Cf also J Crawford, ‘International Law and Foreign Sovereigns: Distinguishing Immune
Transactions’ (1983) 54 BYIL 75, 95; I Congreso del Partido (UK, 1981) 272 (per Lord Wilberforce);
Re Canada Labour Code [1992] 2 SCR 50 (Canada, S Ct, 1992) 73.
²⁰³ J Crawford, ‘International Law and Foreign Sovereigns: Distinguishing Immune
Transactions’ (1983) 54 BYIL 75, 95.
²⁰⁴ See CH Schreuer (1988) 22 and J Crawford, ibid 97 for a discussion of the ‘once a trader—
always a trader?’—issue and the complex facts of I Congreso del Partido (UK, 1981).
State Immunity 55
anti-competitive and illegal under US law and claiming damages for injury
caused by having to pay higher petrol prices. They argued that defendants did not
enjoy immunity under the FSIA since the action was based on commercial activ-
ities as provided in section 1605(a)(2) of the Act. The court dismissed the action
on immunity grounds, arguing, inter alia, as follows:
[T]he determining factor is how the court defines the act or activity. An act or activity can
be defined broadly, such as ‘hiring of employees’, an activity carried on by private parties,
and thus ‘commercial’, or it can be defined narrowly, such as, ‘employment of diplomatic,
civil service or military personnel’, a governmental activity. It was suggested that in deter-
mining whether to define a particular act narrowly or broadly, the court should be guided
by the legislative intent of the FSIA, to keep our courts away from those areas that touch
very closely upon the sensitive nerves of foreign countries.
This Court agrees that this ‘commercial activity’ should be defined narrowly. This
determination, while based partially on the factor mentioned above, is premised primar-
ily on the recognition that a court must base its ruling on specific facts. By basing a ruling
on a generalized view of the evidence, a court may be passing its ruling on half-truths.
This Court is required to make its ruling upon the specific evidence presented in the evi-
dentiary hearings and trial. From the evidence presented to this Court, it is clear that
the nature of the activity engaged in by each of these OPEC member countries is the
establishment by a sovereign state of the terms and conditions for the removal of a prime
natural resource . . . from its territory.²⁰⁵
Control over natural resources, concluded the court, is a sovereign function and
when a sovereign state establishes the terms and conditions for removal of natural
resources from its territory it is performing a governmental, not a commercial
activity.
Without theorization the acta jure imperii–acta jure gestionis distinction tends
to direct the focus to the acts at the basis of a claim rather than the activity.
Another—delightfully straightforward—example is found in the Dutch case of
LF and HMHK v Federal Republic of Germany.²⁰⁶ A Dutch national present on
Dutch territory entered into an agreement for the sale and delivery of hashish
with—what later turned out to be—a German undercover agent. The individual
was arrested by the German police upon delivery in Germany and convicted by
a German criminal court to a term of imprisonment of nine years. In proceed-
ings before the Dutch courts the individual applied for an injunction ordering
the FRG to return him to the Netherlands and to pay damages on the ground
that the methods of investigation employed against him and the prosecution and
trial were unlawful. While the individual relied on established case law that a
²⁰⁵ International Association of Machinists and Aerospace Workers v Organization of Petroleum

Exporting Countries 477 F Supp 553 (US, DC, 1979) 567; 63 ILR 284, 291. It is noted that the deci-
sion was affirmed on appeal but on act of state grounds 649 F 2d 1354 (US, Ct of Apps 9th Cir),
(1981); 66 ILR 413.
²⁰⁶ LF and HMHK v Federal Republic of Germany NJ 1987 No 955 (Netherlands, Rechtbank
Haarlem, 1986); 20 NYIL 1989 285–9.
foreign state does not enjoy immunity when it enters into a legal relationship on
an equal footing with individuals; the court placed the disputed contract in a
broader context—thus defining the activity at hand more ‘narrowly’—and found
that Germany was immune from the jurisdiction of the Dutch courts since the
disputed acts were performed in the exercise of a public law function.²⁰⁷
Also immunity decisions in labour disputes between a foreign state and its
employees working at an embassy or consulate in the forum state cannot be
explained on the basis of a strict public–private act distinction. Exceptions exist,
of course. A French national employed as head of the visa section of a French
consulate in Austria sued France in an Austrian court for breach of contract and
unpaid salary. The Austrian Supreme Court considered that ‘[w]here a foreign
State acts as the holder of private rights and concludes a contract of employment
for work to be performed on the territory of the State of the forum, that foreign
State can also be subjected to proceedings concerning the employment relation-
ship. What must be examined is not the purpose of the work but the nature of
the employment obligations.’²⁰⁸ In general, however, courts attach importance to
the question whether the proceedings would interfere with the exercise of public
authority rather than to the nature of the contract under consideration alone.
No agreement exists, however, as to when proceedings constitute an unlawful
interference. Some courts regard the mere fact that an individual was employed
at an embassy or consulate a sufficient reason for the grant of immunity; others
inquire into the type of activities performed by the individual or the type of claim
instigated.²⁰⁹
It was noted earlier that in addition to the quandary of identification of
the relevant aspects, the question of classification troubles the application of
the restrictive immunity rule. Many scholars have in fact questioned whether the
distinction between acta jure imperii and acta jure gestionis—or that between the
sovereign/public and non-sovereign/private acts of a state—forms a satisfactory
formulation of the restrictive immunity rule. In 1963 Brierly noted that the dis-
tinction ‘although superficially attractive as a means of keeping state immunity
²⁰⁷ Cf for a more dubious case: Heaney v Government of Spain and Adolpho Gomero 445 F 2d
501 (US, Ct of Apps 2nd Cir, 1971), 57 ILR 153. The court qualified a contract between Spain
and Mr Heaney in which the latter undertakes to generate adverse publicity against the UK with
the purpose to oust the UK from Gibraltar as a strictly political or public act and granted Spain
immunity in a dispute concerning payment under the contract.
²⁰⁸ French Consular Employee Claim Case (Austria, S Ct, 1989) 86 ILR 583.
²⁰⁹ See for a comprehensive overview of case law R Garnett, ‘State Immunity in Employment
Matters’, 46 ICLQ 1997 81; H Fox, ‘Employment Contracts as an Exception to State Immunity: Is
All Public Service Immune?’, 66 BYIL 1995 97. The 2004 UN Convention employment contracts
are explicitly excluded from the definition of ‘commercial transaction’. Art 11 of the Convention
determines that states are immune in respect of employment contracts concerning personnel
‘recruited to perform particular functions in the exercise of governmental authority’, concerning
diplomatic agents, consular officers, and persons representing them at international organizations
and conferences. Moreover, they are immune if ‘the subject-matter of the proceeding is the recruit-
ment, renewal of employment or reinstatement of an individual’.
State Immunity 57
within reasonable limits, does not rest on any sound logical basis; it involves mak-
ing assumptions as to what are the proper functions of government which might
be justifiable assumptions according to the laissez-faire theories of the nineteenth-
century but may seem arbitrary today in a world community which contains
socialist and communist as well as capitalist states.’²¹⁰ These concerns are echoed
in the observation of Brownlie that ‘there is a logical contradiction in seeking to
distinguish the “sovereign” and “non-sovereign” acts of a State. In attempting to
apply such a distinction, municipal courts inevitably apply the ideological con-
ceptions and policy preferences of the particular forum.’²¹¹
A common response to the elusive nature of the restrictive rule has been that
acts should be classified according to national law standards—the lex fori. Thus,
in Claim against Empire of Iran the German Bundesverfassungsgericht considered
that ‘the classification of a State’s function (according to the legal nature of the
act) as governmental or non-governmental must be determined according to cur-
rent domestic law, as international law does not, as a rule, include criteria for such
a delineation’.²¹² Cosnard asserted in this respect that ‘[l]e principe de la qualifi-
cation des activités litigieuses par la loi du for est maintenant bien établie.’²¹³
The idea of forum state discretion underlies for example the distinction
between private law acts and public law acts as a criterion for the application of
the restrictive immunity rule, relied on in many civil law countries, and in par-
ticular in France. Already the fact that a similar classification of acts is unknown
to common law countries and can therefore not be the criterion for distinction,
indicates that this is a solution at the national, not the international level.²¹⁴ An
alternative criterion—partially developed in response to the particulars of the
common law system—is the test whether the act concerned could, by its very
nature, equally have been committed by a private person. This test was already
proposed by Weiss in 1923.²¹⁵ Several influential scholars—including Jennings
and Higgins—have expressed support for this solution.²¹⁶ Although this test
leaves somewhat more room for objective classification of the facts of the case
²¹⁰ JL Brierly, The Law of Nations, An Introduction to the International Law of Peace (H Waldock
(ed), 6th edn, 1963) 250. Cf also H Lauterpacht (1951) 224: ‘the distinction between acts jure ges-
tionis and acts jure imperii cannot be placed on a sound logical basis’.
²¹¹ I Brownlie (Rapporteur Institut de Droit International) Contemporary Problems
Concerning the Jurisdictional Immunity of States, Preliminary Report (1987), 62–I AIDI 1987 13,
27. Cf also Australian Law Reform Commission, Foreign State Immunity, Report no 24 (1984), §
48; CH Schreuer (1988) 7; WTR Fox, ‘Competence of Courts in Regard to “Non-Sovereign” Acts
of Foreign States’, 35 AJIL 1941 632.
²¹² Claim against the Empire of Iran Case (Federal Republic of Germany, 1963), 80. Cf also
Church of Scientology Case (FRG, Federal S Ct, 1978), 65 ILR 193, 196–7.
²¹³ M Cosnard (1996) 342.
²¹⁴ See R Higgins (1982) 268; Australian Law Reform Commission, Foreign State Immunity,
Report no 24 (1984) § 48.
²¹⁵ A Weiss (1923) 545.
²¹⁶ R Jennings (1988) 8; R Higgins (1994) 84. Cf also Federal Republic of Germany, Claim
against the Empire of Iran Case (1963) 80; Switzerland, Tribunal federal Suisse, Aff aire Etat de
Koweït v XSA (1994), Pratique Suisse 1994, no 3.1, 5 RSDIE 1995, 593ff.
than a strict adherence to the applicable law distinction, it is clear that ultimately
national law conceptions will influence the qualification process.
Reliance on the lex fori in the application of the restrictive immunity rule is
however far from uncontroversial. De Visscher and Verhoeven argued that, state
immunity being a rule of international law, international law should define the
concepts used to apply the rule, or, should at least be at the basis of such a def-
inition.²¹⁷ And indeed, acceptation of the proposition that the forum state has
discretion in classifying acts for the purpose of the application of the restrictive
theory necessarily entails the negation of the existence of a rule of state immunity
in international law. Crawford rightly considered that the lex fori principle can
only mean that international law ‘does not require immunity to be accorded to
foreign State defendants . . . in any case’.²¹⁸ He argued that ‘as soon as it is con-
ceded that . . . international law does require some immunity, then international
law distinguishes to that extent between immune and non-immune transactions,
and the question becomes on what basis it is doing so. . . . The initial assumption
should be that international law does allow such distinctions to be drawn, that it
does not leave them to the uneven discretion of forum States.’²¹⁹ The criticism is
compelling. Moreover, it may be clear that it applies with equal force to a reliance
on the law of the defendant state,²²⁰ and a fortiori to a reliance on a defendant
state’s own characterization of the act.²²¹ It is recalled that the thought under-
lying the adoption of the lex fori principle is that the criterion used to define the
restrictive rule cannot be applied with reference to the system of law to which
the rule belongs. A complete deference to lex fori would however deny the rule
any basis in international law. Interestingly enough, the supporters of the lex
fori principle are not prepared to go this far. In the Claim against Empire of Iran
case the court stressed that ‘[n]ational law can only be employed to distinguish
between a sovereign and a non-sovereign activity of a foreign State insofar as it
cannot exclude from the sovereign sphere, and thus from immunity, such State
dealings as belong to the field of State authority in the narrow and proper sense,
according to the predominantly-held view of States. In this generally recognizable
field of sovereign activity are included transactions relating to foreign affairs, and
²¹⁷ P De Visscher & J Verhoeven (1971) 60–1. Cf also Airport Linz v United States (Austria,
S Ct, 2004), discussed in a case note of S Wittich (2005), 99 AJIL 248; Dralle v Republic of
Czechoslovakia, (Austria , 1950); Floridi v Sovexportfilm (Italy, 1951), Annali X (1952) 115.
²¹⁸ J Crawford (1983) 78.
²¹⁹ ibid 78. Cf also CH Schreuer (1988) 33.
²²⁰ Cf for such reliance Etat italien v X (Switzerland, Cour d’appel de Bâle-Ville, 1985),
42 ASDI 1986 60, 61–2.
²²¹ Cf Russian Trade Delegation in Italy v Kazmann (Italy, Court of Cassation, 1933), 7 AD 178,
case no 69 where the court granted immunity to a Russian state agency engaged in commercial
activity because ‘trading abroad is regarded by the Russian State as a function of an essentially
public character’ and that ‘it is so treated by the internal ordering of that State under which there
is established in this respect, by the Constitution itself, a monopolistic regime, controlled by a
People’s Commisar’; Feldman v Etat de Bahia (Belgium, Cour d’appel de Bruxelles, 1907), RCDIP
1909 956.
State Immunity 59
military authority, the legislature, the exercise of police authority, and the admin-
istration of justice.’²²² And also Cosnard eventually qualified his argument that
‘les États sont libre de déterminer pour leur propre compte la manière dont ils
appliqueront ce principe à l’égard des autres États’²²³ with the consideration that
such occurs ‘sous réserve de [la] compatibilité [de la loi du for] avec le droit inter-
national, afin d’éviter de trop grandes distorsions entre les décisions’.²²⁴
In addition to the general definitional problem, it has been argued that the
public–private act distinction does in fact not account for all exceptions to the
rule of state immunity. Crawford, for example, has argued that the so-called
territorial tort exception cannot be explained by reference to the distinction.²²⁵
The exception—included in almost all national legislations and international
(draft) conventions—regards acts qualifying as tortious under the lex loci delicti
commissi that are closely connected to the territory of the forum state and cause
physical injury or loss or damage to property.
In sum, the problems with the identification and classification of activity for
the purpose of the application of the restrictive state immunity rule are a symptom
of a wider problem. The requirements of international law cannot be explained
by reference to a strict public–private act distinction. The formulation of the
restrictive rule as protecting states from foreign jurisdiction as regards their pub-
lic acts but not as regards their private acts may be seen to detach the rule from its
rationales. It must be concluded that state immunity practice reinforces the need
to study the basis of the rule in international law. If the public–private act distinc-
tion is not at the heart of the rule, what is? What exactly are the requirements of
international law? Ironically enough, the troubled application of the restrictive
rule has only served to alienate courts and scholars even further from a principled
approach to the requirements under international law. Courts and scholars alike
have directed all efforts on the formulation of the applicable regime while the
theory justifying and explaining this regime is often disregarded.
In a rather fatalistic vein, some scholars argued that the absolute immunity
doctrine was the only sound alternative.²²⁶ Lauterpacht came to the opposite
conclusion. He advanced the view that international law did not oblige states
²²² Claim Against the Empire of Iran Case (Federal Republic of Germany, 1963) 81.
²²³ M Cosnard (1996) 25.
²²⁴ ibid 342. Cf also G Ress (Rapporteur International Law Association), First Report on
Developments in the Field of State Immunity since 1982, Report of the Sixty-fourth Conference
(1990) 393, 396–7; G Dahm, ‘Völkerrechtliche Grenzen der Inländischen Gerichtsbarkeit
gegenüber auslandischen Staaten’, in Festschrift für Arthur Nikisch (1958) 153, 167; M Panebianco,
Giuridisdizione interna e immunità degli Stati stranieri (1967) 120.
²²⁵ Australian Law Reform Commission, Foreign State Immunity, Report no 24 (1984)
§ 51. Cf also J Bröhmer, State Immunity and Human Rights Violations (1997) 60, 140 and 222;
L Caflisch, Immunité de Juridiction et Respect des Droits de l’Homme, in L Boisson de Chazournes
and V Gowlland-Debbas (eds), The International Legal System in Quest of Equity and Universality
(2001) 651, 656.
²²⁶ G Fitzmaurice (1933) 124. Cf also C Fairman, ‘Some Disputed Applications of the Principle
of State Immunity’ (1928) 22 AJIL 569; R Provinciali (1933).
to grant jurisdictional immunity to other states.²²⁷ Foreign states, he argued,
should be made
accountable before otherwise competent courts in respect of claims put forward against
it in the matter both of contract and tort in the same way in which the domestic state is
subject to the law administered by the courts.²²⁸
Less drastic proposals have attempted to formulate a workable regime based on
a restrictive approach to the rule of state immunity. Some scholars proposed to
deny immunity as regards commercial acts rather than non-sovereign acts.²²⁹
More popular is the breaking up of the concept of non-sovereign acts in a set of
specific descriptions of different categories of activity in regard of which states
may be subjected to foreign jurisdiction. All national codifications of the state
immunity rule, as well as the European Convention on State Immunity, the UN
Convention on the Jurisdictional Immunities of States and their Property, and
most draft conventions prepared by international learned bodies have adopted
this approach of a basic immunity rule with the enumeration of multiple criteria
for the distinction of non-immune transactions.²³⁰
The formulation of multiple non-immunity criteria of course does not solve
the substantive differences of opinion on the extent of immunity required in
international law. Exactly because of the different accents placed by states in
the inviduation process and the differences in the notion of public authority
prevalent in each state, the codification of the restrictive rule in an authoritative
multilateral convention has not been easy.²³¹ The advantage of the approach is
limited to the replacement of the strained concept of public or private acts as the
decisive criterion with a more tangible, more workable set of well-defined situ-
ations in which in no immunity is available. The multiple criteria approach to
²²⁷ H Lauterpacht (1951) 228.

²²⁸ ibid 226.
²²⁹ JP Niboyet, ‘Les immunités de juridiction en droit français, des états étrangers engagés dans
des transactions privées’ (1936) 43 RGDIP 525, 532. The distinction between commercial and
other acts of states has however been rejected by many others: cf eg Claim Against the Empire of Iran
Case (FRG, 1963) 80.
²³⁰ A notable exception is the Resolution adopted by the the Institut de Droit International
(Rapporteur I Brownlie), Resolution on Contemporary Problems Concerning the Jurisdictional
Immunity of States (1992), 64–II AIDI 1992 267. The Resolution contains two sets of counter-
vailing critera that argue in favour or against competence over foreign states. Also the ILA Draft
Articles for a Convention on State Immunity hint at a somewhat different approach. Article II
states that ‘[i]n general, a foreign State shall be immune from the adjudicatory jurisdiction of a
forum State for acts performed by it in the exercise of its sovereign authority, i.e. iure imperii. It
shall not be immune in the circumstances provided in article III.’
²³¹ In 2004 the 1991 ILC Draft Articles finally led to the adoption of the UN Convention
on Jurisdictional Immunities of States and their Property (GA Resolution 59/38 (2004). The
Convention must now secure sufficient ratifications in order to escape the faith of the European
Convention on State Immunity that was only ratified by eight states.
State Immunity 61
the restrictive theory clearly does not solve the problem of distinction, rather, it
‘replace[s] one big intractable problem by a series of smaller, easier ones’.²³²
The disadvantages of the multiple criteria approach may not be as readily dis-
cernable. The formulation of the rule as a basic rule of immunity with a list of
exceptions to it has, however, considerable repercussions for the theory of state
immunity since it detaches the rule even further from the requirements of inter-
national law. Clearly, ‘the rule of international law will be one which defines, or
limits, the cases where immunity from jurisdiction ought to be allowed, rather
than one defining the area of non-immunity’.²³³ This reality is not—to put it
mildly—unequivocally reflected in the multiple criteria approach to the state
immunity rule. When the rule is formulated through the listing of the widely
accepted exceptions to it, it no longer has a reference to concepts that explain its
basis in international law. Although it is generally emphasized that the focus on
the exceptions in the multiple criteria approach is ‘a matter of legislative conveni-
ence’ that allows no inferences as to a general rule of international law requiring
immunity,²³⁴ and it has been argued that the exceptions are fashioned ‘taking into
account the reasons for according immunity or for asserting jurisdiction in that
specific context’,²³⁵ Brownlie rightly remarked that ‘[t]here is a complete absence
of reference to the indicia which favour “immunity ratione materiae” . . . Indeed,
one may suspect that some lawyers have the curious assumption that it is heretical
to study the legal geography on both sides of the line between immunity and no
immunity.’²³⁶
Despite all assurances to the contrary the multiple criteria approach depicts
the state immunity rule as the continuation of the absolute rule with exceptions
accepted to it. For example, Jessup in one of his comments on the 1932 Harvard
Research Project, wrote:
The general proposition that a State may not be made a respondent in the courts of another
State is widely accepted. It is the usual point of departure in the discussion of jurists, and
in the opinions of courts. The rule is said to be implicit in the principles of the independ-
ence and the equality of States. One sovereign can not exercise jurisdiction over another:
jurisdictio inhaeret, cohaeret, adhaeret imperio; par in parem non habet imperium.
...
As a fundamental rule of departure, the rule regarding State immunity per-
sists . . . Exceptions, however, have made their appearance as the necessities of modern life
have changed and developed.²³⁷
²³² CH Schreuer (1988) 8.

²³³ R Jennings (1988) 9.
²³⁴ CH Schreuer (1988) 7.
²³⁵ Australian Law Reform Commission, Foreign State Immunity, Report no 24 (1984) § 52.
²³⁶ I Brownlie (Rapporteur Institut de Droit International), Contemporary Problems
45, 49.
²³⁷ Harvard Law School, Research in International Law (Reporter PC Jessup), Competence of
Courts in Regard to Foreign States 1932 (supplement) 26 AJIL 451, 527 (comment on art 7).
The idea that the exceptions to the rule of state immunity should be derived from
a close examination of state practice regarding the rule in order to identify suffi-
cient precedents supporting a particular exception is not uncommon. The consid-
eration of the Canadian Supreme Court in the 2002 case of Schreiber v Canada
that ‘[o]ver the years, the general principle of sovereign immunity has been atten-
uated somewhat, and certain exceptions to the general rule have emerged’,²³⁸
may be seen to express a widespread conviction in international legal theory.
The approach traces to the common law countries that once adhered to an abso-
lute state immunity rule. We saw earlier, however, that international law never
required states to grant other states absolute immunity from their jurisdiction.
Rather, the international law rule has always been limited to the acta jure imperii
of foreign states.
The definition of the international law rule in terms of an absolute rule with
customary law exceptions accepted to it influences the debate on the human
rights exception to state immunity. On the one hand the form of the argument of
opponents of the human rights exception clearly relies on this inductive approach
to the emergence of exceptions to a basic principle of state immunity. On the
other hand the substance of arguments of both proponents and opponents suffers
from the focus on the regime of the law of state immunity rather than its ration-
ales. The debate fails to recognize the qualitative difference between the commer-
cial activity exception and a possible human rights exception to state immunity
rules. Is the grant of state immunity to a foreign state in a commercial dispute of
the same nature as the grant of state immunity to a foreign state in a dispute con-
cerning alleged abuse of police power within that state’s own borders?
In section 3 below it will be explained why it is not. Here only a tip of the veil is
lifted through the discussion of a particularly insightful perspective on the state
immunity rule developed by Anzilotti in 1910.²³⁹ Anzilotti noted that the abso-
lute and restrictive immunity theory are not mutually exclusive since they do not
operate on the same level. However, both the adherents of the restrictive as well as
those of the absolute theory failed to convince: the first by not reasoning beyond
principle and the second by insisting on reasoning from principle. The restrictive
theory, he argued, only establishes the possibilities from which international law
can develop limitations.²⁴⁰ Italian courts, he argued, in applying the restrictive
doctrine fail to acknowledge that through the practice of states an international
custom of absolute immunity had developed. The adherents of an absolute theory,
on the other hand, were held to mistakenly argue that that theory was rooted in
the quality of the state, asserting a fundamental impossibility to exercise foreign
jurisdiction over it. Under reference to the well-established immovable property
²³⁸ Schreiber v Canada (Attorney General) [2002] 3 SCR 269 (Canada, S Ct, 2002) § 15, see also
§ 17. Cf also Bouzari v Islamic Republic of Iran (Canada, Ontario CA, 2004) available at <http://
www.ontariocourts.on.ca/decisions/2004/june/bouzariC382.htm> 95, § 41.
²³⁹ D Anzilotti (1910).
²⁴⁰ ibid 499.
State Immunity 63
exception to state immunity, Anzilotti explained that once it is admitted that

some exceptions to state immunity are allowed the argument that the principle of
the equality of states requires state immunity as a basic rule is no longer coher-
ent. The nature of the obligation to grant immunity from jurisdiction to for-
eign states, he argued, does not differ from that under other immunity rules like
for example diplomatic immunity. The question is whether a state has a right to
immunity with regard to those acts for which it can be subjected to the jurisdic-
tion of another state.²⁴¹ This right, he argued, would have to be established by the
collective will of states.²⁴² In the proposed perspective, the principles relied on
by adherents of the absolute theory—the dignity, equality, and independence of
sovereign states—are but the material causes of the customary practice that has
formed the rule.²⁴³
The gist of the argument advanced by Anzilotti can be restated as an identi-
fication of the difference between necessary and voluntary immunity rules with
the restrictive theory falling within the first and the absolute theory within the
latter category.²⁴⁴ The article did not expand on the concept of necessary immun-
ity rules. It was taken for granted that as regards acta jure imperii states could
not be subjected to each other’s jurisdiction. It was only explained that beyond
this impossibility, rooted in the principles of international law, states had devel-
oped a customary rule of absolute state immunity with the principles of dignity,
equality, and independence of states as mere material causes of state practice.
Hence, from a contemporary perspective this would compel the conclusion that
the development of a restrictive immunity concept entails a qualitative and not a
mere quantitative change as compared to the absolute immunity concept.²⁴⁵
Also the illustrious proposal of Lauterpacht may be seen to appear in a dif-
ferent light when put in this perspective. In his seminal 1951 article on state
immunity Lauterpacht advocated the abolition of the rule of state immunity. He
argued that there is no rule of international law that obliges states to grant juris-
dictional immunity to other states—a rather bold statement indeed.²⁴⁶ Instead,
he proposed, a foreign state should be made accountable ‘before otherwise com-
petent courts in respect of claims put forward against it in the matter both of
contract and tort in the same way in which the domestic state is subject to the
law administered by the courts’.²⁴⁷ It has often been remarked that Lauterpacht’s
proposal did not in fact amount to an abolition of the rule of state immunity.
²⁴¹ ibid 503.

²⁴² ibid 504.
²⁴³ ibid 515.
²⁴⁴ It recalls the distinction between natural law and voluntary law as found already in the
work of H Grotius, De Jure Belli ac Pacis (1625) translated by LR Loomis (1949) ii 193–200. Th is
distinction—and the fundamental difference between natural and necessary law—is further
elaborated below.
²⁴⁵ Cf GM Badr (1984) 134.
²⁴⁶ H Lauterpacht (1951) 228.
²⁴⁷ ibid 226.
Crawford, for example, pointed out that although Lauterpacht went close to abo-
lition he ‘allowed a quite extensive area of immunity in as it were, through the
back door’.²⁴⁸ In fact, Lauterpacht followed his proposal for abolition of the rule
with the caveat that immunity must remain the rule in respect of:
1. the legislative acts of a foreign state and of measures taken in pursuance thereof;
2. the executive and administrative acts of a foreign state within its territory (e.g. alleged
unjustified expulsion, exaction of dues, wrongful imprisonment or, generally, denial
of justice.) In particular, no action should lie with regard to torts committed by
foreign states and their organs in their own territory.
3. contracts that by virtue of private international law are outside the jurisdiction of the
forum state;
4. matters to which the law of diplomatic immunity applies.²⁴⁹
If the category of acts singled out by Lauterpacht overlaps with the acts for which
immunity exists under the restrictive theory this does not necessarily mean that
he qualified his proposal to abolish the rule of immunity. Rather, it may sug-
gest that the category of acts protected by the restrictive theory is in fact outside
the jurisdiction of foreign courts on grounds unrelated to the classical immun-
ity from jurisdiction concept. In this respect, the caveat ‘otherwise competent
courts’ may very well be an allusion to these categories of residual ‘immunity’.²⁵⁰
Clearly, the third category is unrelated to immunity law. Lauterpacht explained
that the abolition of immunity ‘should not place the foreign state in a position less
advantageous than that of private individuals’.²⁵¹ States would in these circum-
stances not enjoy immunity from the jurisdiction of foreign courts; rather these
foreign courts would not be able to establish jurisdiction in the first place. Does a
similar consideration not apply to the first and the second category? Admittedly,
Lauterpacht himself did not elaborate on this issue. At the risk of reading too
much in his words, it is argued here that Lauterpacht, with the simultaneous
abolition of the rule of state immunity and formulation of the four categories,
recognized the essentially different nature of the rule of absolute immunity and
what is called the rule of restrictive immunity.
The problem with the standard approach to state immunity is that it employs
the terminology of a voluntary immunity concept with a focus on customary obli-
gations and marginal regard to principle while the immunity concept as applied
today may very well qualify for the most part within the category of necessary
obligations. Courts, although eventually willing to change their practice to adapt
to economic reality, have proven unable to adapt the theory to the reality of this
new practice.
²⁴⁸ J Crawford (1983) 78, fn 14.

²⁴⁹ H Lauterpacht (1951) 237.
²⁵⁰ Apart from category 4 which refers to the separate topic of diplomatic immunity discussed
in ch 4 of this study.
²⁵¹ H Lauterpacht (1951) 238.
State Immunity 65
3 The Independence and Equality of States as Limits on the

Essential Competence of National Courts
3.1 Introduction
Dworkin pointedly noted that ‘[d]iscretion, like the hole in a doughnut, does
not exist except as an area left open by a surrounding belt of restriction.’²⁵² The
almost casual observation of Cosnard that the discretion of national courts to
have regard to their lex fori is of course subject to ‘les limites raisonnables’ or even
more specific to the ‘compatibilité avec le droit international’ affirms that the rule
of restrictive state immunity can ultimately be defined in terms of international
law.²⁵³ The limits to the discretion are the parameters of the obligation under
international law. These limits can be explained by reference to two fundamental
principles of international law: the independence and equality of states.
This section will approach the requirements of international law in regard to
national court proceedings against foreign states from the perspective of these
two principles. The thesis advanced by Brownlie—and a handful of other
scholars—that in substance the rule of state immunity as we know it today in
fact reflects the operation of several principles of international law regarding the
essential competence of national courts will prove convincing and relevant. In
this respect, the definition of the rule adopted by the Italian Corte di Cassazione
is particularly instructive. Foreign states, the court considered, are exempt from
jurisdiction with regard ‘to those relations which remain completely outside the
Italian legal order or because those States act, albeit within the territory of some
other States, as subjects of international law, or because they act as the holders of
a power of command within their own legal order and within the limits of their
own territory’.²⁵⁴ This definition reveals the two distinct issues of competence
cloaked under the concept of state immunity for acta jure imperii. On the one
hand there is the division of competence between national courts—the horizon-
tal division—based on the principle of non-interference, and inherent in the rec-
ognition of the exclusive competence of states to exercise certain powers on their
territory independent from other states; on the other hand there is the division
of competence between national courts and international dispute settlement
procedures—the vertical division—based on the principle of equality of states,
and inherent in a non-hierarchical international legal order. The reformulation
of the restrictive rule of state immunity in terms of non-competence allows us to
make several pertinent observations regarding the nature and substance of the
²⁵² R Dworkin, Taking Rights Seriously (1977) 31.

²⁵³ See n 224 above.
²⁵⁴ Campione v Peti-Nitrogenmuvek NV and Hungarian Republic 65 ILR 287 (Italy, Court of
Cassation, 1972) 300. Cf also Kingdom of Greece v Gamet 28 ILR 153 (Italy, Court of Cassation,
1959).
law of state immunity. In particular, it will be argued that the distinction of the
concept of immunity from the concept of incompetence has consequences for the
parameters of coherent arguments in the debate on a human rights exception to
state immunity rules.
3.2 The Independence and Equality of States

3.2.1 Non-Interference in the Exercise of Sovereign Authority
It is sometimes argued that since the notion at the root of sovereignty is superior-
ity the term is ill-fitted to describe the state in its relations with other states.²⁵⁵
It may be clear, however, that such reasoning confuses the internal and exter-
nal aspect of sovereignty. External sovereignty does not regard absolutist power
of states in the international legal order; it is but the other side of the medal of
internal sovereignty when recognized by other states. In fact it reflects the co-
existence of and cooperation between states on a basis of juridical equality rather
than superiority, since states are essentially equal in their sovereign status. The
notion of external sovereignty serves to secure the independent exercise of the
competences attributed to the state under international law and guarantees states
the right to respect for one’s statehood.
Judge Alvarez famously wrote in the Corfu Channel case that
[b]y sovereignty, we understand the whole body of rules and attributes which a state pos-
sesses in its territory, to the exclusion of all other states, and also in relation with other
states.²⁵⁶
It may be more instructive to say that international law recognizes a bundle of
competences that all states possess—including a body of exclusive territorial com-
petences—and that the notion of sovereignty serves to establish that states have
the right to exercise these competences independently and on a basis of equality
with other states. As Judge Huber explained in the Palmas Islands case:
Sovereignty in the relations between States signifies independence. Independence in
regard to a portion of the globe is the right to exercise therein to the exclusion of any
other State, the functions of a State. The development of the national organisation of
States during the last few centuries and, as a corollary, the development of international
law, have established this principle of the exclusive competence of the State in regard
to its own territory in such a way as to make it the point of departure in settling most
questions.²⁵⁷
²⁵⁵ JL Brierly, ‘The Shortcomings of International Law’ (1924) 5 BYIL 4, 12. Cf also L Henkin,
‘The Mythology of Sovereignty’ in RSJ MacDonald (ed), Essays in Honour of Wang Tieya (1994)
351, 352.
²⁵⁶ Corfu Channel Case (United Kingdom v Albania) (Merits), ICJ Reports 1949 4, Individual
Opinion Judge Alvarez 39, 43.
²⁵⁷ Island of Palmas Case (Netherlands v United States) 2 RIAA 829 (PCA, 1928) 838. Crawford
used a combination of the two definitions: ‘[i]n its most common modern usage, sovereignty is the
State Immunity 67
This right to an independent and exclusive exercise of certain powers with regard
to a certain portion of the globe has as a necessary corollary the obligation of
states not to exercise those powers within the territory of other states without
their consent, and to refrain from interfering in the exercise of another state’s
powers that qualify as exclusive under international law. The principle that
‘[e]very State has the right to independence and hence to exercise freely, without
dictation by any other State, all its legal powers, including the choice of its own
form of government’ is clearly mirrored in the principle that ‘[e]very State has the
duty to refrain from intervention in the internal or external affairs of any other
State.’²⁵⁸
Territorial boundaries provide a clear-cut limit for the exercise of imperium.
When the Dutch police wishes to continue its pursuit of a criminal suspect that
takes refuge in Belgian territory it will need to cooperate with Belgian author-
ities to accomplish the arrest. It needs little explanation that the abduction of
Adolf Eichmann by Israeli authorities from Argentine soil with the purpose of
putting him on trial in Israel violated the territorial integrity and the sovereignty
of Argentina. More subtle however, is the limit put on the exercise of imperium
within a state’s own territory so as not to interfere with another state’s exercise of
imperium. The principle of non-interference imposes that states may not exer-
cise their exclusive state authority as regards issues that fall within the exclusive
authority of another state. The independence of a state may be illusory when other
states—even though not physically crossing borders to substitute the authority of
the state with theirs—can order it to adopt or abandon a certain policy as regards
the exercise of its exclusive territorial authority through the exercise of jurisdic-
tion by their courts. Moreover, the assessment of responsibility of the state for
damages resulting from alleged wrongdoings committed in the course of exercise
of state authority by the courts of a foreign state implies an authority over the
sovereign activity of the state that a foreign state does not have. The equality and
independence of states forbids courts to exert their jurisdiction so as to require a
foreign state to exercise its imperium in a certain way, or to order them to indem-
nify those that suffered damages from the exercise of imperium. State immunity
can be seen to be the device developed to prevent the interference in the exclu-
sive state authority as recognized by international law by the exercise of foreign
adjudicative jurisdiction.²⁵⁹
term for the “totality of international rights and duties recognized by international law” as residing
in an independent territorial unit—the State’, J Crawford, The Creation of States in International
Law (1979) 26 quoting the Reparation for Injuries Case.
²⁵⁸ Articles 1 and 3 of the 1949 ILC Draft Declaration on Rights and Duties of States, YBILC
1949 286, 287.
²⁵⁹ Even when states have agreed to certain international dispute settlement procedures with
regard to alleged violations of international standards applicable to the exercise of exclusive ter-
ritorial competences—like diplomatic protection as regards the treatment of aliens and human
rights tribunals as regards the treatment of individuals generally—claims can usually only be insti-
gated after local remedies have been exhausted.
The isolation of the acta jure imperii–acta jure gestionis distinction from the
concept of imperium protected in international law is arguably responsible for the
confusion on the so-called territorial tort exception. This exception is included
in almost all (draft) codifications of the rule of state immunity at the national
and international level. The basic tenet of the exception is that state immunity is
excluded for acts qualifying as tortious under the lex loci delicti commissi that are
closely connected to the territory of the forum state and cause physical injury or
loss or damage to property.²⁶⁰ The FSIA for example provides in § 1605 (a) (5)
that foreign states are not immune from US jurisdiction in cases
in which money damages are sought against a foreign state for personal injury or death,
or damage to or loss of property, occurring in the United States and caused by the tor-
tious act or omission of that foreign state or of any official or employee of that foreign
state while acting within the scope of his office or employment; except this paragraph
shall not apply to:
(a) any claim based upon the exercise or performance or the failure to exercise or
perform a discretionary function regardless of whether the discretion be abused, or
(b) any claim arising out of malicious prosecution, abuse of process, libel, slander, mis-
representation, deceit or interference with contract rights.²⁶¹
Article 12 of the UN Convention on Jurisdictional Immunities of States and
their Property formulates the exception as follows:
Unless otherwise agreed between the States concerned, a State cannot invoke immun-
ity from jurisdiction before a court of another State which is otherwise competent in a
²⁶⁰ Formulation of the exception in the various (draft) codifications differs as regards the terri-
torial nexus requirement and the type of injury or damage for which the foreign state may be held
accountable. See especially Report no 24, § 115 on the limitation to loss or damage to tangible
property only. In light of the strict territorial nexus requirement the lex loci delicti commissi will
almost always be the law of the forum state, cf CH Schreuer (1988) 53; Report of the ILC on the
work of its thirty-sixth session (1984), YBILC 1984 ii (part two), 66, § 3.
²⁶¹ US, Foreign Sovereign Immunities Act of 1976, Public Law 94–583, 90 Stat. 2891,
reproduced in (1976) 15 ILM 1388. See for other examples s 5 of the UK State Immunity Act
1978, reproduced in (1978) 17 ILM 1123; s 13 of the Australian FSIA, reproduced in (1986) 25
ILM 715; s 6 of the Canadian SIA, reproduced in (1982) 21 ILM 798; art 2 of the Argentinean
immunity statute, La Ley 24.488, Immunidad Jurisdiccional de los Estados Extranjeros ante los
Tribunalos Argentinos (1995), reproduced in A Dickinson, R Lindsay and JP Loonan (eds), State
Immunity, Selected Materials and Commentary (2004); s 6 of the South African FSIA, reproduced
in UN-Materials ST/LEG/SER.B.20, 34; art 11 of the European Convention on State Immunity,
reproduced in (1972) 11 ILM 470; art 12 of the UN Convention on Jurisdictional Immunities
of States and their Property (2004) (based on art 12 of the ILC Draft Articles on Jurisdictional
Immunities of States and their Property (1991), YBILC 1991 ii (part two) 13; art III F of the Draft
Articles for a Convention on State Immunity, Report of the Sixtieth Conference (1982), p 5ff and
325ff as revised by the Final Report on Developments in the Field of State Immunity and Proposal
for a Revised Draft Convention on State Immunity for the ILA Buenos Aires Conference in 1994,
Report of the Sixty-sixth Conference (1994) 452ff ; art II (e) of the Resolution of the Institut de
Droit International on Contemporary Problems Concerning the Jurisdictional Immunity of States
(1992), (1992) 64–II AIDI 267. The Pakistan Ordinance does not contain the exception, while art
6(e) of the Inter-American Draft Convention on Jurisdictional Immunity of States is limited to
commercial torts.
State Immunity 69
proceeding which relates to pecuniary compensation for death or injury to the person, or
damage to or loss of tangible property, caused by an act or omission which is alleged to be
attributable to the State, if the act or omission occurred in whole or in part in the territory
of that other State and if the author of the act was present in that territory at the time of
the act or omission.
The exception is not uncontroversial. Several states argue that it violates the rule
that states are immune for their acta jure imperii. The classic case applying the acta
jure imperii–acta jure gestionis distinction to claims concerning torts allegedly
committed within the territory of the forum state is the Austrian Holubek case.²⁶²
Plaintiff in this case brought an action for damages for negligence against the US
alleging his car had been damaged by negligent driving of a car owned by the US.
The Austrian Supreme Court rejected a plea for state immunity on the following
consideration:
an act must be deemed to be a private act where the State acts through its agencies in the
same way as a private individual can act . . .
By operating a motor car and using public roads the defendant moves into spheres in
which private individuals also move. In these spheres the parties face one another on a
basis of equality, and there is no indication here of any supremacy and subordination.²⁶³
During the hearings preceding the enactment of the FSIA it was explained
that the classic example qualifying under section 1605(a)(5) would be an acci-
dent caused by a vehicle owned by a foreign embassy and driven by an official or
employee acting within the scope of his duties.²⁶⁴ Moreover, the discretionary
function exception secures the independent exercise of, for example, the consular
activities of foreign states that would qualify as acta jure imperii under the trad-
itional approach to the issue. So what is the difference between the territorial tort
exception and the acta jure imperii–acta jure gestionis approach to territorial torts
advanced in the Holubek case?
The case of Letelier v Chile elucidates this point.²⁶⁵ In 1976 Orlando Letelier—
Chilean ambassador and foreign minister during the Allende regime—and his
aide Ronni Moffitt—a US national—were killed in Washington by a car bomb.
A US investigation revealed that the men responsible for the assassination were
connected to the government in Chile. Relatives of the two men filed a civil action
for damages against the Republic of Chile. Chile denied any involvement in the
death of Letelier and Moffitt, but argued that even if it were involved the court
²⁶² Collision with Foreign Government-Owned Motor Car (Austria) Case 40 ILR 73 (Austria,
S Ct, 1961).
²⁶³ ibid 75 and 77. Cf also Ciniglio v Ambasciata d’Indonesia e Compagnia di Assicurazioni
Intercontinentale (1968) 4 RDIPP 104 (Italy, Pretore di Roma, 1966); 65 ILR 268.
²⁶⁴ Statement of Monroe Leigh, Legal Advisor of the State Department, Jurisdiction of
U.S. Courts in Suits Against Foreign States: Hearings on H.R. 11315 Before the Subcomm. on
Admin. Law and Governmental Relations of the House Comm. On the Judiciary, 94th Cong, 2d
Sess 24, 27.
²⁶⁵ Letelier v Chile 488 F Supp 665 (US, DC for the District of Columbia, 1980).
could not establish jurisdiction under the FSIA since the act does not cover polit-
ical assassinations because of their public, governmental character. The argument
was rejected by the court. There is no indication, it held,
that the tortious acts to which the Act makes reference are to only be those formerly
classified as ‘private’, thereby engrafting onto the statute . . . the requirement that the
character of a given tortious act be judicially analysed to determine whether it was of the
type heretofore denoted as jure gestionis, or should be classified as jure imperii.²⁶⁶
The acts on which the claim was based moreover did not qualify under the discre-
tionary function exception. An act that is discretionary, the court held, is one in
which ‘there is room for policy judgment and decision’.²⁶⁷ The court concluded:
Whatever policy options may exist for a foreign country, it has no ‘discretion’ to perpet-
rate conduct designed to result in the assassination of an individual or individuals, action
that is clearly contrary to the precepts of humanity as recognized in both national and
international law.²⁶⁸
Also the Canadian Supreme Court has rejected the argument that the territorial
tort exception of the 1982 Canadian State Immunity Act only applies to acta jure
gestionis. It emphasized that the exception does not depend on the nature of the
act on which the claim is based. The court pointed out that if this were different,
victims of the worst breaches of basic rights would be deprived of any possibility
of redress in national courts.²⁶⁹
From the traditional perspective the conclusion of the court in the Letelier case
could be paraphrased as a refusal to allow the acta jure imperii–acta jure gestionis
distinction in through the back door—after all, under the Holubek criteria the
assassination of Letelier by Chilean secret agents probably qualified as an acta
jure imperii of the Chilean government.²⁷⁰ However, keeping in mind the natural
limits of a state’s imperium it is more appropriate to say that the territorial tort
exception as included in almost all national codifications of the state immun-
ity rule, as well as in the European Convention on State Immunity and the UN
Convention on the Jurisdictional Immunities of States and their Property is the
reflection of the jure imperii–jure gestionis distinction.²⁷¹ A state may only
²⁶⁶ ibid 671.

²⁶⁷ ibid 673. Under reference to jurisprudence on the Federal Tort Claims Act: Dalehite v United
States 346 US 15 (US, S Ct, 1953) 36.
²⁶⁸ ibid. Cf also Helen Liu v The Republic of China 892 F 2d 1419 (US, Ct of Apps (9th Cir),
1989).
²⁶⁹ Schreiber v Canada (Attorney General) (Canada, 2002) §§ 30–37, § 37. Cf the difference with
the pre-State Immunity Act approach in Carrato v United States of America 90 ILR 229 (Canada,
Ontario High Court, 1982).
²⁷⁰ Cf n 226 above for the widespread view that the acta jure imperii–acta jure gestionis distinc-
tion is not relevant to the territorial tort exception.
²⁷¹ See R Quadri, La giurisdizione sugli stati stranieri (1941) 127 for an early consideration of
this issue and a plea for the Letelier—and hence the territorial tort exception—approach. Cf how-
ever Carrato v United States of America (Canada, 1982) where it was decided that the seizure of
assets in Canada without authorization of Canadian authorities by a receiver appointed by a US
State Immunity 71
legitimately exercise its sovereign authority on the territory of another state with
that state’s consent. The performance of consular acts like the issuance of pass-
ports and visa is an obvious example of such extra-territorial exercise of imperium
with consent. The state that has consented to this exercise of imperium cannot
exercise jurisdiction over that exercise as long as it stays within the bounds of the
agreement.²⁷² Since the exercise of imperium on foreign territory is dependant
on permission to exercise a certain well-defined function, it is possible to con-
struct a foreign state’s authority by reference to legal standards. The bounds of
the national law of the territorial state do not determine the authority of foreign
states. For example, the issuance of a passport in violation of the law of the ter-
ritorial state is still an exercise of sovereign authority. However, if the activity of
a foreign state in itself—hence independent of the way in which the activity was
exercised—violates the law of the territorial state, there is at least a strong pre-
sumption that the territorial state cannot have consented to that.
Two final observations are called for. In the first place it is noted that the 1994
Alicog v Kingdom of Saudi Arabia case establishes an important caveat on the
use of the territorial tort exception in US courts. It may be clear that compared
to claims concerning commercial activity, tort suits carry a considerable risk of
frivolous claims. The case concerned two former servants of Prince Saad of the
Kingdom of Saudi Arabia who sued, among others, the Kingdom of Saudi Arabia
for private imprisonment and acts of serious physical and mental abuse allegedly
inflicted upon them by Saudi state officials when they accompanied the Prince
on a visit to the United States in 1991.²⁷³ The court acknowledged that ‘[t]he law
has imposed limits on the exception for discretionary functions.’²⁷⁴ It moreover
considered that ‘[k]idnapping, private imprisonment, and assassination are all
beyond the scope of legitimate diplomatic operations and are not protected by the
discretionary function exception, and courts have jurisdiction over a government
committing those acts.’²⁷⁵ Although the court ruled that ‘[t]he kingdom would
court to collect taxes due to be paid to US authorities was an illegal, but nevertheless public act of
the US government.
²⁷² See Alexeeff v Rappresentanza Commerciale dell’Unione delle Republiche Sovietiche Socialiste
(URSS) (1933) Temi Emiliana 266 (Italy, 1933) 271–2. Cf also Yamaguchi v United States (Japan,
2002) where the court decided that taking off and landing of US military aircraft at the Yokota Air
Base in Tokyo, Japan ‘is a public activity par excellence of the US armed forces and clearly an act
jure imperii’, discussed by M Tomonori in a case note in (2003) 97 AJIL 406–11. Cf also Presidenza
Consiglio dei ministri e Stati Uniti d’America v Federazione italiana lavoratori dei trasporto della pro-
vincia di Trento and others (2001) 37 RDIPP 1019 (Italy, Corte di Cassazione, 2000); Airport Linz
v United States (Austria, 2004).
Th is must be distinguished from the discussion in how far states can rely on the law of diplo-
matic immunity. Cf J Salmon and S Sucharitkul (1987); JC Barker, ‘State Immunity, Diplomatic
Immunity and Act of State: A Triple Protection against Legal Action?’ (1998) 47 ICLQ 950.
²⁷³ Alicog v Kingdom of Saudi Arabia 860 F Supp 379 (US, DC for the Southern District of
Texas, 1994).
²⁷⁴ ibid 383.
²⁷⁵ ibid.
not be immune if the consular officers committed serious physical abuse’²⁷⁶ it
refused to hear the case because plaintiffs had failed to show sufficient evidence
of the allegations at hand. The court considered that ‘testimony is vague at best,
with no specification of who did precisely what to whom, where, and on what
occasion. Six months of enslavement and torture . . . must have some detail, some
objective residue somewhere . . . If the damage were serious enough to warrant
judicial scrutiny, there must have been hospital records, pictures, scars, or testi-
mony from others about the extent of harm . . . If . . . the plaintiffs have no evidence
of abuse, only allegations, this court cannot provide redress.’²⁷⁷ Jurisdiction can
hence not be created by mere allegations that qualify under one of the exceptions
to the FSIA but requires at least some substantiation: as a preliminary hurdle
plaintiffs will have to present a credible, well-documented claim.
The second observation is more fundamental and prepares us for the next sec-
tion. As was stated earlier, apart from a division of competences between national
courts, state immunity reflects a division of competences between national courts
and international dispute settlement procedures. This second limit on the essen-
tial competence of national courts is bound to clash with an unabridged appli-
cation of the territorial tort exception. The most obvious example would be the
reliance on the exception as regards activity of a foreign state in the course of an
armed conflict with the forum state. We will see below that the concept of acta
jure imperii is also used for the acts that a state performs as a subject of inter-
national law. Fox considered in this regard that ‘[w]here the forum State’s territory
is occupied by force by another State the principles of independence and equality
are set aside and the law of armed conflict rather than the law of peace applies.
Matters falling within the law of armed conflict are classified as acts in the exer-
cise of sovereign authority and as such, if compensation is sought, reparation for
war damage is made by direct negotiation between States on the international
plane. Therefore a claim made in peacetime for personal injuries or tangible dam-
age occurring during a previous armed conflict or period of occupation of the
forum State territory by the defendant State relates to matters jure imperii and
hence is immune.’²⁷⁸ War is the paradigm example. But what about a terrorist
attack like that carried out by French secret agents against the Rainbow Warrior
ship within New Zealand territory? The fact that international law standards are
violated is clearly not enough. Surely the inclusion of such standards in inter-
national law cannot deprive an individual of judicial recourse it previously had.
The mere applicability of international legal standards to the activity at hand does
not mean that a state has acted as a subject of international law for state immun-
ity purposes. A more delicate question is whether national courts are competent
²⁷⁶ ibid 384.

²⁷⁷ ibid.
²⁷⁸ H Fox (2002) 316.
State Immunity 73
when the international law aspects of a particular act may be said to dominate the
private law aspects.
3.2.2 Rights and Obligations under International Law

A second category of state immunity decisions gives expression to the verti-
cal division of competences between national courts and international dispute
settlement procedures. In Campione v Petit-Nitrogenmuvek NV and Hungarian
Republic the Italian Corte di Cassazione considered that when states act as
subjects of international law—a competence, in contrast to those discussed in
section 3.2.1, not territorially limited²⁷⁹—the ensuing relations remain com-
pletely outside the Italian legal order.²⁸⁰ Anzilotti stated in this regard that the
fact that states are not subject to the jurisdiction of other states as regards their
relations under international law does not need evidence: it has always been
recognized by all as an evident and inherent truth, as an irrecusable logical
consequence of the concept of international law.²⁸¹
This is not the place for a discussion of the principle of equality of states and its
role in the international legal order as such.²⁸² For our purposes it suffices to state
that it is uncontroversial that ‘the principle of juridical equality is formally estab-
lished as one of the basic principles of international law’.²⁸³ As an organizational
principle of the international legal order it has consequences for the enforcement
of the rights and obligations under international law. The equality of states would
be incompatible with one state exercising its jurisdiction over acts of another state
that are governed by rules of international law. It is here that the operation of the
principle of equality of states is properly expressed through the maxim par in
parem non habet imperium.
It must be noted at the outset that this aspect of the rule of state immunity bears
some resemblance to the international dispute settlement rule. States cannot be
subjected to international adjudication without their consent.²⁸⁴ Some scholars
²⁷⁹ Cf eg In re Savini and Others 4 AD 166, case no 106 (Italy, CA of Rome, 1927) 167: ‘in
certain historical circumstances and in the course of events of an international character, espe-
cially if these result from war, a State may exist outside its natural boundaries and still preserve the
character of a person in public international law in its relations with other States and particularly in
its relations with the State whose hospitality it enjoys’.
²⁸⁰ See n 254 above.
²⁸¹ D Anzilotti (1910) 477: ‘è cosa che non ha bisogno di essere dimostrata e che da tutti e
sempre è stata riconosciuta come una verità evidente di per se stessa, come una conseguenza logica
irrecusabile dello stesso concetto del diritto internazionale.’
²⁸² Cf PH Kooijmans, The Doctrine of the Legal Equality of States: An Inquiry into the Foundations
of International Law (1964).
²⁸³ R Jennings and A Watts (eds) (1992) i 340, § 107.
²⁸⁴ Cf Case of the Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom
and United States), ICJ Reports 1954 10, 32 where the ICJ referred to the ‘well-established prin-
ciple of international law embodied in the Court’s Statute, namely, that the Court can only exercise
jurisdiction over a State with its consent’.
have drawn a general parallel between the rule and the law of state immunity.
Jennings, for example, noted
the similarity of the principle of the jurisdictional immunity of States before domes-
tic courts of other States, and the consensual principle of jurisdiction of international
courts . . . This relationship is not always evident from the text books, nor indeed remarked
by commentators. But jurisdictional immunity in the absence of waiver, and jurisdiction
created by consent, are the obverse and reverse of the same coin. In either case it is State
sovereignty that is the underlying rationale and historical cause.²⁸⁵
Crawford considered the international dispute settlement rule ‘the nearest dir-
ect analogue in international law to the rule of State immunity’.²⁸⁶ In his influ-
ential article International Law and Foreign Sovereigns: Distinguishing Immune
Transactions Crawford identified the rule as one of three rules underlying the
notion of restrictive immunity. He put the following question to his readers:
With respect to transactions not within the jurisdiction of the forum State under inter-
national law, how is the forum State in a better position than an international judicial
forum in asserting jurisdiction against a foreign State defendant?²⁸⁷
Crawford argued that the rule ‘implies that certain disputes involving States are
to be settled on the international plane, not by subjecting the defendant State to
the compulsory jurisdiction of some municipal court’.²⁸⁸
It is proposed to formulate the relation between the two rules somewhat dif-
ferently. National courts are—in principle—not the appropriate forum to decide
disputes regarding the rights and obligations of foreign states under international
law: par in parem non habet imperium. Rather, states must rely on international
dispute settlement mechanisms. The jurisdiction of international courts and
tribunals over such disputes is of course a priori appropriate. The international
dispute settlement rule only reflects the absence of supreme authority in inter-
national law: consent is necessary to allow the exercise of this a priori appropriate
jurisdiction. The rule undoubtedly strengthens the vertical aspect of the law of
state immunity but is not directly, or even indirectly, related to it.
The operation of the vertical aspect of the law of state immunity is most obvi-
ous when a claim requires a court to decide a dispute that is formulated in terms
of rights and obligations under international law.²⁸⁹ More common is however
the claim of an individual formulated in terms of rights and obligations under
²⁸⁵ R Jennings (1988) 3–4. Cf also the discussion of the Third Report on the Jurisdictional
Immunities of States and their Properties (Special Rapporteur S Sucharitkul) in the ILC, YBILC
1981 i 55, 57–8, § 15.
²⁸⁶ J Crawford (1983), 80.
²⁸⁷ ibid.
²⁸⁸ Cf also J Crawford, ‘Execution of Judgments and Foreign Sovereign Immunity’ (1981)
75 AJIL 820, 856; Australian Law Reform Commission, Foreign State Immunity, Report no 24
(1984), § 40.
²⁸⁹ Cf Arab Republic of Syria v Arab Republic of Egypt 91 ILR 289 (Brazil, S Ct, 1982).
State Immunity 75
national law as regards the exercise of a competence of a state regulated under

international law. An example is found in the case of the Kingdom of Greece v
Gamet.²⁹⁰ Following the 1947 Treaty of Peace with Italy, the Greek government
had issued a decree that all shares in Greek companies owned by Italian citizens
or companies were to be deposited so as to be at the disposal of the Greek govern-
ment and were to remain blocked for the time being. The French plaintiff in this
case claimed before the Italian courts that some of the shares thus deposited were
in fact hers. It was held that since the acts of the Greek state that were the subject
of plaintiff ’s complaint had been in execution of the Italian Peace Treaty, Greece
was exempt from jurisdiction. The court crucially considered that if a state oper-
ates on the territory of another state it is exempted from jurisdiction for ‘acts of
a public character performed in the exercise of the sovereign power of the State
acting outside its own territory as a subject of international law. In such cases, the
legal relations are outside the ambit of the municipal law which applies in the ter-
ritory in which the foreign State operates.’²⁹¹
Without doubt, claims of individuals alleging responsibility in tort of a foreign
state with regard to acts committed in the course of armed conflict either on the
territory of the forum state or on the territory of a third state, are the most relevant
instances of application of the principle for the purpose of this study. In the 1968
case Ministry of Foreign Aff airs v Federici and Japanese State²⁹² it was concluded
that the Italian courts lacked competence to decide a claim of an Italian national
for compensation for the acts of the Japanese occupation forces in China during
the Second World War. After the armistice between Italy and the Allied Powers
in September 1943, Mr Federici, an Italian national resident in China, refused
to swear allegiance to the Italian ‘Repubblica Sociale’ successor to the Fascist
government in Northern Italy and allied to Germany and Japan. Japanese mili-
tary authorities interned him in a concentration camp and seized his valuables.
After the surrender of Japan in January 1946 the ‘Japanese Liaison Office with
the Commission for the Settlement of Allied Claims’ in Shanghai provided him
with a declaration recognizing his right to claim US$ 638,050 from the Japanese
state. When payment of the sum did not come off, Federici eventually brought
a claim against Japan before an Italian court. In 1963 the Tribunal of Rome
held the Japanese State liable to pay the debt since it qualified the recognition of
debt as an act of a private law nature. The 1968 case concerned the decision on
the third party opposition proceedings against that judgement brought by the
Italian Ministry of Foreign Affairs. The court first criticized the approach taken
in the 1963 judgement holding that ‘the public or private nature of a legal obliga-
tion . . . is to be deduced from its legal basis and from any other evidence proving
either that the parties have concluded a transaction and that civil responsibility
²⁹⁰ Kingdom of Greece v Gamet (Italy, 1959).

²⁹¹ ibid. Cf moreover X v Federal Republic of Germany 65 ILR 10 (Austria, S Ct, 1963).
²⁹² Ministry of Foreign Aff airs v Federici and Japanese State 65 ILR 275 (Italy, Tribunal of Rome,
1968).
is involved, or alternatively that the legal relationship is based on acts which by
their very nature lie outside the sphere of such responsibility and are governed
by other legal rules’.²⁹³ The declaration, the court held, did not change the legal
relationship resulting from requisitions in Shanghai in 1943 and the recognition
of debt should not have been separated from the underlying legal act which was
clearly part of a public law relationship. The court held furthermore that
relationships arising from acts of sovereignty performed by States (especially those relat-
ing to activities of troops during military operation) can exist only and directly between
States as subjects of international law even when those relationships concern damage
caused to individuals and not to the State.²⁹⁴
The court considered that ‘[t]he legal relationship upon which the contested
judgement was pronounced lies outside the competence of Italian courts.’²⁹⁵
‘Such relationships’ the court explained, ‘are regulated under international law
and through diplomatic channels . . . In cases such as these the protection of the
individual’s interests is entrusted to the State, which is responsible for their pro-
tection with regard to the actions of a foreign State, in accordance with inter-
national law.’²⁹⁶ Consequently ‘[t]his is a case of inter-State relations, subject to
international law and concerning the exclusive rights of the States themselves
rather than those of the wronged individual.’²⁹⁷
A Dutch case regarding German activity in Belgium during the First World
War gave rise to similar considerations.²⁹⁸ A vessel with a cargo of coal belonging
to Mr De Booy, a Dutch merchant, was destroyed by German military author-
ities on Belgian soil. In default proceedings before a Dutch District Court in
1916, Germany was ordered to pay damages.²⁹⁹ The ensuing developments are
quite complex. When the Dutch government was informed of the judgment it
took proceedings of a summary nature before the President of the District Court
to have the execution of the judgment stayed pending decision on a formal claim
to have it definitively annulled. The government was of the opinion that the
judgement was contrary to international law since it regarded acts of a foreign
state in the exercise of its sovereign belligerent powers.³⁰⁰ The president found
²⁹³ ibid 276–7.

²⁹⁴ ibid 278.
²⁹⁵ ibid.
²⁹⁶ ibid.
²⁹⁷ ibid 278–9.
²⁹⁸ De Booij v het Duitsche Rijk, the Government of Holland Intervening 1 AD 124, case no 84
(The Netherlands, DC of Amsterdam, 1920). See for a detailed discussion of the case and related
developments EW Allen (1933) 110; CCA Voskuil, ‘State Immunity and the Law of Civil Procedure
and Execution in the Netherlands’ in TD Gill and WP Heere (eds), Reflections on Principles and
Practice of International Law (2000) 223, 226–9.
²⁹⁹ De Booij v het Duitsche Rijk NJ 1917 13 (The Netherlands, Rechtbank Rotterdam, 1916).
³⁰⁰ Cf also L Van Praag, ‘Vonnis en Beslag tegen een Vreemden Staat’ (1917) Weekblad van het
Recht 10036, 3:1–4:1.
State Immunity 77
for the government and ordered a stay of execution.³⁰¹ The government further
instigated a claim for annulment through third-party opposition against the ori-
ginal judgment. We will not enter into the particularities of the case here. It is
only noted that the Dutch Supreme Court did eventually consider that the 1916
decision of the District Court violated international law because it regarded a
claim on account of acts committed by the German state in its capacity under
public law.³⁰²
Foreign states acting on the territory of the forum state thus enjoy immunity
when they have acted as a subject of international law. As was explained in the
previous section, the principle may thwart the operation of the territorial tort
exception. The Italian case of The Ditta Pomante v Federal Republic of Germany
illustrates the tension between the two rules.³⁰³ After the Italian declaration
of war on Germany on 13 October 1943 German armed forces removed tim-
ber from the sawmill of the firm of Pomante in Roseto degli Abruzzi. Later, the
German military command entered into contract with the plaintiff for the sup-
ply of timber to the German armed forces. It can not be said however that the
plaintiff entered into the contract out of free will. He was compelled to return
to the sawmill under very dangerous working circumstances and at the risk of
the lives of 150 workmen to produce the timber while exposed to heavy air raids.
The German authorities never paid for the materials supplied or the materials
removed and claim was made for reparation. The court considered that Germany
had demanded supply as an Occupying Power in the exercise of its sovereign
powers—a situation to which article 52 of the 1907 Hague Convention is applic-
able. The court rejected the argument of plaintiff that the contract was entered
into on the basis of equality. The court considered that ‘the powers with which
the foreign State acted, not the form which the relationship may have taken’ are
decisive ‘for a State’s acts are not characterized according to the methods which
were used’.³⁰⁴
In sum, activity that cannot be qualified as the exercise of sovereign
authority in terms of exclusive competence may deserve that qualification when
placed within the context of international law.³⁰⁵ Exactly when an act loses the
³⁰¹ De Staat der Nederlanden v (1) de Booij (2) het Duitsche Rijk NJ 1917 133 (The Netherlands,
Rechtbank Rotterdam, 1917).
³⁰² De Booij v (1) den Staat der Nederlanden (2) het Duitsche Rijk 1 AD 124 (The Netherlands,
Hoge Raad, 1924) 128; NJ 1924 535. Cf also NV Limburgsch Landbouw Syndicaat (Wijk-
Maastricht) v het Duitsche Rijk NJ 1917 12 (Rechtbank Maastricht, 1916).
³⁰³ The Ditta Pomante v Federal Republic of Germany 40 ILR 64 (Italy, Civil Court of l’Aquila,
1960).
³⁰⁴ ibid 68.
³⁰⁵ Cf in particular Russian Trade Delegation v Société Française Industrielle et Commerciale
des Pétroles (Groupe Malopolska) 9 AD 245, case no 83 (France, Civil Tribunal of the Seine, 1940)
and Société Française Industrielle et Commerciale des Pétroles v Russian Trade Delegation 11 AD 145
case no 77 (France, CA of Paris, 1941). Cf also Urrutia and Anollobieta v Martiarena 8 AD 237
case no 94 (Belgium, Court of Brussels, 1937); Oder-Neisse Property Expropriation Case 65 ILR 127
(Germany, Superior Provincial Court Munich, 1975).
character of territorial tort and becomes a matter for conflict resolution on the
international level may not be immediately obvious. As said, the applicability
of the law of armed conflict is the paradigm example. Notably, the UK State
Immunity Act provides in section 16.2 that the exceptions to state immunity do
not apply ‘to proceedings relating to anything done by or in relation to the armed
forces of a State while present in the United Kingdom’. In a similar vein, article
31 of the European Convention states that ‘[n]othing in this Convention shall
affect any immunities or privileges enjoyed by a Contracting State in respect of
anything done or omitted to be done by, or in relation to, its armed forces when
on the territory of another Contracting State.’ The Explanatory Report on the
Convention clarifies that ‘[t]he Convention is not intended to govern situations
which may arise in the event of armed conflict’.³⁰⁶
During repeated discussions on the territorial tort exception several members
of the ILC suggested that the exception should be seen to be limited to insurable
risks like traffic accidents or negligent, unintentional injury or damage to prop-
erty. This would exclude in particular criminal and political offences from the
scope of article 12. It was argued that the peaceful settlement of such disputes by
negotiations through diplomatic channels is preferable.³⁰⁷ The interpretation of
article 12 as applying to insurable risks only would reduce the scope of the pro-
vision to the reach of the classic Holubek formulation. It would entail the grant
of sovereign immunity whenever a foreign state violates outside the boundaries
of its own territory on purpose and with vile intent rules that can normally be
applied by the national court.³⁰⁸ In his eighth and final report Sucharitkul left
the issue unresolved. On the one hand he considered it questionable whether
national courts were the best forum to solve disputes concerning the liability of
foreign states for acts that qualify as acta jure imperii—argued under the Holubek
approach to the term. On the other hand he considered the local remedies rule an
argument in favour of the exercise of jurisdiction over such disputes by national
courts in order to avoid any implication of denial of justice. The indetermin-
ate conclusion that ‘[a] balanced approach is vital to a meaningful solution to
this problem’ leaves us guessing as to the criterion for distinction preferred by
the ILC.³⁰⁹ In the Commentary on the 1991 Draft Articles we do read that
article 12 does not apply to situations involving armed conflict, but the UN
Convention does not contain a specific article to that effect.³¹⁰
³⁰⁶ Explanatory Report on the European Convention on state immunity and the additional protocol
(2nd edn, 1985) 39.
³⁰⁷ Cf eg S Sucharitkul (Special Rapporteur ILC), Sixth Report on the Jurisdictional Immunity
of States and their Property, YBILC 1984 ii (part one) 5, 11, § 17; Report of the Commission on the
Work of its Th irty-fifth Session, YBILC 1983 ii (part two), 19–20, § 86–91.
³⁰⁸ The Letelier case is then an example of what should not qualify under art 12. Cf for this
approach (in a case concerning activity on the high seas) The National Navigation Cy of Egypt v
Tavoularidis (1930) 57 JDI 203 (Egypt, Tribunal mixte d’Alexandrie, 1927).
³⁰⁹ S Sucharitkul (Special Rapporteur ILC), Eighth Report on the Jurisdictional Immunities of
States and their Property, YBILC 1986, ii (part one) 21, 27, § 17.
³¹⁰ International Law Commission, ILC Draft Articles on Jurisdictional Immunity of States
and their Property (1991), YBILC 1991 ii (part two) 13, 46. Article 26 of the UN Convention
State Immunity 79
It is suggested that the vertical division of competences must be distinguished

from the question whether certain disputes are better solved on the international
level as a policy option. The relevant question should be whether the powers under
scrutiny are governed by international law either a priori, or because states agree after-
wards to settle the dispute on the international level.³¹¹ Notably, the applicability of
rules of international law to the acts of the foreign state, or the impact of the dispute
on interstate relations does as such not affect the character of the dispute for the pur-
pose of the vertical division of competences. The a priori incompetence of national
courts is at issue when a foreign state is called to account for acts committed as a subject
of international law. The application of this criterion is of course far from straightfor-
ward. What if a state claims to have acted under the rules of self-defence, reprisal, or
humanitarian intervention? Difficult cases are not further explored here.³¹² For the
purposes of this study it suffices to note the conceptual difference.
The Letelier case is a conspicuous example of a dispute that was not a priori
outside the competence of the national courts. While the assassination of Letelier
violated norms of international law, the act retained its significance under
national law as well. The competence over national law claims in regard of this
type of dispute can only be affected by settlement on the international level. The
a priori competence of the national courts may operate as a sword of Damocles
and be an impetus to settle the damages on the interstate level.³¹³ The intricate
question whether states may move to settle claims of their nationals even when
these national would prefer to take their case to court falls outside the scope of
this study; the conclusion is limited to the assumption that interstate settlement
is an option. Claims that ask courts to reconsider the terms of such settlement fall
outside the essential competence of national courts.³¹⁴
3.2.3 Acta Jure Imperii: A Coherent Concept After All

The principle of independence of states requires states not to exercise adjudica-
tory jurisdiction over the exclusive competences of other states. The principle of
does provide that ‘[n]othing in the present Convention shall affect the rights and obligations of
States Parties under existing international agreements which relate to matters dealt with in the pre-
sent Convention as between parties to those agreements’, securing thus the prevalence of Status of
Forces Agreements over general state immunity rules.
³¹¹ A distinct question—and one outside the scope of this study—is whether there are limits on
the power of states to take issues out of national law into the international arena, and whether there
are limits on the power of states to dispose of individual claims in such process.
³¹² Cf for support for the exercise of jurisdiction in such cases J Crawford (1983) 111; HD
Collums, ‘The Letelier Case: Foreign Sovereign Liability for Acts of Political Assassination’ (1981)
21 VJIL 251, 267.
³¹³ Cf in this respect the Report of the Commission on the work of its Thirty-fifth Session,
YBILC 1983 ii (part two), 19–20, § 91, where it was stated that the territorial tort exception
‘intended to expedite diplomatic negotiations.’
³¹⁴ In this respect the definition of the territorial tort exception in the ILC Draft Articles on
Jurisdictional Immunities of States and their Property (YBILC 1991 ii 2 (part two) 13, 44) and
the 2004 UN Convention on Jurisdictional Immunities of States and their Property is significant.
Art 12 provides that states are not immune in respect of territorial torts ‘[u]nless otherwise agreed
between the States concerned’.
equality of states moreover requires that states do not exercise adjudicatory jur-
isdiction over the rights and obligations of other states in disputes exclusively
governed by international law. The rule of state immunity can hence be defined as
the prohibition to exercise jurisdiction over a foreign state’s exercise of authority
under international law.
It is important to note that competence is claimed not whenever a court quali-
fies the activity of a foreign state in legal terms, but only when that characteriza-
tion implies that the forum state has jurisdiction over the exercise of the activity.
In that case, the proceedings in fact turn on the rights and obligations of the for-
eign state. The rule of state immunity therefore only applies when a foreign state
is either nominally, or factually a defendant in the case. Hence, state immunity
is still an immunity ratione personae and should not be confused with the act of
state or non-justiciability doctrines that find their basis in certain national legal
systems. As a Dutch court put it in a case against a private entrepreneur—accused
of conspiracy in the crime of genocide and violation of the laws and practices of
war because of, inter alia, the supply of nerve gas and other materials for the pro-
duction of chemical weapons to the state of Iraq:
Although it is inevitable for the court in this case to give a judgment on the persons that
have been included in the indictment as perpetrators concerning the principle offenses,
this is not considered to be an exercise of jurisdiction, because this cannot lead to a con-
viction or the implementation of coercive measures against these persons.³¹⁵
Or, as Von Bar asserted already in 1889: ‘the Courts are free to consider and
pronounce an opinion upon the exercises of sovereign power by a foreign
Government, if the consideration of those acts of a foreign Government only
constitutes a preliminary to the decision of a question of private rights which in
itself is subject to the competency of the Court of law. In fact in such a case the
Court is merely dealing with premises on which its judgment in the private suit is
to proceed.’³¹⁶ Oppenheim’s International Law formulates it as follows: ‘the courts
of one state do not, as a rule, question the validity or legality of the official acts of
another sovereign state or the official or officially avowed acts of its agents, at any
rate insofar as those acts involve the exercise of the state’s public authority, purport to
take eff ect within the sphere of the latter’s own jurisdiction and are not in themselves
contrary to international law.’³¹⁷ Often, the rule is even said to be circumscribed
³¹⁵ Van Anraat (The Netherlands, 2005) English transl available at <http://zoeken.rechtspraak.
nl/Default.aspx>. The reasoning of the District Court of Amsterdam and the Court of Appeal
of Amsterdam in Republic of the South Moluccas v Royal Packet Shipping Company 17 ILR 143, case
no 39 (1950, 1951), where the act of state doctrine was attributed international law status, was
hence not followed.
³¹⁶ L Von Bar (1892) 1121. Cf also E Zitelman, Internationales Privatrecht (1897) i 378–80;
FA Mann, ‘The Sacrosanctity of the Foreign Act of State’ (1943) 59 LQR 42, 155, 171.
³¹⁷ R Jennings and A Watts (eds) (1992) i 365, § 112 (emphasis added). Cf also PM Dupuy,
Droit international public (5th edn, 2000) 422ff ; I Brownlie, Principles of Public International
Law (6th edn, 2003) 319; Article 3 of the 1993 Resolution of the Institut de Droit International
State Immunity 81
by the potentially broader concept of the ordre public of the forum state,³¹⁸ or,
as the ICTY held in Prosecutor v Furundžija,³¹⁹ by jus cogens norms—the ordre
public of the international legal order.
A foreign state can of course be the factual or proper defendant when it is not
the defendant eo nominee in a case. The UK case of Buck v Attorney General is
a case in point.³²⁰ After the coming to independence of Sierra Leone in 1961 a
group of residents of the former colony sought to challenge the formal validity of
a British Order-in-Council that was issued as part of the creation of the constitu-
tion of Sierra Leone before the UK courts. Diplock LJ emphatically distinguished
the case from cases where the validity of the foreign law came into question inci-
dentally as a necessary matter for decision in the course of adjudicating private
rights and obligations.³²¹ The Court of Appeal found that the very subject mat-
ter of the claim put before it was the invalidity of a foreign constitution. The
validity of the foreign law was hence the central issue of dispute and the court
consequently refused to entertain the action.³²² It was in the course of this deci-
sion that the court considered that ‘the application of the doctrine of sovereign
immunity does not depend upon the persons between whom the issue is joined,
but upon the subject-matter of the issue’.³²³ It is the object of the claim—namely
the invalidation rather than the non-recognition of a foreign act of state—that
distinguishes Buck from the typical act of state doctrine case.³²⁴
The more obvious example is the case in which a foreign state official is sued
for acts committed in an official capacity.³²⁵ The 1848 decision of the UK House
of Lords in Duke of Brunswick v King of Hanover is an early exponent of this cat-
egory of cases. When the King of Hanover issued a decree to depose the Duke of
Brunswick and replace him with the Duke of Cambridge, removing him from
his land and title, the deposed Duke filed a claim before the English courts. The
Lords famously considered that
a foreign sovereign . . . cannot be made responsible for an act done in his sovereign char-
acter in his own country . . . the courts of this country cannot sit in judgment upon an act
of a sovereign, effected by virtue of his sovereign authority abroad, an act not done as a
on The Activities of National Judges and the International Relations of their State (Rapporteur B
Conforti), (1993) 65–I AIDI 444, 446.
³¹⁸ Cf eg P Weil, ‘Le contrôle par les tribunaux nationaux de la licéité internationale des actes
des États étrangers’ (1977) 23 AFDI 9 and French doctrine in general.
³¹⁹ Prosecutor v Furundžija, IT–95–17/1, Trial Chamber, Judgment (ICTY, 1998) § 155.
³²⁰ Buck v A-G [1965] Ch 745 (UK, CA, 1964).
³²¹ ibid 770.
³²² ibid 768.
³²³ ibid 770.
³²⁴ Cf in this respect also National Institute of Agrarian Reform v Terry Kane (1963–II) 2 ILM
658 (US, District CA of Florida, Third District, 1963); Société Algérienne de Commerce Alco et
Autres v Sempac et Autres (1978) 105 JDI 904 (France, Cour de Cassation, 1978); 65 ILR 73.
³²⁵ A comprehensive discussion of the position of foreign state officials will follow in ch 3
below.
British subject, but supposed to be done in the exercise of his authority vested in him as a
sovereign.³²⁶
Also the 1897 decision of the US Supreme Court in Underhill v Hernandez should
be cited in this respect.³²⁷ The plaintiff in this case was an American national who
was in charge of the waterworks of the Venezuelan city of Bolivar in 1892. He
alleged that he had been prevented from leaving the city and forced to operate the
waterworks for the benefit of the revolutionary forces and brought suit for dam-
ages against the head of the army of the revolutionary government of Venezuela.
The court dismissed the case with the famous consideration that
Every sovereign state is bound to respect the independence of every other sovereign state,
and the courts of one country will not sit in judgment on the acts of the government of
another done within its own territory. Redress of grievances by reason of such acts must
be obtained through the means open to be availed of by sovereign powers as between
themselves.³²⁸
Since the ‘acts of the defendant were the acts of the Government of Venezuela’
they were ‘not properly subject to adjudication in the courts of another
government’.³²⁹
Rather than as support for the immunity of foreign acts of state Underhill and
Duke of Brunswick should be understood from the narrow perspective of claims
against individuals that performed an act on behalf of a foreign state and in the
exercise of the state’s sovereign authority. Though commonly regarded as the
earliest articulation of the act of state doctrine, the Underhill decision can in fact
be seen as an early precedent for the rule of functional immunity of state officials
and the consequent applicability of the rule of state immunity.³³⁰ It is now firmly
established that the rule of state immunity may apply to cases in which a foreign
state is the factual or proper defendant before the court. In Esnault-Pelterie v The
AV Roe Cy Ltd a French court formulated it thus:
la règle de l’indépendance réciproque des Etats doit s’appliquer non seulement aux
demandes dirigées contre le Gouvernement lui-même, mais encore à celles introduites
contre les agents, mandataires, ou cocontractants de ce Gouvernement, à raison des actes
qu’ils accomplissent en cette qualité, ou en vertu des ordres dudit Etat.³³¹
³²⁶ Duke of Brunswick v King of Hanover (UK, 1848) (per Lord Cottenham).
³²⁷ Underhill v Hernandez 168 US 250 (US, S Ct, 1897).
³²⁸ ibid 252. Cf also Hatch v Baez 7 Hun 596 (US, New York S Ct, 1876) 599: ‘the courts of
one country are bound to abstain from sitting in judgment on the acts of another government done
within its own territory’.
³²⁹ ibid 254.
³³⁰ Cf in fact Banco Nacional de Cuba v Sabbatino 376 US 398 (US, S Ct, 1964) 430.
³³¹ Esnault-Pelterie v The AV Roe Cy Ltd (1925) 52 JDI 702 (France, Tribunal Civil de la Seine,
1925); A-C Kiss, Répertoire de la pratique française en matière de droit international public (1965)
iii 236. A variant of this first type of case is the suit of private individuals in respect of property
they hold as a mandatory or agent of a foreign state. Cf Twycross v Dreyfuss 5 Ch D 605 (UK, CA,
1877); De Keller v Maison de la Pensée Française (1955) 82 JDI 118 (France, Tribunal Civil de la
Seine, 1954).
State Immunity 83
Cases like Chuidian v Philippine National Bank,³³² Jaff e v Miller,³³³ and Propend
Finance Pty Ltd v Sing³³⁴—to name a few—prove that the principle is now
entrenched in the law of state immunity.
If it is the act that is seen to be immune rather than the state, the law of state
immunity acquires definite traits of the act of state and non-justiciability doc-
trines. In this regard it may be noted that in Pinochet no 3 Lord Millett considered
that ‘[g]iven its scope and rationale [the rule of state immunity ratione materiae]
is closely similar to and may be indistinguishable from aspects of the Anglo-
American ‘Act of State doctrine.’³³⁵ In the subsequent decision of the House of
Lords in Holland v Lampen-Wolff e Millett again stressed that state immunity ‘is
a subject-matter immunity. It operates to prevent the official and governmental
acts of one state from being called into question in proceedings before the courts
of another.’³³⁶ State immunity is a subject matter immunity indeed. However, the
subject matter of the dispute—or the nature of the claim—hinges on the status
of the defendant. The mise en cause of a foreign state—nominally or factually—
does control the application of the rule.
This study repudiates the widespread conviction that the reliance on the notion
of acta jure imperii in the law of state immunity ‘does not rest on any sound logical
basis’.³³⁷ This does not, however, mean that the notion provides in and of itself
sufficient guidance to national courts applying the law.³³⁸ In particular, while the
core of the concept of ‘exclusive state competences’ is apparent, states do clearly
not agree on its exact contours. At first blush, the idea of a distinction between
the rule and its application conflicts with accepted theories of customary inter-
national law formation. A further inquiry into the nature of the obligations in the
field of the law state immunity hence is called for.
3.3 The Nature of the Law of State Immunity: A Qualitative

Difference Between the Absolute and the Restrictive Approach
3.3.1 The Essential Competence of National Courts
Immunity presupposes jurisdiction. The concept operates to shield certain
persons, objects, and institutions from the normal functioning of the local
jurisdiction of the forum state.³³⁹ The immunity of a diplomatic agent from the
³³² Chuidian v Philippine National Bank 912 F 2d 1095 (US, Ct of Apps (9th Cir), 1990).
³³³ Jaff e v Miller and Others 95 ILR 446 (Canada, Ontario CA, 1993).
³³⁴ Propend Finance Pty. Ltd v Sing 111 ILR 611(UK, CA, 1997).
³³⁵ Pinochet no 3, 172.
³³⁶ Holland v Lampen-Wolfe (UK, 2000) 1584 (per Lord Millett).
³³⁷ Cf n 210 above.
³³⁸ Cf in this sense D Anzilotti (1910) 496.
³³⁹ Cf a.o. S Sucharitkul (Special Rapporteur ILC), Preliminary Report on Jurisdictional
Immunity of States and their Property, YBILC 1979 ii (part one) 227, 238, § 53; S Sucharitkul
(Special Rapporteur ILC), Third Report on Jurisdictional Immunity of States and their Property,
YBILC 1981 ii (part one) 125, 129, § 9; Report of the Commission on the Work of its Forty-third
jurisdiction of the courts of the receiving state is paradigmatic. When the restrict-
ive rule of state immunity is approached from the perspective of the obligations
imposed by the independence and equality of states the question presents itself,
however, whether ‘immunity from jurisdiction’ is an accurate description of the
rule. Immunity appears as an inherent limit on the sovereign powers of states;
not as the non-exercise of an existing power. A grant of immunity implies that
states are exempted from the exercise of authority by the court while in most cases
covered by the restrictive immunity rule that authority is in fact absent. This
study embraces in this regard a term introduced by Brownlie in his reports for the
Institut de Droit International: the independence and equality of states delimits
‘the essential competence of national courts’.³⁴⁰
The argument that the law of state immunity should be understood from
the perspective of the incompetence of the forum state rather than the immun-
ity of the defendant state is not new. Already in 1922 De Visscher noted in this
respect:
Il est manifeste qu’il ne s’agit pas ici d’un privilège comportant de la part de la juridiction
saisie l’abandon de l’une de ses attributions normales: l’abstention n’implique chez elle
que la reconnaissance des limites naturelles et infranchissables assignées à toute juridic-
tion interne par le principe supérieur du respect des souverainetés.³⁴¹
Some thirty years later the idea was taken up by the French scholars Niboyet
and Freyria, who set out to distinguish ‘immunités de juridiction’ from ‘incom-
pétence d’attribution’.³⁴² Niboyet analysed the problem of the inherent connota-
tions of the concept of immunity in very clear words:
Il semble qu’on pourrait apporter un peu plus de clarté à la matière des immunités de
juridiction en droit international privé, si l’on faisait une distinction qui n’apparaît pas
généralement, bien qu’elle s’impose, entre la compétence territoriale et la compétence
d’attribution. La confusion généralement faite a pour conséquence de faire ranger
dans la compétence territoriale des cas qui appartiennent, en réalité, à la compétence
d’attribution, c’est-à-dire de les considérer comme des immunités de juridiction.³⁴³
Immunity from jurisdiction, he explained, is accorded because of the quality of
certain defendants. It is
Session, YBILC 1991 ii (part two) 12, 23, § 1; GM Badr (1984) 83; Victory Transport Inc v Comisaria
Gen De Abestecimientos y Transportes, (US, 1964) 360.
³⁴⁰ Cf n 355 above.
³⁴¹ C De Visscher (1922) 323.
³⁴² JP Niboyet, ‘Immunité de juridiction et incompétence d’attribution’ (1950) 39 RCDIP 139;
C Freyria, ‘Les limites de l’immunité de juridiction et d’exécution des Etats étrangers’ (1951) 40
RCDIP 207; C Freyria, ‘Les limites de l’immunité de juridiction et d’exécution des Etats étrangers’
(1951) 40 RCDIP 449.
³⁴³ ibid 139. The seeds for the argument developed in this article can already be found in
JP Niboyet (1936) 538. Cf also S Sucharitkul, (1976) 141.
State Immunity 85
la qualité du défendeur, et cette qualité seule, [qui] fait obstacle à la compétence des tribu-
naux français, parce que, sans elle, le litige serait de ceux dont ils peuvent connaître nor-
malement. Il est fait échec aux règles de la compétence territoriale des tribunaux . . .³⁴⁴
Certain disputes, however, are not within the ‘attributions de juger’ of national
courts. The refusal to exercise jurisdiction rests on the lack of compétence
d’attribution rather than immunity from jurisdiction. The ideas of Niboyet were
taken up by Freyria, albeit with a distorting twist.³⁴⁵ Where Niboyet had argued
that restrictive state immunity decisions in fact reflected considerations related
to incompetence ratione materiae (or, compétence d’attribution), Freyria argued
that the state immunity concept had become redundant since ‘l’organisation de
la compétence d’attribution de nos tribunaux judiciaires français’ already suffi-
ciently protected foreign states from French jurisdiction.³⁴⁶ He emphasized that
the rules that command the compétence d’attribution as regards governmental
acts are rules of French national law that apply equally to the French govern-
ment as to foreign governments.³⁴⁷ Although Niboyet had also referred to the
national law principles of attribution of competence between French courts, con-
sidering that ‘[e]n droit interne, un tribunal civil ne peut pas connaître de la valid-
ité d’un acte administratif qui relève du Conseil d’Etat, seul qualifié pour juger
l’administration française’,³⁴⁸ his argument was not based on this consideration
but related to it in a comparative vein. Crucially he considered that
les tribunaux français ne sont pas incompétents en vertu d’une immunité de juridic-
tion parce que leur compétence est totalement étrangère à la qualité du défendeur, mais
découle uniquement de la nature de l’acte, acte essentiellement administratif du pays
étranger, ne peuvent être apprécié par les tribunaux d’un autre pays, sans que ceux-ci ne
s’érigent, se qui serait contraire à l’indépendance des Etats en contrôleurs de leur propre
activité.³⁴⁹
...
un tribunal national ne peut juger une collectivité publique étrangère qui ne relève pas
de lui. Cela sort totalement de ses attributions. Il ne faut donc pas croire qu’à défaut des
immunités de juridiction les tribunaux civils auraient, dans l’ordre international, la pléni-
tude de juridiction à l’égard des collectivités étrangères: cela se heurterait à un principe
fondamental, celui de l’indépendance des Etats et du respect des diverses souverainetés.
S’il existe, en droit interne, plus ou moins respecté, un principe de la séparation des pou-
voirs, il n’y a pas moins, en droit international, depuis plus longtemps, une séparation des
divers pouvoirs nationaux.³⁵⁰
³⁴⁴ JP Niboyet (1950) 141.

³⁴⁵ The article was published in two parts, C Freyria (1951); C Freyria (1951).
³⁴⁶ C Freyria (1951) 450.
³⁴⁷ ibid 460: ‘Nos tribunaux ne seront juges ni de la régularité juridique des actes de notre
administration ni de celle des actes des administrations étrangères.’
³⁴⁸ JP Niboyet (1950) 142.
³⁴⁹ ibid.
³⁵⁰ ibid 143. Cf further P De Visscher and J Verhoeven (1971).
Hence, while Freyria related a mere practical reality from an essentially French
perspective, Niboyet argued from principle and from the perspective of inter-
national law.³⁵¹
Italian courts have indicated that state immunity decisions in fact reflect that
the relations underlying the claim at hand remain completely foreign to the
Italian legal order, either because the foreign state has acted as a subject of inter-
national law or because it has acted as the holder of imperium over a certain ter-
ritory.³⁵² Several scholars have stressed that the question of immunity may only
arise as regards relations that are subject to the national legal order of the forum
state. The formulation of state immunity in terms of relations that are outside the
national legal order serves to establish that the law of state immunity is in fact
unrelated to the concept of immunity from jurisdiction.³⁵³
The idea that the law of state immunity regards incompetence of the forum
state, rather than immunity of the defendant state was further developed in
the work of Brownlie as Rapporteur of the Institut de Droit International. His
reports on the Contemporary problems concerning the jurisdictional immunity of
States proceed from the view that ‘the concept of “immunity” is far from helpful.
It tends to describe a result. However, so far as it indicates a conceptual founda-
tion it is rather misleading.’³⁵⁴ Brownlie stressed that state immunity decisions in
fact reflect principles of public international law related to the essential compe-
tence of national courts. In the 2003 edition of Principles of International Law he
explained that when state immunity is based on the principle of non-interference
‘the national court has no competence to assert jurisdiction: it is a matter of the
essential competence of the local courts in relation to the subject-matter’.³⁵⁵
Also the 1996 study of Cosnard concluded that ‘[s]i la juridiction n’existe pas,
en vertu des limites imposées par le droit international, le refus de juger ne peut
être fondé sur la théorie des immunités de l’État, puisque l’immunité suppose la
³⁵¹ It has been argued that also Niboyet argued from the peculiarities of the French legal system
only: eg P De Visscher and J Verhoeven, ibid 52; G Van Hecke, ‘Notes Critiques sur la Théorie
de la Non-Justiciabilité’ in Nouveaux itinéraires en droit: Hommage à François Rigaux (1993) 517,
517–18.
³⁵² Cf n 254 above.
³⁵³ See in particular G Morelli, Diritto processuale civile internazionale (2nd edn, 1954) 189ff.
³⁵⁴ I Brownlie (Rapporteur Institut de Droit International), Contemporary Problems
45, 46. See also I Brownlie (Rapporteur Institut de Droit International), Contemporary Problems
13; I Brownlie (Rapporteur Institut de Droit International), Contemporary Problems Concerning
the Jurisdictional Immunity of States, Supplementary Report (1989), (1989) 63–I AIDI 13;
I Brownlie, (Rapporteur Institut de Droit International), Contemporary Problems Concerning the
Jurisdictional Immunity of States, Memorandum (1991), (1991) 64–I AIDI 80; Institut de Droit
International (Rapporteur I Brownlie), Contemporary Problems Concerning the Jurisdictional
Immunity of States, Plenary Session (1992), (1992) 64–II AIDI 214; Institut de Droit International,
Resolution on Contemporary Problems Concerning the Jurisdictional Immunity of States (1992),
(1992) 64–II AIDI 267.
³⁵⁵ I Brownlie (2003) 320.
State Immunity 87
juridiction.’ Rather, he observed, ‘[i]l s’agit là d’une absence de pouvoir, non d’une
abstention d’exercer un pouvoir de juger existant au préalable.’³⁵⁶
In sum, while foreign diplomatic agents or foreign states in the early common
law period were indeed exempted from the jurisdiction of the courts, this notion
does not accurately describe the operation of the rule of state immunity today.
Although in exceptional cases foreign states are shielded from otherwise exist-
ing jurisdiction—for example in defamation proceedings³⁵⁷—the rules based on
the independence and equality of states regard the division of essential compe-
tence rather than exemption from jurisdiction. It is not that a rule of immunity
from jurisdiction may not apply in the absence of essential competence. In fact,
immunity from jurisdiction may preclude courts from inquiring into the nature
of the acts complained of and hence from determining their essential competence.
However, the rule of state immunity does not apply indistinctly from the question
of essential competence, rather it is a question of essential competence.³⁵⁸
The formulation of state immunity in terms of lack of competence has always
met resistance of mainstream state immunity doctrine. In particular, the notion
of competence has been held to be incompatible with the accepted role of waiver
in the law of state immunity:
Although it is sometimes expressed in jurisdictional terms, immunity is not, strictly
speaking, a question of jurisdiction in the sense that the court lacks any power to deal
with either the subject-matter or the person before it. Jurisdiction can never be acquired
by consent, but even the most absolute theory of sovereign immunity admits that it may
be waived.³⁵⁹
In sum ‘if the courts were to lack competence in cases of this kind, it is not easy to
see how the foreign State could “attribute” the wanting jurisdiction by means of
this waiver’.³⁶⁰ In fact, the advocates of the non-competence theory tend to agree.
De Visscher noted in this regard:
L’interdiction faite aux tribunaux de statuer sur les actes de puissance publique d’un Etat
étranger a son fondement dans l’intérêt commun des Etats; elle est de ordre public inter-
national. A ce titre elle assigne à la compétence des tribunaux internes une limite absolue,
limite imposée, non par l’idée d’une faveur personnelle, mais par un principe permanent
et supérieur aux intérêts engagés dans le litige. Vainement l’Etat étranger cité en justice
³⁵⁶ M Cosnard (1996) 377 (cf in general 376–89).

³⁵⁷ Cf ibid 399–400.
³⁵⁸ Th is argument must be distinguished from that advanced by Badr. Badr relied on the con-
cept of primary jurisdiction when he argued that the lack of jurisdiction of national courts over acta
jure imperii was not the result of the sovereignty and independence of foreign states but resulted
from a lack of jurisdictional contacts between those acts and the territory of the forum state,
GM Badr (1984) 80 and 92–3.
³⁵⁹ Cargo ex the Ship Atra v Lorac Transport Ltd 84 ILR 700 (Canada, CA, 1986) 708.
³⁶⁰ HF Van Panhuys, ‘In the Borderland between the Act of State Doctrine and Questions of
Jurisdictional Immunities’ (1964) 13 ICLQ 1193, 1199. Cf also YBILC 1981 i 55, 57, § 14: ‘if the
court declined jurisdiction because it lacked competence, neither waiver nor consent could remedy
the defect’.
offrirait-il ici de renoncer à l’immunité de juridiction; cette renonciation serait dépour-
vue d’effet, non pas qu’un Etat ne puisse, dans un cas particulier, se désister de l’exercice
d’un droit souverain, mais parce qu’il ne peut dépendre d’un Etat de conférer aux tribu-
naux d’un autre Etat une compétence qui leur est refusée pour des raisons d’ordre public
international et d’intérêt permanent et que leur propre loi n’a pu, par conséquent, leur
accorder.³⁶¹
While Niboyet considered:
[s]i un Etat, hypothèse d’école, acceptait d’être jugé par nos tribunaux pour un vérita-
ble acte de caractère gouvernemental, nous pensons que nos tribunaux ne seraient pas
obligés de statuer, car les Etats ne sont pas faits pour se juger les uns les autres en pareille
matière.³⁶²
Is it true that jurisdiction can never be acquired by consent? It seems that in the
analysis of this question two distinct aspects of jurisdiction are confused by both
critics and defendants of the ‘non-competence rather than immunity’ thesis. The
absence of consent is an inherent part of the limit on the competence of national
courts imposed by the principle of independence and equality of states. Just as a
state may agree to the jurisdiction of an arbitral tribunal, it may agree to the jur-
isdiction of a foreign national court.³⁶³ This does not create essential but excep-
tional competence of the national court. While thus international law no longer
forms an obstacle, the question arises whether the jurisdictional rules applicable
in the forum state allow the use of the national judicial system in cases that do
not fall within its essential competence. Obviously, the national law rules on jur-
isdiction and competence are impervious to the consent of the defendant in a
particular case. It is this jurisdiction that may never be acquired by consent.³⁶⁴
3.3.2 Why the Distinction between Immunity from Jurisdiction

and Lack of Essential Competence is Relevant
It is sometimes argued that the reference to non-competence instead of immunity
is merely a question of terminology.³⁶⁵ That is disputed here. Although of course
the label used cannot change the nature of the rule, the use of diff erent labels for
³⁶¹ C De Visscher (1922) 321.

³⁶² JP Niboyet (1936) 539. Cf also A Weiss (1923) 535; G Morelli (1954) 191; G Morelli
(1958) 128.
³⁶³ P De Visscher and J Verhoeven (1971) 57–8. Cf L Renault, ‘Un litige international devant la
cour de cassation de France’ (1881) 13 RDILC 22 on the Phare case (France v Nicaragua).
³⁶⁴ Cf eg Socialist Libyan Arab Popular Jamahiriya v Libyan American Oil Company (LIAMCO)
(1981) 37 ASDI 217 (Switzerland, Tribunal Fédéral Suisse, 1980) 223; République du Guatemala v
Société internationale de négoce de café et du cacao SINCAFC et autres (1991) 80 RCDIP 378 (France,
Cour de Cassation, 1990); Consorts Duvalier et autres v État haïtien et autres (1991) 80 RCDIP 386
(France, Cour de Cassation, 1990).
³⁶⁵ G Ress (Rapporteur International Law Association), First Report on Developments in the
Field of State Immunity since 1982, Report of the Sixty-Fourth Conference (1990) 393, 403. Ress
states that Brownlie himself admits that it is just a question of terminology. This is however a mis-
representation of Brownlie’s words. Brownlie merely said that even though state immunity is in
State Immunity 89
related rules does evince their distinct nature. Terminology hence serves a pur-
pose. The qualitative difference between the absolute and restrictive approach
to state immunity has consequences for the parameters of coherent argument
on the scope of the law of state immunity. The distinction of non-competence
and immunity from jurisdiction frees the restrictive rule from some inherited
connotations that have until now influenced the form as well as the substance of
arguments in the debate on the human rights exception.
3.3.2.1 The form of coherent argument

The question as to the influence of international human rights law on the law of
state immunity pivots in essence on the epistemology of international law. Except
for the argument that the rule of state immunity is trumped by hierarchically
higher jus cogens rules, and the argument that states that engage in grave human
rights breaches forfeit any rights they may have under international law, state of
the law arguments regard the substance and scope of the rule of state immunity.
How is the substance of rules of customary international law ascertained and
how do these rules change? Much of the controversy between proponents and
opponents of the human rights exception to the state immunity rule turns on the
form of the reasoning on the ascertainment of the rule. This section sets out to
identify the controversy and through a brief excursion into the theory of custom
formation it eventually chooses sides in the debate.
Custom is usually held to follow the conjunction of two elements: an objective
element—a general and consistent state practice—and a subjective element—the
opinio juris sive neccesitatis. The International Court of Justice formulates it as
follows:
for a new customary rule to be formed, not only must the acts concerned ‘amount to a
settled practice’, but they must be accompanied by the opinio juris sive necessitatis. Either
the States taking such action or other States in a position to react to it, must have behaved
so that their conduct is ‘evidence of a belief that this practice is rendered obligatory by the
existence of a rule of law requiring it’.³⁶⁶
Customary international law is of course not static. Many scholars have reflected
on the conceptual problem inherent in the subjective element of the definition of
custom formation. The ‘chronological paradox’³⁶⁷ of ‘the mysterious phenom-
enon of customary law which is deemed to be a source of law only on condition
fact a matter of non-competence, he would continue to use the conventional terminology of state
immunity.
³⁶⁶ Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v
United States of America) (Merits), ICJ Reports 1986 14, 108–9, § 207. The citation explicitly
refers to North Sea Continental Shelf (Federal Republic of Germany v Denmark, Federal Republic of
Germany v The Netherlands) (Judgment), ICJ Reports 1969 3, 44, § 77.
³⁶⁷ M Byers, Custom, Power and the Power of Rules, International Relations and Customary
International Law (1999) 130.
that it is in accordance with law’³⁶⁸ was first identified by Kelsen.³⁶⁹ Although
it is often argued that this formula cannot account for the development and
change of rules of customary international law,³⁷⁰ it seems that the opinio juris
requirement kicks up more dust in legal theory than it does in practice. In the
Nicaragua case the International Court of Justice—discussing the principle of
non-intervention—held:
Reliance by a State on a novel right or an unprecedented exception to the principle might,
if shared in principle by other States, tend towards a modification of customary inter-
national law.³⁷¹
The thorny question whether acts contrary to established practice but clearly part
of a developing modification of a customary rule are as much a violation of inter-
national law as acts contrary to an established and unchanging rule of customary
international law has not been considered by the ICJ. However, the quote from
the Nicaragua Case as well as the reference in the North Sea Continental Shelf
Judgement to ‘emergent rules of customary international law’³⁷² do not evince a
strenuous dwelling on the hurdles to the development of custom as identified in
theory.³⁷³
The arguments advanced in support of a human rights exception to state
immunity rules however do not rely on the emergence of precedents. Rather,
they purport to rely on logic: the changes in the international legal order brought
about by international human rights law and related concepts like universal jur-
isdiction, jus cogens norms, and erga omnes obligations, are said to have affected
the basis of the law of state immunity in international law. For one, it is argued
that ‘states . . . are clearly prohibited from extreme human rights violations and
cannot claim that such behaviour falls within its sovereign domain’ it is hence
submitted that ‘the reasons for sovereign immunity apply poorly to the case of
extreme human rights violations’.³⁷⁴ In this perspective, the few precedents avail-
able reflect rather than constitute the change.
Opponents of a human rights exception attack proponents on the form of
their argument. For example, in Al-Adsani v UK the European Court of Human
Rights considered that
³⁶⁸ H Lauterpacht, ‘Sovereignty over Submarine Areas’ (1950) 27 BYIL 376, 395.
³⁶⁹ H Kelsen, ‘Théorie du Droit International Coutumier’ (1939) 1 Revue Internationale
de la Théorie du Droit 253, 263. F Geny, Méthode d’ interprétation et sources en droit privé positif
(2nd edn, 1919), 367, had noted the same problem with regard to national legal systems.
³⁷⁰ Cf M Byers (1999) 131.
³⁷¹ Case Concerning Military and Paramilitary Activities in and against Nicaragua (ICJ, 1986)
109, § 207.
³⁷² North Sea Continental Shelf (ICJ, 1969) 39, § 63.
³⁷³ I Brownlie, The Rule of Law in International Aff airs, International Law at the Fiftieth
Anniversary of the United Nations (1998) 21.
³⁷⁴ HM Osofsky, ‘Foreign Sovereign Immunity from Severe Human Rights Violations:
New Directions for Common Law Based Approaches’ (1998) 11 New York International Law
Review 35, 52.
State Immunity 91
[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. In particular, the Court observes that none of the primary
international instruments referred to (Article 5 of the Universal Declaration of Human
Rights, Article 7 of the International Covenant on Civil and Political Rights and Articles
2 and 4 of the United Nations Convention against Torture) relates to civil proceedings or
to State immunity.³⁷⁵
The Court moreover referred to a report of the Working Group on Jurisdictional
Immunities of States and their Property of the International Law Commission
that acknowledged that
while national courts had in some cases shown some sympathy for the argument that
States were not entitled to plead immunity where there had been a violation of human
rights norms with the character of jus cogens, in most cases (including those cited by
the applicant in the domestic proceedings and before the Court) the plea of sovereign
immunity had succeeded.³⁷⁶
The Court considered that the amendment to the FSIA introducing an excep-
tion to state immunity for state sponsored terrorism, only seems to confirm that
‘the general rule of international law remained that immunity attached even in
respect of claims of acts of official torture’.³⁷⁷ Moreover, it was held that the deci-
sion of the House of Lords in Pinochet no 3 should be distinguished since it con-
cerned the immunity from criminal jurisdiction of a former head of state who
was at the material time physically within the United Kingdom. It was concluded
that despite the growing recognition of the overriding importance of the prohib-
ition of torture it
does not accordingly find it established that there is yet acceptance in international law
of the proposition that States are not entitled to immunity in respect of civil claims for
damages for alleged torture committed outside the forum State.³⁷⁸
From the perspective of the two-tier formula of custom-formation the reasoning
of proponents of a human rights exception to state immunity indeed fails to con-
vince. In the absence of an explanation of the epistemological approach the use
of reason in the identification of the substance of a rule may be conceived as con-
founding the is with the ought. Thus, the arguments of proponents seem tainted
with the vices of natural law theory.
Kelsen’s discussion of the difference between natural law and positive law may
serve to illustrate this point. Kelsen distinguished two normative systems based
³⁷⁵ Al-Adsani v United Kingdom (ECHR, 2001) 291, § 61.

³⁷⁶ ibid 291, § 62.
³⁷⁷ ibid 292, § 64.
³⁷⁸ ibid § 66.
on two different types of basic norms. On the one hand there is the static system
in which norms are valid by virtue of their content. In his words:
Their content has an immediately evident quality that guarantees their validity, or, in
other terms: the norms are valid because of their inherent appeal. This quality the norms
have because they derive from a specific basic norm . . . [t]he binding force of [which] is
itself self-evident, or at least presumed to be so . . . [A]ll the particular norms of such a
system are obtainable by means of an intellectual operation.³⁷⁹
In a dynamic normative system, on the other hand, norms cannot be obtained
from the basic norm by intellectual operation since their validity does not derive
from their content. Rather,
[a] norm forms part of a dynamic system if it has been created in a way that is—in the last
analysis—determined by the basic norm.³⁸⁰
In sum, where the basic norm in a static system is a value from which norms are
then derived, in a dynamic system the basic norm is the fundamental rule accord-
ing to which the norms of the system are to be created. The difference is that
between natural and positive law. Legal orders, Kelsen argued, are always systems
of the dynamic kind.³⁸¹
At this point, a pertinent observation presents itself: the scepticism towards
a possible human rights exception to immunity rules resonates the apprehen-
sion with naturalist tendencies in international legal thinking. It is argued here
that the form of the arguments of proponents of a human rights exception can
however be distinguished from natural law reasoning. It is submitted that the
two-tier formula of custom formation does not account for all rules of customary
international law. Diplomatic immunity is a classic example of a customary rule.
Although initially the theory of representation was a popular explanation for the
law of diplomatic immunity—considering diplomats as an extension of the state
and hence anchoring the law in the principle of sovereignty—it is now generally
accepted that the rule is based on the general practice of states while the prac-
tice finds its material cause in the importance of free and independent perform-
ance of diplomatic duties—ne impediatur legatio. In contrast, the formula fits the
restrictive rule of state immunity rather uncomfortably. If the independence and
equality of states imposes limits on the essential competence of national courts,
these limits appear inherent in an international legal order based on these prin-
ciples. What does it mean that the sovereignty and equality of states represents
the ‘basic constitutional doctrine of the law of nations’?³⁸² In particular it must
be questioned whether rules that are necessary to preserve these constitutional
principles have the same epistemological qualities as other rules of customary
³⁷⁹ H Kelsen, General Theory of Law and State (1945) 112 (emphasis added).
³⁸⁰ ibid 113.
³⁸¹ ibid.
³⁸² I Brownlie (2003) 287.
State Immunity 93
international law. What is the role of state practice and consent when a rule is
based on the independence and equality of states?
The following consideration in the Gulf of Maine case may be seen to corrob-
orate the idea of two categories of customary rules with different epistemological
qualities. The Court held in relevant part:
A body of detailed rules is not to be looked for in customary international law which in
fact comprises a limited set of norms for ensuring the co-existence and the vital co-oper-
ation of the members of the international community, together with a set of customary
rules whose presence in the opinio juris of States can be tested by induction based on the
analysis of a sufficiently extensive and convincing practice, and not by deduction from
preconceived ideas.³⁸³
It has been argued that the first class of rules may be determined deductively and
includes rules ‘qui seraient en quelque sorte nécessaires, dictées par les exigences
de la coexistence entre Etats, et constitueraient un irréductible noyau dur du droit
coutumier’.³⁸⁴ It is submitted here that at least the rules that inhere in the prin-
ciple of independence and equality of states together with the pacta sunt serv-
anda rule are necessary rules of international law. The latter rule is the paradigm
example. As Brierly explained:
consent cannot of itself create an obligation; it can do so only within a system of law
which declares that consent duly given . . . shall be binding on the party consenting.
To say that the rule pacta sunt servanda is itself founded on consent is to argue in a circle.
A consistent consensual theory again would have to admit that if consent is withdrawn,
the obligation created by it comes to an end.³⁸⁵
Of course, the limits on the essential competence of national courts are less abso-
lute: they do not inhere in the existence of an international legal order as such—
but in the existence of an international legal order composed of independent
and equal territorial states. Such an order is unthinkable without limits on the
essential competence of states. These limits are hence necessary incidents of the
constitutional principles of the international legal order. Other examples are the
prohibition of aggression and the principle of non-intervention. The ILC referred
to the prohibition of aggression as ‘a conspicuous example’ of jus cogens.³⁸⁶
Arguably it is more than that. Although it is the content of the norm that justi-
fies its jus cogens character the qualification jus cogens is not inherent in the norm
but follows from the normal law creation process.³⁸⁷ Can one however conceive
of an international legal order based on the equality and independence of states
³⁸³ Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States of
America) (Judgment), ICJ Reports 1984 246, 299, § 111.
³⁸⁴ S Sur, La coutume internationale, sa vie, son oeuvre (1990) ii.
³⁸⁵ JL Brierly (1963) 53.
³⁸⁶ Report of the ILC on the work of its seventeenth session, YBILC 1966 ii 169, 247.
³⁸⁷ Cf eg R Higgins (1994) 21; JI Charney, ‘Universal International Law’ (1993) 87 AJIL
529, 542.
without a prohibition of aggression? In this regard it is interesting to note that the
ICJ has termed respect for territorial integrity ‘an essential foundation of inter-
national relations [between independent States]’³⁸⁸ just as the principle of non-
intervention that was even more pointedly qualified ‘a corollary of the principle of
the sovereign equality of states’.³⁸⁹
The argument recalls Judge Tanaka’s reasoning in the South West Africa
Cases.³⁹⁰ Contrasting a ‘formalistic’ with a ‘teleological or sociological and con-
ceptual’ interpretation of international law the Judge found that enlarged rules
of standing inhered in the nature of the rules at issue in the case. He cautioned,
however, that his approach was not to ‘deduce’ rules from ‘mere necessity or
desirability’ but from ‘the raison d’ être and the theoretical construction’ of the
framework of rules applicable to the case. The rule thus ‘deduced’ reflected ‘the
reasonably assumed intention of the parties’ and logic hence found a limit in
voluntarism.³⁹¹
The content of the restrictive immunity rule has an immediate evident
quality—to use Kelsen’s terminology—because it can be derived from the prin-
ciple of independence and equality of states by means of an intellectual operation.
However, the validity of the general principle from which this specific rule can be
obtained is not self-evident. Equality and independence are not inherent rights of
states but fundamental principles on which the present international legal order
is based. As one scholar once noted ‘[t]he concept of an international community
made up of sovereign States is the basis of our intellectual framework for inter-
national law.’³⁹² The restrictive state immunity rule has an inherent appeal not
because it corresponds to a certain value, but because it is inherent in an accepted
constitutional principle.
³⁸⁸ Corfu Channel Case (United Kingdom v Albania) (Merits), ICJ Reports 1949 4, 35
(emphasis added). See also North Sea Continental Shelf (ICJ, 1969) 28–9, § 37 and K Marek, ‘Le
problème des sources du droit international dans l’arrêt sur le plateau continental de la mer du
Nord’ (1970) 6 RBDI 55, 60. It should also be noted that in the Continental Shelf Case (Libya
Arab Jamahiriya v Malta) (Application to Intervene, Judgment) the ICJ considered that ‘[i]t is of
course axiomatic that the material of customary international law is to be looked for primarily in
the actual practice and opinio juris of States . . .’, ICJ Reports 1984 3, 290, § 80 (emphasis added).
Quoted again in Case Concerning Military and Paramilitary Activities in and against Nicaragua
(ICJ, 1986) 97, § 183.
³⁸⁹ ibid 106, § 202. The Concise Oxford Dictionary of Current English (9th edn, 1995) defines
‘corollary’, in relevant part, as: 1 (a) a proposition that follows from (and is often appended to) one
already proved (b) an immediate deduction. 2 (often foll by of ) a natural consequence or result.
³⁹⁰ South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Second Phase),
ICJ Reports 1966 6, 248, Dissenting Opinion Judge Tanaka. Cf 277ff.
³⁹¹ While the Court did not follow Judge Tanaka at the time, it can be argued that the deci-
sion in the Barcelona Traction case sanctioned Judge Tanaka’s reasoning after all, cf The Barcelona
Traction, Light and Power Company, Limited (Belgium v Spain) (Second Phase), ICJ Reports 1970 3,
32, discussed in ch 6 § 1 of this study.
³⁹² C Schreuer, ‘The Waning of the Sovereign State: Towards a New Paradigm for International
Law?’ (1993) 4 EJIL 447, 447.
State Immunity 95
What does this mean for the ascertainment of the scope of the rule? In par-
ticular, what is the relation between state practice and the scope of the law of
state immunity? Can it be maintained that state immunity is ‘a general principle
which the inductive method has shown to be limited in the practice of States
by the operation of several exceptions’,³⁹³ if it is at the same time agreed that
‘[i]mmunity operates as long as there is a legal basis for it’ and that ‘[i]n the absence
of such basis there is no immunity’?³⁹⁴ It is submitted that it cannot. Since the
principle of independence and equality of states is not the material but the formal
cause of the rule a critical discussion of state practice in light of these principles
is possible.
Of course, as Anzilotti already argued almost a century ago, states may agree
to grant more immunity than required by these principles. He distinguished, in
this respect, necessary from voluntary immunity rules. A general and consistent
state practice may establish a voluntary state immunity rule beyond the neces-
sary immunity inherent in the limits of the essential competence of national
courts that is in its nature comparable to the law of diplomatic immunity. In this
respect, some considerations of Chief Justice Marshall in The Schooner Exchange
may also be recalled. The judge emphasized that states had consented to ‘a relax-
ation in practice’ of their absolute and complete territorial jurisdiction because
the ‘mutual benefit’ of states ‘is promoted by intercourse with each other, and
by an interchange of those good offices which humanity dictates and its wants
require’.³⁹⁵ However, with the possible exception of state immunity from defam-
ation claims, state practice does not evidence the acceptance of such a voluntary
state immunity concept.
State practice purports to give effect to the limitations on essential compe-
tence imposed by the principles of independence and equality of states. While
state practice is an important indicator of the agreed scope of the requirements
flowing from these principles, a rational discussion on the scope of the law of state
immunity is possible as long as this practice is said to purport to give effect to
these principles. This perspective also explains the distinction between the rule
of state immunity and its application—introduced in section 3.2.3. It is recalled
that normal custom requires a general and consistent state practice. In the Asylum
case,³⁹⁶ the state practice regarding diplomatic asylum was held not to satisfy this
requirement. The Court explained that
[t]he facts . . . disclose so much uncertainty and contradiction, so much fluctuation and
discrepancy in the exercise of diplomatic asylum and in the official views expressed on
³⁹³ Report of the Commission on the work of its thirty-fifth session, YBILC 1983 ii (part two)
17, 26, § 11.
³⁹⁴ S Sucharitkul (Special Rapporteur ILC), Fourth Report on the Jurisdictional Immunities
of States and their Property, YBILC 1982 ii (part one) 199, 207, § 33 and restated in Report of the
Commission on the work of its thirty-fifth session, YBILC 1983 ii part two) 17, 27.
³⁹⁵ The Schooner Exchange v M’Faddon (US, 1812) 136.
³⁹⁶ Asylum Case (Columbia v Peru), ICJ Reports 1950 266.
different occasions, there has been so much inconsistency in the rapid succession of con-
ventions on asylum, ratified by some States and rejected by others, and the practice has
been so much influenced by considerations of political expediency in the various cases,
that it is not possible to discern in all this any constant and uniform usage, accepted as
law . . .³⁹⁷
Scholars at times note the apparent tension between this requirement and the
reality of the law of state immunity. Jennings noted in this respect that there
may ‘[n]o doubt . . . be problems in attempting to derive a rule of international
law from the practice which differs so much from one municipal jurisdiction to
another. Yet it is difficult to see how immunity can be denied the status of a rule
of international law.’³⁹⁸ The perspective on the law of state immunity as a neces-
sary incident of an international community consisting of independent and equal
states allows a reasoned explanation of this state of affairs. The absence of uniform
practice does not regard the rule of state immunity but rather the interpretation
of the requirements flowing from the principles of independence and equality
of states, or, the assessment of the question when proceedings in a foreign court
would violate these principles.
More in general, it should be noted that in this area of law the existence of
opinio juris as to the material state practice is not self-evident. In the North
Sea Continental Shelf Cases the ICJ considered that there was no evidence that
the available state practice on the delimitation of continental shelf boundaries
according to the equidistance principle was supported by opinio juris. The fact
that many states were parties to the 1958 Geneva Convention on the Continental
Shelf that laid down the equidistance principle in article 6, made that these states
were ‘acting actually or potentially in the application of the Convention’ rather
than because they felt legally compelled to draw them in this way by reason of
a rule of customary law obliging them to do so. It concluded that ‘[f]rom their
action no inference could legitimately be drawn as to the existence of a rule of
customary international law in favour of the equidistance principle.’³⁹⁹ In the
field of state immunity considerations other than the requirements under inter-
national law may be seen to underlie state practice.
For one, it is often pointed out that states ‘may accord immunity as a mat-
ter of comity, deference or strategy’.⁴⁰⁰ This is only reinforced by the hope to
receive reciprocal treatment when the roles are reversed. Although it is commonly
emphasized that the principle of reciprocity has operated as a motor for the devel-
opment of the restrictive theory, it must be realized that this ‘ripple effect’ requires
a first stone.⁴⁰¹ Since the principal bearer of the duty and the possible bearer of
³⁹⁷ ibid 277.

³⁹⁸ R Jennings (1988) 4–5. Cf A Orakhelashvili, Peremptory Norms in International law (2006)
337 for the argument that there is indeed no customary international law on state immunity.
³⁹⁹ North Sea Continental Shelf (ICJ, 1969) 43, § 76.
⁴⁰⁰ J Crawford (1983) 78. Cf also S Sucharitkul (1976) 119.
⁴⁰¹ For the term ‘ripple effect’ cf GM Badr (1984) 135.
State Immunity 97
the right is not the principal bearer of the negative consequences of the grant of
immunity, reciprocity operates as a motor when the immunity rule is moving
towards a more restrictive interpretation but operates as a powerful brake to the
start of this process.
Moreover, the codification of the rule of state immunity in national legislation
means that state immunity decisions often reflect the strictures of national rather
than international law. National legislation ‘inevitably . . . reflects the differing
constitutional laws, or a particular view of the relationship between municipal
law and international law’.⁴⁰² As Lord Wilberforce noted in I Congreso, ‘to argue
from the terms of a statute to establish what international law provides is to stand
the accepted argument on its head’. He cautioned that ‘if one State chooses to lay
down by enactment certain limits, that is by itself no evidence that those limits
are generally accepted by States. And particularly enacted limits may be (or pre-
sumed to be) not inconsistent with general international law—the latter being in
a state of uncertainty—without affording evidence what that law is.’⁴⁰³ In sum, a
national court decision may, in the words of Borchard, only be evidence of what
international law is not.⁴⁰⁴
If a certain application of the rule cannot be explained by reference to either
the necessary or the voluntary state immunity concept, the limitation of the jur-
isdiction of the court has a national law character and qualifies as international
comity. One example is the application of stricter jurisdictional standards in pro-
ceedings against foreign states: it is generally agreed that international law does
not require states to impose stricter standards in commercial disputes with a for-
eign state defendant.⁴⁰⁵
In brief, there is room for reason in the ascertainment of the law of state immun-
ity. The analysis of the influence of international human rights law on the law of
state immunity and hence the arguments in favour or against a human rights
exception to state immunity rules cannot be limited to the standard inductive
approach to the identification of exceptions to the rule. It may for instance be
argued that the principles of independence and equality of states are not violated
when jurisdiction is exercised over human rights violations of foreign states. In
chapter 6 we will see that scholars that argue that human rights violations do
not constitute sovereign acts for the purpose of the restrictive theory adopt this
approach—albeit without articulating a justification for the form of their argu-
ments. Moreover, it may be argued that the role of the principles that underlie the
rule of state immunity has changed. In this respect regard may inter alia be had
to the state practice on other rules that give expression to these principles—like
⁴⁰² R Jennings (1988) 6.

⁴⁰³ I Congreso del Partido (UK, 1981) 260.
⁴⁰⁴ Quoted in JL Kunz, ‘The Nature of Customary International Law’ (1953) 47 AJIL
662, 668.
⁴⁰⁵ CH Schreuer (1988) 36; J Crawford (1983) 109.
the rule of exhaustion of local remedies and the international dispute settlement
rule.⁴⁰⁶
Sucharitkul argued that
the method of approach and conduct of studies is inevitably an inductive one . . . rules
of international law on the topic must of necessity be based on the practice of the courts
of various countries, large and small, and on the case-laws of various types of municipal
legal systems.
The law of nations on the subject under examination is to be found in the customary
rules of international law as evidenced by the practice of States.’⁴⁰⁷
General studies on the rule of state immunity usually proceed from a basic rule
of immunity, and formulate a list of exceptions to this rule.⁴⁰⁸ The exceptions
are then derived from the perusal of state practice with regard to immunity law
for the existence of precedents supporting this type of exception to state immun-
ity. The limits of the area of non-immunity however are not necessarily drawn
inductively. In his influential study on state immunity for the Institut de Droit
International Brownlie commented that
the subject of State Immunity has acquired an hermetic quality which creates an unfor-
tunate isolation from the general framework of international law principles.⁴⁰⁹
This is a critical observation. The isolation of the subject of state immunity is,
however, only a practical reality, that cannot detract from the inextricable link
between state immunity and principles of international law. Hence, state immun-
ity decisions have acquired a hermetic quality, not the state immunity concept.
To sum up, the finding that the rule of restrictive state immunity is—in prin-
ciple—a necessary incident of the independence and equality of states has conse-
quences for the legitimacy of the form of arguments on the scope of the rule. In
particular, it should be acknowledged that there is room for arguments based on
‘reason’ or ‘logic’ in the debate on the human rights exception and that hence the
form of arguments of proponents of a human rights exception appears rational.
⁴⁰⁶ It should be noted that the proposed approach to ascertainment of the substance of the
requirements under international law is to some extent comparable to, but in essence distinct from,
the ideas developed by Crawford in the course of his extensive work on the rule of state immun-
ity. Cf J Crawford (1983); Australian Law Reform Commission, Foreign State Immunity, Report
no 24 (1984).
⁴⁰⁷ S Sucharitkul, ‘Developments and Prospects of the Doctrine of State Immunity, Some
Aspects of Codification and Progressive Development’ (1982) 29 NILR 252, 259.
⁴⁰⁸ A prominent exception to this practice is the Resolution of the Institut de Droit International
on Contemporary Problems Concerning the Immunity of States in Relation to Questions of
Jurisdiction and Enforcement (1992) that proposed two sets of countervailing criteria for the
determination of the applicability of the state immunity rule in a particular case, Institut de Droit
International, Resolution on Contemporary Problems Concerning the Jurisdictional Immunity of
States (1992), (1992) 64–II AIDI 267.
⁴⁰⁹ I Brownlie (Rapporteur Institut de Droit International), Contemporary Problems
13, 17.
State Immunity 99
It must in conclusion be noted that also from another perspective the form of
arguments of opponents is questionable. The recognition of the basis of the law of
state immunity in the principle of independence and equality of states does not
only expand the range of possible arguments in the debate. The emphasis on the
absence of state practice to support the human rights exception represents the
issue as a mere progression of the trend of limiting the immunity of states from
foreign jurisdiction. It implies that states have shown a willingness to limit the
privilege of immunity for commercial disputes and must now decide whether a
similar limit will be accepted for gross human rights violations. The argument
disregards the qualitative difference between the absolute and the restrictive
approach to state immunity. The comment that it is state immunity ‘which is the
exception to jurisdiction and not jurisdiction which is the exception to a basic
rule of immunity’⁴¹⁰ is valid as far as it criticizes the formulation of the restrictive
rule as a basic rule of immunity with exceptions accepted to it. Indeed, the grant
of immunity in the area of non-immunity under the restrictive rule would be an
exception to the jurisdiction of the forum. This, however, is not true with the
grant of state immunity in the area of immunity under the restrictive rule.
3.3.2.2 The substance of coherent argument

State of the law arguments based on logic and reason must proceed from an
understanding of the rule of state immunity. When an argument exceeds the
boundaries of logic it is no longer coherent in a discussion of what is the law and
can only qualify as a policy argument on what ought to be the law. The argument
that jus cogens violations do not qualify as sovereign acts under the rule of state
immunity must hence be tested against the acta jure imperii concept set out in
section 3.2 of this chapter.
Policy arguments may be equally incoherent when they fail to reflect the
rationales of both human rights law and state immunity law. The argument
that obligations under state immunity law clash with obligations under inter-
national human rights law should properly reflect the nature and substance of
the respective obligations. In this respect, policy arguments against a voluntary
state immunity rule may not convince when relied on in the debate on the scope
of a necessary rule. In particular, the arguments of proponents of the human
rights exception are influenced by the connotation of privilege, or of immunity as
a shield from justice, that attaches to voluntary rules—but not to necessary rules.
In this respect, proponents often refer to Lauterpacht’s characterization of
state immunity as ‘an archaic and cumbersome doctrine of controversial validity
and usefulness’⁴¹¹ or to his argument that ‘[a]t a period in which in enlightened
⁴¹⁰ R Higgins (1982) 271. Cf eg I Sinclair (1980) 113, 215; I Brownlie (Rapporteur Institut de
Droit International), Contemporary Problems Concerning the Jurisdictional Immunity of States,
Definitive Report (1987), (1987) 62–I AIDI 45, 147 (observations of S Sucharitkul); McDonnell
Douglas Corp. v Islamic Republic of Iran (US, 1985) 348.
⁴¹¹ H Lauterpacht (1951) 247.
communities the securing of the rights of the individual, in all their aspects, against
the state has become a matter of special and significant effort, there is no longer a
disposition to tolerate the injustice which may arise whenever the state . . . screens
itself behind the shield of immunity in order to defeat a legitimate claim.’⁴¹²
Another popular quotation is that taken from the dissenting opinion of Justice
Musmanno in the Chemical Resources case. The judge had argued against the grant
of immunity to Venezuela in a commercial dispute, pungently stating that
[t]he sovereign immunity doctrine . . . is no longer a healthy manifestation of society. It
is, in fact, an excrescence on the body of the law, it encourages irresponsibility to world
order, it generates resentments and reprisals. Sovereign immunity is a stumbling block in
the path of good neighborly relations between nations, it is a sour note in the symphony
of international concord, it is a skeleton in the parliament of progress, it encourages gov-
ernment toward chicanery, deception and dishonesty. Sovereign immunity is a colos-
sal effrontery, a brazen repudiation of international moral principles, it is a shameless
fraud.⁴¹³
The disregard for the distinction between necessary and voluntary immunity
rules, or, for the qualitative difference between the restrictive and the absolute
approach to state immunity, is reflected in judicial and academic thinking on
the law of state immunity. The idea that also the restrictive rule of state immun-
ity prevents access to an otherwise available court is widespread. In this respect
it is interesting to note that the US Supreme Court still explicitly relies on The
Schooner Exchange v M’Faddon arguing that ‘foreign sovereign immunity is a
matter of grace and comity on the part of the United States’.⁴¹⁴ While this rea-
soning was coherent in the context of the grant of immunity to the schooner
Exchange in 1812, it is obviously less convincing in the context of the contempor-
ary restrictive immunity concept. We will see in chapter 6 of this study that the
term ‘state immunity from jurisdiction’ induces circular reasoning. Courts and
scholars alike argue that state immunity is an exception to the normal territorial
jurisdiction of the forum state because it is called immunity from jurisdiction.
Restrictive immunity however can not be seen to shield states from the normal
judicial process. The Legal Advisor to the US State Department aptly put it when
he explained that ‘the purpose of sovereign immunity in modern international
law is not to protect the sensitivities of 19th-century monarchs or the preroga-
tives of the 20th century state’.⁴¹⁵ Since there is a qualitative difference between
the absolute and the restrictive theory of state immunity the forceful arguments
⁴¹² ibid 235.

⁴¹³ Chemical Natural Resources v Republic of Venezuela 42 ILR 119 (US, 1966) Dissenting
Opinion of Musmanno JJ, 122.
⁴¹⁴ Verlinden BV v Central Bank of Nigeria (US, 1983), 486.
⁴¹⁵ Statement of Monroe Leigh, Legal Advisor of the State Department, Jurisdiction of
US Courts in Suits Against Foreign States: Hearings on HR 11315 Before the Subcomm on
Admin Law and Governmental relations of the House Comm On the Judiciary, 94th Cong, 2d
Sess 24, 27.
State Immunity 101
formulated some fifty years ago against the absolute state immunity rule form no
authority for delimiting state immunity beyond the logical limits imposed by the
principles of independence and equality of states. In fact—as was explained in
section 2.3.2 above—Lauterpacht explicitly recognized that his arguments did
not affect the prohibition to exercise jurisdiction over foreign states in regard to
several categories of acts. Most pertinently, he emphasized that ‘no action should
lie with regard to torts committed by foreign states and their organs in their own
territory. These must be left either to judicial remedies within that foreign state
or to appropriate diplomatic action in accordance with the accepted practice of
diplomatic protection of citizens abroad.’⁴¹⁶
3.3.2.3 Conclusion
Both Anzilotti and Lauterpacht recognized that so-called ‘immunity’ rules can
be divided in rules that define the sovereignty of the forum and rules that operate
as an exception to that sovereignty. Anzilotti used in this regard the insightful
terms ‘necessary’ and ‘voluntary’ immunity rules, while Lauterpacht—in what
was arguably a purist approach to the issue—did not regard the former rules state
immunity rules at all.
In 1950 Niboyet urged state immunity doctrine to clearly distinguish the state
immunity concept from the immunity ratione personae of diplomats and heads
of state:
Comme l’anatomiste, il doit procéder à toutes sortes de coupes et séparer les tissus les uns
des autres pour restituer à chacun son originalité propre.⁴¹⁷
This section has set out why the distinction of these concepts is indeed import-
ant. In anticipation of chapter 6 of this study it was explained that the debate on
the human rights exception is shaped by a failure to distinguish the anatomy of
the two concepts. The acknowledgement of the inherent quality of the law of state
immunity both expands and limits the parameters of coherent arguments in the
debate. While on the one hand arguments based on logic and reason do—quite
exceptionally—have a proper role to play in the ascertainment of the scope of
the law of state immunity, on the other hand coherent arguments must appre-
ciate the basis of the contemporary state immunity concept in the principles of
independence and equality of states.
4 Conclusions
The study of the history of the state immunity concept reveals a troubled regime
and a poorly articulated foundation. Judicial and academic thinking on the rule
⁴¹⁶ H Lauterpacht (1951) 238.

⁴¹⁷ JP Niboyet (1950) 158.
of state immunity has severed the rule from its rationales. Courts and scholars
alike have focused on the formulation of the exceptions to the rule, rather than on
the theory underlying that rule. In particular, the difference between the absolute
immunity theory and the restrictive immunity theory is commonly approached
as merely quantitative, rather than qualitative in character.
A coherent debate on a human rights exception to the rule of state immunity
must reflect a thorough understanding of the nature, substance, and scope of that
rule. This chapter set out to develop the tools for the determination of parameters
of coherent argument in the debate on the influence of human rights law on the
rule of state immunity. To this end, the rule was approached from the perspec-
tive of the principles of the independence and equality of states. The sovereignty
of states—and hence the essential competence of their courts—finds its limit in
the sovereignty of other states. The principle of independence would be violated
if a national court would claim competence over the exercise of exclusive com-
petences of a foreign state. Moreover, the principle of equality would be violated
if a national court would claim competence over the determination of rights or
obligations of a foreign state under international law.
On the basis of these findings it was argued that the epistemological qual-
ities of the restrictive rule of state immunity are distinct from those of ordinary
rules of customary international law. In contrast to voluntary immunity rules—
like the rule of diplomatic immunity—state practice is not formative of such a
necessary state immunity rule. The rule is inherent in an international legal order
based on the independence and equality of its members. As long as legislation or
jurisprudence is said to give effect to the wants of the principles of independence
and equality of states there is room for logic in the ascertainment of the require-
ments of international law without lapsing into natural law reasoning. The form
of coherent state of the law arguments is hence not limited to inductive reason-
ing, not even if it is an argument as to the scope of the rule of state immunity. The
particular nature of the restrictive state immunity rule does however not only
expand the range of coherent argument. The substance of coherent state of the law
and policy arguments must reflect the theoretical foundations of the rule.
3
Functional Immunity
1 Introduction
The functional immunity of (former) foreign state officials is often approached

as a corollary of the rule of state immunity. The reasoning of the UK Court of
Appeal in Propend Finance v Sing is typical in this respect:
The protection afforded by the [SIA] to States would be undermined if employees, officers
or . . . ‘functionaries’ could be sued as individuals for matters of State conduct in respect
of which the State they were serving had immunity. [The relevant provision of the SIA]
must be read as affording individual employees or officials of a foreign State protection
under the same cloak as protects the State itself.¹
From this perspective, the question as to the influence of international human
rights law and international criminal law on the immunity of foreign state offi-
cials is in fact a question as to the scope of the rule of state immunity applicable
to the foreign home state. In this regard, the approach of the House of Lords in
the Pinochet case is conspicuous. The former head of state of Chile had invoked
immunity from the jurisdiction of the UK courts as regards, inter alia, allegations
of torture committed during his term of office. Lord Browne-Wilkinson para-
phrased the central question to be ‘whether international law grants state immun-
ity in relation to the international crime of torture’.² Differentiation between
cases involving foreign states and cases involving foreign state officials is then
only possible from the perspective of developments in the field of international
human rights law or international criminal law—as in fact was proposed in the
Pinochet case—not from the perspective of the concept of immunity itself. A sep-
arate treatment of the immunity of state officials hence appears unnecessary.
Section 2 of this chapter proposes a different view on the rule of functional
immunity. If state officials are considered immune because their home state would
have been immune had it been sued instead, the rule of state immunity appears
as a veritable act of state immunity. However, the rule of state immunity applies
only when a national court is asked to exercise its jurisdiction over a foreign state.
¹ Propend Finance Pty Ltd v Sing (UK, 1997) 669.

² R v Bow Street Metropolitan Stipendiary Magistrate and others, ex p Pinochet Ugarte (Amnesty
International and others intervening) (UK, 1999) (Pinochet no 3) 111.
This chapter will argue that in fact, many functional immunity decisions offer
support for the assertion that the law of state immunity only applies if the foreign
state is the nominal or factual defendant in the proceedings. If state immunity
is to be a rule anchored in the principles of independence and equality of states,
rather than a rule protecting ‘the sensitivities of 19th-century monarchs or the
prerogatives of the 20th century state’³ it should not be allowed to lapse into a
rule of act of state immunity. Recent judicial and academic thinking on the rule
of functional immunity evidences that this danger in fact looms large. This chap-
ter will argue that the application of the rule of state immunity to foreign state
officials should be seen to rely on a premise regarding the legal position of the
state official concerned. Functional immunity—it will be argued—is not dir-
ectly related to the immunity of the state but rather regards an autonomous rule
of international law concerning this premise. Foreign state officials do not incur
responsibility in their personal capacity for acts committed as arm or mouthpiece
of their home state. Such acts must be regarded as acts of the state rather than as
acts of the official and are termed official acts. State officials can only be called to
account in regard to these acts in their official capacity. A suit against an official
in regard of such acts would therefore involve impleading the foreign sovereign.
The suggestion that the rules on state immunity determine the position of state
officials before foreign national courts will hence prove deceiving. Rather, state
immunity may be applied to cases involving foreign state officials as a conse-
quence of the operation of the rule of functional immunity.
Section 3 will contrast this conception of the rule of functional immunity with
two other conceptions that feature—ever more prominently—in academic and
judicial thinking on the rule. Most prominent is the act of state immunity argu-
ment as accepted in Propend Finance v Sing and confirmed by the House of Lords
in its 2006 decision in Jones v Saudi Arabia.⁴ In addition it is sometimes argued
that foreign state officials enjoy functional immunity in respect of all acts that
can be imputed to their home state. It stands to reason that the arguments in
the debate on functional immunity and human rights are shaped by the concep-
tion participants have of the applicable rules. The influence of both alternative
conceptions of the rule on the debate will be analysed and contrasted with the
conception proposed in this study.
This chapter sets out the nature and substance of the rules determining the
competence of national courts over (former) foreign state officials in order to
identify the tools needed for the development and assessment of state of the
law and policy arguments in the debate on a possible human rights (or rather,
³ Statement of M Leigh, Legal Adviser of the State Department, Jurisdiction of US Courts in

Suits Against Foreign States: Hearings on HR 11315 Before the Subcommittee on Administrative
Law and Governmental relations of the House Committee on the Judiciary, 94th Cong, 2d Sess
24, 27.
⁴ Jones v Saudi Arabia (UK, 2006).
Functional Immunity 105
international crimes) exception to these rules. It prepares the ground for the crit-
ical discussion of the various arguments in the current debate that will follow in
chapter 5.
2 Which Came First—The Chicken or the Egg? State

Immunity as a Consequence of Functional Immunity
Rather than Functional Immunity as a Corollary
of State Immunity
2.1 Kelsen’s Act of State Immunity Argument

Kelsen rationalized the immunity of state officials from the jurisdiction of
foreign national courts in the following terms:
No state is allowed to exercise through its own courts jurisdiction over another state
unless the other state expressly consents . . . Since a state manifests its legal existence only
through acts performed by human beings in their capacity as organs of the state, that is
to say, through acts of state, the principle that no state has jurisdiction over another state
must mean that a state must not exercise jurisdiction through its own courts over acts
of another state unless the other state consents. Hence the principle applies not only in
case a state as such is sued in a court of another state but also in case an individual is the
defendant or the accused and the civil or criminal delict for which the individual is pros-
ecuted has the character of an act of state.⁵
The immunity of the foreign state official thus appears as a logical consequence
of the principle of state immunity. It was as a consequence of the rule of state
immunity, Kelsen argued, that state officials could not be held personally respon-
sible for acts that can be imputed to the state. It is not difficult to see that the
argument necessarily relies on the concept of act of state immunity. If the law of
state immunity is understood from the concept of the direct or indirect impli-
cation of a foreign state—as proposed in chapter 2 of this study—the reasoning
advanced by Kelsen acquires a problematic circularity.
Chapter 2 explained that the principle of equality and independence of states
limits the essential competence of national courts. These principles are compro-
mised if jurisdiction is exercised, either directly or indirectly, over the exclusive
competences of a foreign state. The implication of the foreign state is a prerequis-
ite for the application of the law of state immunity. If not the nominal defendant,
⁵ H Kelsen, Principles of International Law (RW Tucker (ed), 2nd edn, 1966) 358. Cf also
H Kelsen, Principles of International Law (1952) 235; H Kelsen, ‘Collective and Individual
Responsibility for Acts of State in International Law’ (1948) Jewish Yearbook of International Law
226; H Kelsen, ‘Will the Judgment in the Nuremberg Trial Constitute a Precedent in International
Law?’ (1947) 1 ILQ 153; H Kelsen, Peace Through Law (1944); H Kelsen, ‘Collective and Individual
Responsibility in International Law with Particular Regard to the Punishment of War Criminals’
(1943) 31 California Law Review 530.
a state is impleaded when it is the proper or factual defendant in a case before a for-
eign court. If a national court is asked to declare the legislation of a foreign state
invalid even within the territory of that state such an implication is inherent in the
claim. However, if compensation is asked for alleged tortious activity of a foreign
state official that can be attributed to a foreign state the implication is not imme-
diately obvious. Can it be said that the state is the factual defendant when one of
its officials is sued in his personal capacity for acts (ostensibly) committed in an offi-
cial capacity? Only when that official cannot bear responsibility in his personal
capacity or when the case clearly sets out to affect the rights and obligations of the
state through the implication of its official can it be said that such proceedings
in fact implead the home state. In the argument advanced by Kelsen the absence
of personal responsibility is however only the consequence of the applicability of
the law of state immunity. The implication of the state is hence irrelevant for the
operation of the law of state immunity. Kelsen clearly advanced a broader rule of
act of state immunity, protecting the foreign state even from proceedings that do
not purport to exercise jurisdiction over it but merely question the legality of acts
that can be imputed to it. As he himself put it: ‘The immunity from the jurisdic-
tion of another State is not, as this principle is usually formulated, attached to the
very “person” of the State . . . but to the acts of the State as the acts performed by
the government, at its command, or with its authorization.’⁶
2.2 Non-Personal Responsibility as an Autonomous

Principle Preceding State Immunity
The application of the rule of state immunity to foreign state officials can be
explained in different terms. As a rule, foreign state officials do not incur personal
responsibility for acts committed under the authority of their home state. That
this principle is distinct from the law of state immunity is already clear from
the fact that state officials may be immune in cases where the state—under the
restrictive approach to state immunity—is not. A claim for payment of, say, pen-
cils ordered for the office—a pure actum jure gestionis for the purposes of the law
of state immunity—cannot be recovered from the personal bank account of the
state official that happens to have placed the order.⁷ Upon closer consideration,
the functional immunity of foreign state officials concerns this non-personal
responsibility for acts committed as the arm or as mouthpiece of the home state.
⁶ H Kelsen (1944) 82–3.

⁷ Discussing the extent of the functional immunity of former diplomats under art 39.2 of
the VCDR Denza aptly notes that ‘[t]here will undoubtedly be some cases where the send-
ing State may under restricted rules of state immunity be subject to local jurisdiction whereas
its diplomatic agent remains immune on an indefinite basis under Art 39.2 because the acts
in question were performed in the exercise of his functions as a member of the mission.’
E Denza, Diplomatic Law, A Commentary on the Vienna Convention on Diplomatic Relations
(2nd edn, 1998) 363.
The non-personal responsibility of state officials for acts committed on behalf

of the state may be seen to be an autonomous principle that precedes in its oper-
ation the application of the rule of state immunity to the facts of a case. While
under the reasoning proposed by Kelsen the individual state official cannot be
held personally responsible; in the autonomous variant the individual state offi-
cial bears no responsibility in his personal capacity. An Italian court formulated
the principle as follows:
for acts done by them in their public capacity diplomatic agents and subordinate per-
sonnel cannot be made personally responsible, for the reason that it is not the diplomatic
agent or the member of his staff but the foreign State for which they act which has to be
regarded as responsible.⁸
In this regard, Anzilotti explained that acts performed by diplomatic agents in
the exercise of official functions are ‘facts legally imputable not to him but to
another subject’.⁹ Or, as Conforti commented, ‘the agent cannot be summoned
to appear in court to account for them civilly or criminally, not because he is
accorded immunity, but because they are not his acts.’¹⁰
The application of the law of state immunity to cases involving foreign
state officials is often premised on the absence of personal responsibility of the state
official that happened to have performed the act. Where a claim against a state
official personally is not possible, the state is regarded the factual—if not the nom-
inal—defendant when a claim against that official is instigated nevertheless.
2.2.1 Functional Immunity as the Non-Personal Responsibility

for Official Acts
2.2.1.1 The principle identified
When a state official contracts on behalf of the state the non-personal involve-
ment is most obvious. A case in point is Monnaie v Caratheodorou Eff endi which
concerned a claim instigated against the former Ottoman Ambassador in Brussels
for the payment of the costs of a new heating system installed at the Embassy. The
Belgian court rejected the claim arguing in relevant part:
les fournitures dont il s’agit ont été incontestablement commandées pour compte du
gouvernement ottoman, et en vue de permettre à celui-ci l’exercice de son droit
⁸ Società Arethusa Film v Reist 22 ILR 544 (Italy, Tribunal of Rome, 1953) 546.
⁹ D Anzilotti, ‘Case Comment’ (1915) 9 RDI 217, 219 (my translation): ‘fatti che non a lui, ma
ad un altro subietto debbono essere giuridicamente riferiti.’ Cf also D Anzilotti, ‘Case Comment’
(1912) 6 RDI 501, 501; A Cavaglieri, ‘Règles générales du droit de la paix’ (1929–I) 26 RdC 311,
470; A Malintoppi, ‘Su l’esenzione giurisdizionale degli agenti diplomatici’ (1954) 37 RDI 118,
121; A Malintoppi, ‘Attività imputabile a Stato estero e responsabilità personale dell’individuo-
organo’ (1955) 38 RDI 84; P Cahier, Le droit diplomatique contemporain (1962) 253 and 308.
¹⁰ B Conforti, Diritto internazionale (3rd edn, 1987) 220 (emphasis added) (my translation):
‘L’agente non può essere citato in giudizio per rispondere penalmente o civilmente, non perché gli
sia riconosciuta una immunità ma perché non si tratta di atti suoi.’ Cf in similar terms B Conforti,
Diritto internazionale (6th edn, 2002) 229.
de représentation et de légation dans notre pays: que seul ledit gouvernement en tire
profit; . . . le défendeur ne pourrait donc être tenu personnellement de ce chef . . .¹¹
The McLeod—or Caroline—case is the classic example of the non-personal
responsibility principle in practice. During the Canadian Rebellion of 1837
British forces violently captured the vessel The Caroline while it was on the US
side of the border between the two countries. Within the US and especially along
the Canadian border sympathy with and even support for the cause of the rebels
existed. The British government maintained that the vessel was being used as
a means of transport for the rebels as well as for the deliverance of supplies to
them. The vessel was set afire and abandoned to the current that eventually led
it to descend the Niagara Falls. In the course of this operation two Americans
were killed. The incident sparked a diplomatic row. The US considered the attack
‘an offense to the sovereignty and the dignity of the United States, being a vio-
lation of their soil and territory’ and demanded reparation. The UK emphasized
that it concerned an act of necessary self-defence. The negotiations that ensued
concentrated on the applicable principles of international law: the law of neutral-
ity, the principle of non-interference, and the rules on self-defence.¹² One issue
was added to the negotiations when in November 1840 McLeod—a British
national—was arrested while visiting New York. He was believed to have been
one of the officials taking part in the seizure of the Caroline and was indicted for
murder and arson.
On 13 December 1840 the British Minister at Washington, Fox, protested
the arrest in a letter to the American Secretary of State, Forsyth. He argued
that McLeod had been arrested for acts for which he did not bear individual
responsibility since they had been performed on orders from and under the
authority of the British state. Only after a change of administration in March
1841 did the United States prove receptive to the British arguments. In that
same month the new Secretary of State, Webster, communicated the execu-
tive’s position in a letter to the Attorney-General, the pertinent part of which
reads as follows:
it raises a question entirely public and political, a question between independent nations;
and . . . individuals connected in it cannot be arrested and tried before the ordinary
¹¹ Monnaie v Caratheodorou Eff endi JT 1903 col 764 (Belgium, Tribunal civil de Bruxelles,
1903) (emphasis added). Cf also Mellerio v Isabelle de Bourbon (1874) 1 JDI 32 (France, Tribunal
civil de la Seine, 1872) ; A-C Kiss, Répertoire de la pratique française en matière de droit inter-
national public (1965) iii, 270; L’Empereur d’Autriche v Lemaitre (France, 1872); Répertoire de la
pratique française en matière de droit international public (1965) iii, 269; Angelo-Poulos v Ferton
Sirey 1809–11 2, 514 (France, Cour de Paris, 1811); Bernet et autres v Herran, Dreyfus-Scheyer et
autres, A-C Kiss, Répertoire de la pratique française en matière de droit international public (1965)
iii, 237 (France, Cour de Paris, 1880); Bradford v Director General of Railroads of Mexico 3 AD 182,
case no 132 (US, Court of Civil Appeals of Texas (El Paso) 1925); Lord McNair, International Law
Opinions (1956) i, 192.
¹² Cf RY Jennings, ‘The Caroline and McLeod Cases’ (1938) 32 AJIL 82.
tribunals, as for the violation of municipal law. If the attack on the Caroline was unjus-
tifiable, as this Government has asserted, the law which has been violated is the law of
nations; and the redress which is to be sought is the redress authorized, in such cases, by
the provisions of that code.
...
That an individual forming part of a public force and acting under the authority of
his Government, is not to be held answerable, as a private trespasser or malefactor, is a
principle of public international law sanctioned by the usages of all civilized nations, and
which the Government of the United States has no inclination to dispute.
...
whether the process be criminal or civil, the fact of having acted under public author-
ity, and in obedience to the orders of lawful superiors, must be regarded as a valid defence;
otherwise, individuals would be holden responsible for injuries resulting from the acts of
Government, and even from the operations of public war.¹³
In the absence of the appropriate legal tools the US Government however proved
incapable of compelling the State of New York to release McLeod. He was eventu-
ally acquitted upon proof of alibi in October 1841. The issue was again discussed
in the correspondence between the British Foreign Secretary Lord Ashburton
and Webster in the run-up to the Webster–Ashburton Treaty that settled the
Caroline incident. In a letter dated 28 July 1842 Lord Ashburton wrote:
Individuals have been made personally liable for acts done under the avowed authority of
their Government; and there are now many brave men exposed to personal consequences
for no other cause than having served their country. That this is contrary to every prin-
ciple of international law it is useless for me to insist.
He inquired whether
the Government of the United States is now in a condition to secure in effect and in
practice the principle which has never been denied in argument, that individuals act-
ing under legitimate authority are not personally responsible for executing the orders of their
Government.¹⁴
The US did not dispute the principle invoked. Webster acknowledged that
for an act committed by the command of his sovereign . . . an individual cannot be respon-
sible, in the ordinary courts of another State. It would regard it as a high indignity if a
citizen of its own, acting under its authority, and by its special command, in such cases,
were held to answer in a municipal tribunal, and to undergo punishment, as if the behest
of his Government were no defense or protection to him.
¹³ Letter Webster, 15 March 1841, 29 British & Foreign State Papers, 1139, partly cited in RY
Jennings, ibid 94.
¹⁴ Letter Lord Ashburton, 28 July 1842, 30 British & Foreign State Papers, 195, cited in RY
Jennings, ibid 95 (emphasis added).
Webster further wrote that it was because of peculiarities of the US legal
system that the release of McLeod had not been immediate. ‘[P]ersons arrested
on charges of high crimes’, he explained ‘can only be discharged by some judicial
proceeding.’¹⁵
Also the British Law Officers confirmed McLeod’s non-personal responsibility
for the Caroline incident. When some years after his release from prison McLeod
pressed for compensation for his imprisonment through the British Government,
the Foreign Office sought advice of the Law Officers on the merits of the claim.
Their Report reads in relevant part:
The principle of International Law that an individual doing a hostile act authorised and
ratified by the government of which he is a member cannot be held individually answer-
able as a private trespasser or Malefactor, but that the act becomes one for which the State
to which he belongs is in such case alone responsible, is a principle too well established to
be now controverted . . .¹⁶
The principle of non-personal responsibility for acts committed under authority
of a foreign state is still regularly recognized in state practice. An example can
be found in the travaux préparatoires on article 39.2 of the Vienna Convention
on Diplomatic Relations. While diplomatic immunity ends with the end of the
accreditation of the diplomatic agent the article provides that ‘with respect to acts
performed by such a person in the exercise of his functions as a member of the
mission, immunity shall continue to subsist’. The discussions within the ILC on
this provision evince that such acts were considered ‘not really private acts at all
but acts of the sending State’.¹⁷ This in fact is the rule of functional immunity as it
applies to all (former) foreign state officials.¹⁸
While consular agents are, during their term of office, arguably protected by a
personal immunity ‘in respect of acts performed in the exercise of their consular
functions’, their immunity is often explained with reference to the functional
¹⁵ Letter Webster, 6 August 1842, 30 British & Foreign State Papers, 201. This ‘peculiarity’ was
in fact remedied before long. In August 1842 the United States Congress enacted a law allowing
federal judges to discharge any person proved to have acted under the commission, order, or sanc-
tion of a foreign power. Cf 30 British & Foreign State Papers, 202–3.
¹⁶ Report Law Officers (1854) FO 83.2209, cited in RY Jennings, ibid 97.
¹⁷ Chairman J Zourak on the rationale of art 30.2 of the Draft Report on the Law Relating to
Diplomatic Intercourse and Immunities (now art 39.2 VCDR), YBILC 1957 i 217, § 22 (emphasis
added).
¹⁸ Cf B Conforti (2002) 242; G Morelli, Diritto processuale civile internazionale (2nd edn, 1954)
201; A Cavaglieri, Corso di diritto internazionale (2nd edn, 1932) 329. The process of qualifica-
tion of an act as official for functional immunity purposes is different when an official operates on
the territory of the forum state, as is further explained in § 2.2.1.2 and 2.2.1.3 below. See Former
Syrian Ambassador to the German Democratic Republic 115 ILR 595 (Federal Republic of Germany,
Federal Constitutional Court, 1997), for the anomalous argument that art 39.2 secures some spe-
cial diplomatic immunity: ch 4 § 2.1.2.1 below; cf also M Tomonori, ‘The Individual as Beneficiary
of State Immunity: Problems of the Attribution of Ultra Vires Conduct’ (2003) 29 Denver Journal
of International Law and Policy 101, 121.
immunity for official acts.¹⁹ Thus, an Italian court considered that the issue of a
passport by a foreign consul ‘constitute[s] an activity of the sending State and not of
the consul personally’.²⁰
Likewise, a German court considered a report issued by New Scotland Yard
according to which the Church of Scientology was guilty of criminal offences
against its members ‘direct State conduct’ that could ‘not be attributed as private
activities’ to the Head of New Scotland Yard in his personal capacity only because
he happened to be authorized to issue the report.²¹ In a comparable case against
the Chief of the German Federal Police, a Dutch court considered that a report of
the German Police on the Church of Scientology ‘can only be regarded as an act
done in his official capacity and not as a private person’.²²
The Philippine case of Sanders et al v Veridiano et al concerned a claim for
libel. The claim was instigated by two US officials employed at the US Naval
Base against their superiors—also US officials employed at the Base. In a dispute
over the terms of the employment of claimants official correspondence between
the superiors described the character and functioning of the claimants in terms
these latter considered to be libellous. The Supreme Court reasoned that as the
foreign state officials sued in this case had ‘acted on behalf of that government,
and within the scope of their authority, it is that government, and not the petition-
ers personally, that is responsible for their acts.’²³
In the 1997 decision of the ICTY in Prosecutor v Blaškić the principle at hand
was discussed in some detail.²⁴ Croatia had challenged the legal power and
authority of the Tribunal to issue compulsory orders to Croatian state officials
¹⁹ Art 43.1 1963 Vienna Convention on Consular Relations (VCCR) 596 UNTS 261.
²⁰ Re Rissmann (1971) 54 RDI 702 (Italy, Tribunale di Genova, 1970); 71 ILR 577, 581. In a
similar vein another Italian court stressed that a diplomatic agent is not personally responsible for
acts committed as the organ of the state—like the engagement of contractual obligations on the
part of the state: Soc Vivai industriali Roma v Legazione dell’Arabia Saudita (1955) 38 RDI 79 (Italy,
Tribunale di Roma, 1953).
²¹ Church of Scientology Case (Federal Republic of Germany, 1978) 198 (emphasis added).
²² Church of Scientology in the Netherlands Foundation and Others v (1) Herold and (2) Heinrich
Bauer Verlag 65 ILR 380 (The Netherlands, DC of Amsterdam, 1980) 381–2 (emphasis added).
²³ Sanders v Veridiano 162 SCRA 88 [1988] (Philippines, S Ct, 1988) (emphasis added); 102
ILR 148. Cf also United States of America and Others v Guinto, Valencia and Others, United States of
America and Others v Ceballos and Bautista, United States of America, Lamachia and Others v Rodrigo
and Genove 102 ILR 132 (Philippines, S Ct, 1990) especially 139; and Baer v Tizon (Philippines,
S Ct, May 1974); Wylie v Rarang (Philippines, S Ct, May 1992); United States of America v Reyes
(Philippines, S Ct, March 1993) available at <http://www.lawphil.net/judjuris/judjuris.html>.
²⁴ Prosecutor v Blaškić IT–95–14, Judgment on the Request of the Republic of Croatia for
Review of the Decision of Trial Chamber II of 18 July 1997 (ICTY, Appeals Chamber, 1997). In
the Krstić case the Appeals Chamber decided that subpoenas to give evidence of what a state offi-
cial saw or heard at a time when he was a state official and in the course of exercising his official
functions were not covered by the rule of functional immunity. The crucial question, it appears, is
whether the state official must be deemed to have been summoned as the state. The appeals chamber
argued that ‘[u]nlike the production of State documents, the State cannot itself provide evidence
which only such a witness could give’: Prosecutor v Krstić IT–98–33, Decision on Application for
Subpoenas (ICTY, Appeals Chamber, 2003) § 20–8, cf especially § 24–5.
to produce certain documents. The Appeals Chamber agreed that the tribunal
could not address subpoenas or other binding orders to state officials acting in
their official capacity. ‘Such officials’, it held, ‘are mere instruments of a State and
their official action can only be attributed to the State. They cannot be the subject
of sanctions or penalties for conduct that is not private but undertaken on behalf
of a State. In other words, State officials cannot suffer the consequences of wrong-
ful acts which are not attributable to them personally but to the State on whose
behalf they act: they enjoy so-called “functional immunity”.’²⁵
In sum, foreign state officials enjoy functional immunity in regard to official
acts. Acts committed as a mere arm or mouthpiece of a foreign state are acts of
that state rather than acts of the officials personally. Accordingly, state officials
cannot be called to account for them in their personal capacity.
2.2.1.2 The principle explained in terms of international law:

presumption of authority
It is often argued that functional immunity derives from the principle of respect
for the internal organization of the foreign state.²⁶ One Italian court referred in
this regard to ‘the principle of international law of respect for the internal legal
organisation of every state by all other states, from which derives the obligation
for all of them to consider the activity of the organs of foreign states as activity
imputable to the state itself and not to the physical persons of its functionar-
ies, and thus to not attach civil or criminal consequences of a personal character
to the activity of these functionaries—to the extent that they qualify as agents
who performed acts within their functions’.²⁷ However, as Balladore Pallieri
aptly pointed out, this reasoning fails to account for the application of the rule of
functional immunity in cases where the state official does in fact incur personal
responsibility under the laws of his home state.²⁸
The non-personal responsibility for official acts is of course a principle widely
recognized in national legal systems. In international law however the principle
acquires an extra dimension. In most national legal systems state officials may
be sued in their personal capacity for ultra vires conduct, as well as for serious
mistakes in the performance of their mandate. The Philippine Supreme Court,
for example, explains that as a general rule state officials ‘can be held personally
²⁵ ibid § 38 (emphasis added).

²⁶ Cf eg G Morelli(1954) 201ff; G Morelli, Nozioni di diritto internazionale (7th edn, 1967)
215ff. Cf also T Perassi, Lezioni di diritto internazionale (1955) 105; A Tanzi, L’ immunità dalla
giurisdizione degli agenti diplomatici (1991) 9.
²⁷ Soc Vivai industriali Roma v Legazione dell’Arabia Saudita (Italy, 1953) 82 (my translation):
‘principio di diritto internazionale . . . rispetto dell’organizzazione giuriddica interna di ogni Stato
da parte di tutti gli altri Stati, da cui discende l’obbligo per ciascuno di essi di considerare l’attività
degli organi di Stati stranieri come attività imputabile agli Stati stessi e non alle persone fisiche dei
suoi funzionari, e quindi non ricollegare all’attività di questi ultimi—in quanto agenti nella loro
qualifica—consequenze civili o penali di carattere individuale.’
²⁸ G Balladore Pallieri, Diritto internazionale pubblico (8th edn, 1962) 371ff.
accountable for acts claimed to have been performed in connection with official
duties where they have acted ultra vires or where there is showing of bad faith.’²⁹
Moreover, generally applicable normative limits are often seen to circumscribe
the protective mandate of state officials. In the United States, state officials can
for example be sued in their personal capacity for constitutional torts committed
under the colour of law.³⁰
As regards foreign state officials a comparable inquiry is typically not made.
That acts performed under ostensible authority but in excess of actual author-
ity are attributable to the person of the state official is equally true for foreign
state officials. The difference lies in the tools available to courts to determine such
a discrepancy. In a Canadian case against US state officials the court explicitly
stated that ‘[t]he illegal and malicious nature of the acts alleged do not of them-
selves move the actions outside the scope of the official duties of the responding
defendants.’³¹ As regards the act of a foreign consul committed within the terri-
tory of his home state a French court considered that even if they were ultra vires
‘[o]nly the courts of the country which the Consul represents are competent to
deal with such abuse of power.’³² In general it can be said that ostensible authority
is accepted as actual authority.
The principle of respect for the internal organization of the foreign state can
hence not adequately explain the rule of functional immunity of foreign state
officials. Other theories have been advanced. Quadri, for example, has based the
rule on the obligation not to interfere in the constitutional life of foreign states;
while Seyersted based it on the protection of the organic jurisdiction of states.³³
²⁹ Chavez v Sandiganbayan 193 SCRA 282 [1991] (Philippines, S Ct, 1991).

³⁰ The US Supreme Court had already held in Ex p Young 209 US 123 (1908) 159–60 that
when a state official acts under a state law in a manner that violates the Federal Constitution he
‘comes into conflict with the superior authority of that Constitution, and he is in that case stripped
of his official or representative character and is subjected in his person to the consequences of his
individual conduct. The State has no power to impart to him any immunity from responsibility
to the supreme authority of the United States’ (emphasis added). This case was however limited to
actions for prospective injunctive relief. In Bivens v Six Unknown Federal Narcotics Agents 403 US
388 (1971) the Supreme Court recognized a civil remedy for individuals whose constitutionally or
legally protected rights had been violated by persons acting under colour of law. Also relevant in
this regard is 42 USC 1983 that provides a civil action for deprivation of rights (the section reads
in relevant part: ‘Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for redress . . .’). The Supreme
Court has emphasized that no 11th amendment immunity is available in personal capacity suits,
even when the alleged act has been performed in an official capacity, cf Hafer v Melo 502 US 21
(1991).
³¹ Jaff e v Miller and Others (Canada, 1993) 460.
³² Boyer v Aldrète 23 ILR 445 (France, Tribunal Civil de Marseille, 1956) 446. The relevance of
the situs of the act will be explained in § 2.2.1.3 below.
³³ R Quadri, Diritto internazionale pubblico (5th edn, 1968) 614; F Seyersted, ‘Jurisdiction
over Organs and Officials of States, the Holy See and Intergovernmental Organisations,’ (1965)
14 ICLQ 31, 33.
Roughly stated, both scholars argued—albeit it in different terms—that the
relation between a state and its officials is within the exclusive competence of that
state.³⁴ Balladore Pallieri himself argued that the rule did not inhere in any prin-
ciple but simply concerned a rule of customary international law.³⁵ We cannot
dwell here on the particulars of each of these theories. The theories of Quadri and
Seyersted are arguably too categorical. For one, as will be argued in the following
section, the acts of state officials that operate within the territory of the forum
state are subject to a less marginal review.
It is suggested here that it is not as much the relation between the state and
its officials that is within the exclusive competence of the state, but rather the
mandate and directions given to state officials while exercising the authority of
the state under international law. Accordingly, if a foreign state inquires into
that mandate it purports to exercise jurisdiction over an exclusive competence
of another state. The presumption of authority is hence an aspect of the law of
state immunity. The ICTY in Prosecutor v Blaškić reasoned along these lines. The
Tribunal held that
customary international law protects the internal organization of each sovereign State:
it leaves it to each sovereign State to determine its internal structure and in particular to
designate the individuals acting as State agents or organs. Each sovereign State has the
right to issue instructions to its organs, both those operating at the internal level and
those operating in the field of international relations, and also to provide for sanctions or
other remedies in case of non-compliance with those instructions. The corollary of this
exclusive power is that each State is entitled to claim that acts or transactions performed
by one of its organs in its official capacity be attributed to the State, so that the individual
organ may not be held accountable for those acts or transactions.³⁶
It should be emphasized that this does not mean that the functional immunity
of the foreign state official as such is part of the law of state immunity. The non-
personal responsibility for acts that are in law the acts of the state is an autono-
mous principle. The law of state immunity merely influences the operation of that
principle. In the application of the rule of functional immunity the foreign state
is not as much immune in respect of the act as in respect of the instructions preced-
ing that act. As long as state officials perform acts in their official capacity within
the context of the exercise of state authority under international law they are
presumed to have acted as a mere arm or mouthpiece of their home state.
The substantive rather than procedural character of functional immunity
has consequences for the scope of the rule. In the first place, the immunity is
not dependent on an official’s term of office. It applies to former and incumbent
³⁴ Cf eg F Seyersted, ibid 33: ‘The organic jurisdiction of a state implies that all its relations
with—and all relations between and within—its organs and officials as such are governed by the
public law and by the executive and judicial organs of that State and not by the public or private law
or the organs of any other State.’
³⁵ G Balladore Pallieri(1962) 371ff.
³⁶ Prosecutor v Blaškić (ICTY, 1997) § 41. Cf also § 43.
officials alike. With regard to officials that operate abroad it must be noted more-
over that the functional immunity applies not only between the receiving and the
sending state but erga omnes, as regard all third states.
The rule of functional immunity does of course not oblige courts to blindly
accept any claim of a foreign state that an official has acted under its authority. A
court may independently inquire into the reasonableness of such claim. Certain
acts are so inherently personal that it cannot reasonably be claimed that they were
performed under authority of a state. It is hard to dispute, for instance, that a
head of state that murders the proverbial gardener in a fit of rage was committing
anything but a purely private crime. Likewise, the veil of state authority could not
convincingly cover the trade in narcotic substances for purely private benefit.³⁷
That such a purely private act is committed during the exercise of an official’s
functions does not make a difference.³⁸ In sum, the claim that acts should be
attributed to the state rather than to the state official personally cannot be friv-
olously relied on by foreign states to protect their state officials.
The UK case Re P (No 2) provides an illustrative example of the limits of the
argument.³⁹ When the German wife of a US diplomat in London started divorce
proceedings in Germany, she applied to the High Court in London for restraining
orders in order to prevent the father from taking their two children with him to the
US. The High Court upheld the argument advanced by the father and the United
States—intervening in the proceedings—that it lacked jurisdiction because both
the father and the children possessed diplomatic immunity and dismissed the
application.⁴⁰ Immediately after that judgment and upon the end of the term of
office of the father, the children were removed to the United States. The mother
then commenced proceedings in the High Court seeking a declaration that the
father had wrongfully removed the children from the United Kingdom. The
father and the USA—which again intervened—argued that the English courts
lacked jurisdiction on the ground that the father had returned to the US with the
children on the orders of the US Government and claimed that therefore ‘his act
was one performed in the exercise of his functions as a member of the US diplo-
matic mission in the UK and that he was entitled to immunity under article 39.2
VCDR’. That claim was resolutely—and rightly—rejected by the court.⁴¹
³⁷ United States v Noriega 746 F Supp 1506 (US, DC for the Southern District of Florida, 1990)
1519; United States v Noriega 117 F 3d 1206 (US, Ct of Apps (11th Cir), 1997). Although the case
was primarily decided on the ground that Noriega had not been recognized as a head of state,
the courts did in addition note the non-official character of the crimes at issue. Cf also Jiminez v
Aristeguieta 311 F 2d 547 (US, Ct of Apps (5th Cir), 1962).
³⁸ Cf eg L v The Crown 68 ILR 175 (New Zealand, S Ct, Auckland, 1977). Cf however
Commonwealth v Jerez 457 NE2d 1105 (US, 1983) 1109; and Yugoslav Consul Immunity Case 73
ILR 689 (Germany, Supreme Provincial Court of Bavaria, 1973).
³⁹ Re P (No 2) 114 ILR 485 (UK, High Court, Family Division; CA, Civil Division, 1998).
⁴⁰ Re P (No 1) 114 ILR 478 (UK, High Court, Family Division, 1997).
⁴¹ Re P (No 2) (UK, 1998) 495. See § 3.3 below for a discussion of the second part of this case
which concerned the remarkable decision that the former diplomat was covered by the law of state
immunity.
The international law rule of functional immunity does neither entail that all
acts that can be attributed to the state qualify as official acts. The rule that osten-
sible authority presumes actual authority is premised on the exercise of authority
under international law. As regards foreign state officials that exercise exclusive
competences on the territory of the forum state, the scope of authority neces-
sarily depends on an agreement between the home state and the forum state.
(See section 2.2.1.3 below). Moreover, when a home state defeats the presump-
tion of authority, an act may no longer qualify as official for functional immunity
purposes (See section 2.2.1.4 below). In both cases the ultra vires conduct never-
theless may be attributable to the foreign state.
2.2.1.3 Inherent limits of the presumption of authority

The rule that ostensible authority presumes actual authority only applies if for-
eign state officials act within the context of the exercise of state authority under
international law. It was explained in chapter 2 of this study that with this we
mean not that a state acts in accordance with international law but rather that
it acts in the capacity of (externally) sovereign state. Two distinct situations were
identified. States act in such capacity when they exercise exclusive territorial
competences, or when they operate within the context of international law.⁴²
Accordingly—unless the international law element comes into play—the rule
that only the home state may determine the scope of an official’s authority finds
its limit in territorial boundaries. Authority to exercise sovereign activity in the
territory of a foreign state is by definition dependent on the consent of the foreign
territorial state. Outside the territory where the home state exercises exclusive
competence, the authority of a state official that performs sovereign activity is
also defined by the agreement between the sending and receiving state on the
scope of his functions. If the official acts within the agreed limits of the sovereign
function the presumption of authority applies since the foreign state has been
allowed to act within its authority under international law. If not, the principle of
functional immunity applies without this presumption. In sum, as regards acts
within the territory of the forum state an independent inquiry into the scope of
the mandate of the foreign state official may be undertaken.
Let us take a look at the relevant state practice. The position of foreign state
officials that exercise sovereign authority abroad is best discussed on the basis
of consular immunity practice. Since diplomatic agents enjoy an almost abso-
lute personal immunity during their term of office, only cases against former
diplomatic agents will normally discuss the rule of functional immunity. The
immunity of the consular officer is however much more limited and cases against
consular officers are in general instructive on the rule. Article 43.1 of the 1963
Vienna Convention on Consular Relations provides that
⁴² Cf ch 2 § 3.2.
[c]onsular officers and consular employees shall not be amenable to the jurisdiction or
administrative authorities of the receiving state in respect of acts performed in the exer-
cise of their consular functions.
While arguably article 43.1 regards the immunity ratione personae of a consular
officer rather than his immunity ratione materiae the article is often said to pro-
vide functional immunity—or immunity for official acts—to consular officers
rather than any form of personal immunity.⁴³ The case law based on article 43.1
is therefore often phrased in terms of the rule of functional immunity.
The state practice on libel claims against foreign consular officers illustrates
that the mandate of a consular officer is not unilaterally determined by the
sending state but also depends on the consent of the receiving state. The French
case Zizianoff v Bigelow⁴⁴ concerned a US consular officer in Paris. Princess
Zizianoff brought a libel claim against the officer who had informed the press
that the princess’ application for a visa was rejected because she was considered
an international spy. The US claimed that the French courts were not compe-
tent to deal with the claim since its officer had acted in the performance of his
duties when furnishing the information. The Court of Appeal rejected that claim
holding that ‘the conduct complained of could in no way be associated with the
performance of his official duties’. It argued in particular that the comments
‘whether considered apart from or in association with the official function
itself, constitute a grave offence calculated to prejudice private interest, and are
personal in character. This offence can be clearly separated from the official
⁴³ See eg I Brownlie(2003) 355; LT Lee, Consular Law and Practice (1991) 484; Y Dinstein,
Consular Immunity from Judicial Process, With Particular Reference to Israel (1966) 23 and 25;
R Jennings and A Watts (eds)(1992) i 1144; Third Restatement, § 463, Reporters note 1, and
Comment a; Harvard Law School, Research in International Law (Reporter Q Wright) Legal
Position and Functions of Consuls (1932 supplement) 26 AJIL 189, 339; J Zourek (Special
Rapporteur ILC) First Report on Consular Intercourse and Immunities, YBILC 1957 ii 71, 99,
and Second Report on Consular Intercourse and Immunities, YBILC 1960 ii 10; Report of the
ILC on the work of its Thirteenth session, YBILC 1961 ii 88, 117; Rubin v Console della Repubblica
di Panama (1978) 61 RDI 565 (Italy, Corte di Cassazione, 1978); Church v Ferraino (1987) 23
RDIPP 325 (Italy, Corte di Cassazione, 1986).
The provision then secures functional immunity for those acts that states can only engage in
with the consent of the territorial state. A consular officer may act on behalf of his home state with-
out engaging in a typical consular function—just as a diplomatic agent may perform an official act
that is not a specific function of the diplomatic mission. A conspicuous example is the signing of
a rental contract for the consular—or diplomatic—premises. Art 53.4 VCCR sees to this broader
rule of functional immunity in general providing that although the immunity of a consular offi-
cer ceases when his term of office has come to an end ‘with respect to acts performed by a consular
officer or a consular employee in the exercise of his functions, immunity from jurisdiction shall
continue to subsist without limitation of time’.
It could be argued that even for as far as the scope of art 43.1 overlaps with the scope of the rule of
functional immunity, the use of the latter term to describe the former rule is inapposite because of
the distinct nature of the two rules. Art 43.1 could be seen to secure immunity from jurisdiction in
respect of acts performed in the exercise of consular functions. This obstacle to jurisdiction renders
an inquiry into the functional immunity of the consular again redundant.
⁴⁴ Princess Zizianoff v Kahn and Bigelow 4 AD 384, case no 266 (France, Tribunal correctionnel
of the Seine, CA of Paris, Court of Cassation, 1927–28); (1929) 23 AJIL 172.
function performed by Bigelow and in no way involves an examination of the
said function’.⁴⁵
A similar case came before the US courts a few decades later. A Venezuelan
national in political exile in the US brought an action for libel against the Consul
General of Venezuela in New York.⁴⁶ Plaintiff alleged that the consul had pub-
lished articles in Venezuelan newspapers that reflected negatively on his social,
moral, political, and professional standing and was circulating copies of those
articles via mailing lists and in the consulate. The court in considering whether
the defamatory acts could be seen to form part of the consul’s functions empha-
sized the importance of the specific mandate as agreed for the specific state offi-
cial before it. It held that ‘a consul’s duties are commercial but . . . they may be
enlarged by special authority. To be effective such an enlargement must, how-
ever, “be recognized by the government within whose dominions he assumes to
exercise it”.’⁴⁷ The Venezuelan Ambassador in his letter to the Secretary of State
asserted that the consul’s mandate had indeed been enlarged and that the official
had acted upon specific request of the Venezuelan authorities. In fact, the ambas-
sador stressed ‘he would have been remiss in carrying out his official instructions
had he failed to do so.’⁴⁸ The court did not agree. It regarded the fact that the rele-
vant letter had been submitted to it without comment by the State Department
as a further indication that no enlargement of functions had been recognized and
that the acts complained of fell outside the limits of the consul’s mandate.
It was stated above that as long as the official that is allowed to exercise sov-
ereign activity on the territory of a foreign state acts within the agreed limits of
that sovereign function the presumption of authority applies. In other words,
foreign states have a discretion to exercise the sovereign function in accordance
with their policy preferences. This discretion is most visible in those cases where
a consular officer is considered protected by immunity even when the perform-
ance of a typical consular function has violated the law of the receiving state.
The Italian court in the Rissmann case famously considered the activity of the
Consul of Germany in Genoa to have been performed within the exercise of
⁴⁵ ibid 386. The Attorney-General in this case explicitly stated that the ‘French courts cannot be
bound by the opinion of the Government of the United States which thinks that Consul Bigelow
has acted within the scope of his duties’ ((1929) 23 AJIL 172, 177).
⁴⁶ Arcaya v Páez 23 ILR 436 (US, DC for the District of New York, Ct of Apps (2nd Cir), 1956
and 1957). Cf also Mario Cardile v Amílcar Bresso et al 8 AD 403, case no 192 (Argentina, Federal
S Ct, 1937); and Kovtunenko v U Law Yone 31 ILR 259 (Burma, S Ct, 1960). It is recalled that
Boyer v Aldrète (France, 1956) (n 32 above) concerned a libel action concerning activity outside the
receiving state. Cf Diff erence Relating to Immunity from Legal Process of a Special Rapporteur of the
Commission on Human Rights (The Cumaraswamy Case) Advisory Opinion, ICJ Reports 1999 62,
for an example of speech as ‘official act’ for the purpose of the immunity of an official of an inter-
national organization.
⁴⁷ ibid 441.
⁴⁸ ibid 442.
his functions even though he had violated Italian criminal law.⁴⁹ The Consul
had issued a passport and travel documents for a minor resident in Italy and
assisted her to leave Italy in order to join her father, a German national resident
in Germany. While the minor was a German national under German law and a
German court had entrusted guardianship to her father, under Italian law she
was an Italian national and an Italian court had entrusted her to her mother,
resident in Genoa. Criminal proceedings were instituted against the Consul. In
an official memorandum the German Embassy in Rome objected that Rissmann
had acted in the exercise of his functions and invoked consular immunity on his
behalf. In response to the claim of immunity the court first considered the nature
of the concept of consular immunity. It held that
functional immunity . . . finds its justification in the general principle according to which
the consul’s acts, even though they may be valid within the legal system of the receiving
State and thus produce legal consequences therein, constitute an activity of the sending
State and not of the consul personally, since, in the exercise of his office he is accountable
to his government. Such an immunity is not, therefore, merely procedural. It is based on a
principle of substantive law and continues even after his tour of office has terminated.⁵⁰
With regard to the acts violating Italian criminal law the court considered that
there can be no doubt that Rissmann, in issuing her with a German passport, was carry-
ing out a true and proper official act as Consul
...
It should not be forgotten that Consuls, being State agents operating abroad, do not
exceed the scope of their functions when they act in accordance with the laws of their
country which they must comply with in so far as these laws are to be applied abroad.
...
There can be no doubt that the German Federal Republic, in the aforementioned
memorandum of its Embassy in Rome had fully assumed responsibility for the Consul’s
action, as it complied with the provisions of the German legal system to which Rissmann’s
conduct was required to conform.⁵¹
The Court of Cassation affirmed the decision underlining that the agent had
acted ‘within the limits of his functions’ carrying out ‘acts proper to his office’.⁵²
⁴⁹ Re Rissmann (Italy, 1970), (1973) 9 RDIPP 121 (Corte di Cassazione, 1972). See 71 ILR 577
for both decisions. The decision of the Court of Cassation is hardly more than an affirmation of the
decision of the Tribunal of Genoa.
⁵⁰ 71 ILR 577, 581.
⁵¹ ibid 582–3.
⁵² ibid 583. See for a critical note on the Rissmann case, L Condorelli, (1976) 2 Italian Yearbook
of International Law 339. He was of the opinion that the German consul had acted in contempt of
Italian laws and regulations and had jeopardized a specific order of an Italian judge ‘thus placing
himself outside the limits of his functions’. Consular functions, he argued, should be exercised
with respect for laws of the receiving state (341). To support his argument Condorelli approv-
ingly referred to art 21 of the Harvard Draft Convention on the Legal Position and Functions of
Consuls, Harvard Law School, Research in International Law (Reporter Q Wright) Legal Position
and Functions of Consuls, (1932 supplement) 26 AJIL 189, 338, that laid down that ‘the receiving
Similar reasoning can be found in the US case of State of Indiana v Ström.⁵³
Criminal suit was brought against Ström, a Swedish consul in the US, for supply-
ing a passport to a Swedish national who was accused of murder in the US, thus
allowing him to return to Sweden. The court held in relevant part:
There is no doubt that consuls . . . are immune from certain actions even if those actions
violate the local criminal laws of the receiving State . . . even though a consul covered by
the [Vienna Convention on Consular Relations] violates a local or State law he is immune
from prosecution if the actions which violated the laws were performed by him in the
exercise of his consular functions.
The court considered that in supplying the passport Ström had indeed performed
an act in the exercise of his consular functions.
However, while the violation of the national law of the receiving state does not
exclude the official character of an act per se, a violation that cannot be explained
by the discretion of a foreign state in the exercise of a conspicuous consular activ-
ity is not likely to be accepted as an official act. A coherent distinction for example
can be made between the acts at issue in the Rissmann and Ström cases and the
German Tabatabai case where it was held that ‘the importation of narcotic sub-
stances . . . which occurred without the authorization of the receiving State is not
to be classified as one of the official functions of a special envoy’.⁵⁴
Moreover, several cases indicate that the accepted functions of consular officers
may be considered circumscribed by normative limits. The US case Gerritsen v
De La Madrid relied heavily on the definition of consular functions provided in
article 5 of the VCCR.⁵⁵ The case concerned a civil suit against several Mexican
consular officers on allegations of having unlawfully impeded a protest against
the Mexican President near the Consulate in Los Angeles. The allegations
included striking with a heavy metal object, threatening with a club and gun,
kidnapping and interrogating the protester, forcibly taking his leaflets and cam-
era. The officers’ claim that the alleged acts qualified as official acts for which they
enjoyed immunity was rejected. The court considered that the consular functions
at issue in the case were explicitly circumscribed by normative limits in article 5
VCCR. Subcategory a and m of this article provide that consular functions con-
sist of ‘protecting in the receiving State the interests of the sending State and
its nationals . . . , within the limits permitted by international law’ and ‘perform-
ing any other functions entrusted to a consular post by the sending State which
state decides subject to diplomatic intercourse by the sending state whether the act was done in the
performance of . . . [official] functions.’
⁵³ State of Indiana v Ström (US, Court of Lake County, Criminal Division, 1988) reported
in LT Lee(1991) 501. Cf also Risk v Halvorsen and Others 98 ILR 125 (US, Ct of Apps (9th Cir),
1991)—a civil case comparable on the facts to the Rissmann case; R v Bonadie (Canada, Ontario
Court of Justice, 1996) discussed in EG Lee et al, ‘Consular Immunity, Alleged Criminal Activity
of a Consular Officer’ (1996) 34 Canadian Yearbook of International Law 293.
⁵⁴ Tabatabai 80 ILR 389 (Germany, Provincial Court, 1983).
⁵⁵ Gerritsen v De La Madrid 101 ILR 478 (US, Ct of Apps (9th Cir), 1987).
are not prohibited by the laws and regulations of the receiving State’. The court
concluded that since the suppressing of the freedom of speech on political mat-
ters violates international law, and assault with a deadly weapon and kidnapping
violate US penal laws, the alleged acts could not have been performed in the exer-
cise of consular functions.⁵⁶
In a similar vein, the Swiss government relied on the definition of the func-
tions in the Vienna Convention on Diplomatic Relations to support its argument
that acts of espionage could not be covered by the functional immunity of former
diplomats laid down in article 39.2. Article 3.1(d) provides that it is the function
of a diplomatic mission to ‘ascertain [ . . . ] by all lawful means conditions and
developments in the receiving State, and report [ . . . ] thereon to the Government
of the sending State.’ The Swiss government argued that hence ‘l’obtention de
renseignements par des voies illégales, soit l’espionnage, ne fait pas partie des
fonctions de la mission.’⁵⁷
Arguably, the rules of international law limit the scope of consular functions
in general. It is in this regard interesting to note that the normative limit relied
on in Gerritsen recalls the limits formulated in Letelier v Chile and Liu v China
on the discretionary function exception to the territorial tort exception of the
FSIA.⁵⁸ The FSIA provides that although foreign states are not immune in regard
to territorial tort claims, immunity is available if a claim is based on the exercise
or performance—or the failure to exercise or perform—a discretionary function
of the foreign state. In this regard the courts inquire in the first place whether
the government employee that performed the act had any discretion to act or if
there was an element of choice as to appropriate conduct, and second whether the
decisions were grounded in social, economical, and political policy.⁵⁹ In Letelier v
Chile the court held that ‘[w]hatever policy options may exist for a foreign coun-
try, it has no ‘discretion’ to perpetrate conduct designed to result in the assassin-
ation of an individual or individuals, action that is clearly contrary to the precepts
of humanity as recognized in both national and international law.’⁶⁰ Since the
protection of discretionary function in the FSIA is similar to the protection of
discretion in the exercise of consular functions, a similar argument may be for-
mulated as regards consular immunity.⁶¹ While violations of the type at issue
in Letelier are obviously not taken within the context of the exercise of consu-
lar functions, the same is not true, for example, for the issuance of visa on the
⁵⁶ ibid 481–2.
⁵⁷ Avis de droit de la Direction du droit international public du Département politique fédéral
(1979), (1980) 36 ASDI 210, 211. Cf this to an earlier opinion to the opposite effect published in
(1964) 21 ASDI 171.
⁵⁸ Letelier v Chile (US, 1980); Helen Liu v The Republic of China 892 F 2d 1419 (US, Ct of Apps
(9th Cir), 1989). Cf ch 2 § 3.2.1 above.
⁵⁹ Cf Risk v Halvorsen (US, 1991).
⁶⁰ Letelier v Chile (US, 1980) 673.
⁶¹ Cf Risk v Halvorsen where both questions were treated in one case and in similar vein.
basis of discriminatory criteria. This intricate question will be further discussed
in chapter 6 of this study.
As stated above, if the act of a foreign state official on the territory of the for-
eign state is not performed within the exercise of consular—or diplomatic—
functions this does not automatically mean that the rule of functional immunity
does not apply to the facts of the case. Many cases against consular officers are in
fact decided on the basis of the rule of functional rather than consular immun-
ity. The case against the former Ottoman Ambassador in Brussels who was sued
for the payment of the costs of a new heating system installed at the Embassy
was noted earlier in this chapter. The court dismissed the claim arguing that the
materials had been ordered on behalf of the Ottoman government and were only
of profit to that government. The former Ambassador could not be held person-
ally accountable for the unpaid bill.⁶² This type of reasoning is also often applied
to incumbent consular officers that contract on behalf of their home state.⁶³
Consular officers contracting on behalf of the state are in this respect not treated
differently from other foreign state officials doing so. When the commanding
officer of the US Rest and Recuperation Office in Sydney was sued in regard of a
contract he signed on the provision of a civilian clothing hire service for members
of the US Forces that come to Sydney for rest and recuperation, the Australian
court noted that ‘[i]t is clear beyond all argument that Major Boyd did not con-
tract in a personal capacity when he signed the [contract].’⁶⁴ It emphasized that
‘what was done through or in name of the United States R. & R. Office was done
for the purposes of the foreign state itself’.⁶⁵
Also outside the field of contracts is the non-personal involvement of foreign
state officials acting within the territory of the forum state regularly recognized.
When a claim requires a state official to perform an act—or refrain from perform-
ing an act—in his public capacity the non-personal involvement is evident.⁶⁶ In
personal tort claims this may be so if the acts complained of are clearly performed
on behalf of the home state. The facts of the Philippine case of Sanders et al v
Veridiano et al were set out above. US officials had complained that correspond-
ence of their superiors concerning their dismissal was libellous. The Supreme
Court concluded that ‘[g]iven the official character of the above-described letters,
we have to conclude that the petitioners were, legally speaking, being sued as officers
of the United States government. As they have acted on behalf of that government,
⁶² Monnaie v Caratheodorou Eff endi (Belgium, 1903). Cf also Lord McNair (1956) i 192, dis-
cussing a 1823 opinion of the UK Law Officers of the Crown on the non-personal responsibility of
the Spanish ambassador in London for contracts passed for the Spanish government.
⁶³ Landley v Republic of Panama 9 AD 441, case no 175 (US, DC for the Southern District of
New York, 1940).
⁶⁴ Grunfeld and Another v United States of America and Others 52 ILR 332 (Australia, New
South Wales, S Ct, Sydney, 1968) 334.
⁶⁵ ibid 335. Cf also Syquia et al v Lopez et al 18 ILR 228 (Philippines, S Ct, 1949).
⁶⁶ Cf Johnson v Major-General Howard M. Turner et al 21 ILR 103 (Philippines, S Ct, 1954);
Baer v Tizon (Philippines, 1974) available at <http://www.lawphil.net/judjuris/judjuris.html>.
and within the scope of their authority, it is that government, and not the petition-
ers personally, that is responsible for their acts.’⁶⁷ United States v Ceballos regarded
a claim against state officials working for the Office of Special Investigations of
the US Air Force stationed in the Philippines.⁶⁸ During a buy-bust operation the
officials had arrested a Philippine national employed as a barracks boy at the Air
Base on suspicion of a drugs-related offence. When a charge was filed against him
on the basis of the testimonies of these officials he was dismissed from his job. He
commenced proceedings for damages against the individual state officials. The
Philippine Supreme Court noted that the officials were charged with the function
of preventing the distribution, possession and use of prohibited drugs and pros-
ecuting violations of the relevant rules. The court argued that it could therefore
‘not for a moment be imagined that they were acting in their private or unofficial
capacity when they apprehended and later testified against the complainant.’⁶⁹ In
sum, when foreign state officials have clearly acted as the arm or mouthpiece of
their home state the rule of functional immunity applies to them regardless of the
place where the act is performed.⁷⁰
The forum state however may apply its national law standard to ascertain
whether foreign state officials acting within its territory—diplomatic agents and
consular officers excluded—have in fact acted as arm or mouthpiece. At the same
time as United States v Ceballos the Philippine Supreme Court decided United
States v Alarcon Vergara.⁷¹ A number of Philippine nationals had filed a com-
plaint for damages for injuries allegedly sustained as a result of the arrest (for
theft) performed by US state officials. The parties gave conflicting accounts of
the events. The arrested individuals claimed that the officials had used excessive
violence arresting them and that they had been seriously injured by the bites of
dogs that had been unleashed upon them by the officials. The officials disputed
that the arrest was irregular. They argued that while the dogs had indeed bitten
the detainees when these resisted the arrest, they had called off the dogs and med-
ical care had been provided immediately. The court considered that on the facts
before it, it could not come to the same conclusion as in United States v Ceballos.
⁶⁷ Sanders v Veridiano (Philippines, 1988).

⁶⁸ United States v Ceballos (Philippines, 1990) 143.
⁶⁹ ibid 143–4. Cf also Capitaine Saabrok v la Société maritime auxiliare de transports (1922–23)
18 RDIP 743 (France, Cour d’appel de Rennes, 1919); Lakhowsky v Gouvernement fédéral suisse et
de Reynier (colonel) (1921) 48 JDI 179 (France, Cour de Paris, 1921) 181.
⁷⁰ Cf however Advokaat v Schuddinck and the Belgian State 2 AD 133, case no 68 (The
Netherlands, DC of Dordrecht, 1923) 133–4; Saorstat and Continental Steamship Company, Ltd.
v Rafael de las Morenas 12 AD 97, case no 25 (Ireland, S Ct, 1944) 99. Cf also Polish Officials in
Danzig Case 6 AD 130, case no 64 (Danzig, High Court, 1932). The bearing of this latter case on
the rule of functional immunity is however dubious, cf P De Sena, Diritto internazionale e immu-
nità funzionale degli organi statali (1996) 196.
⁷¹ United States v Alarcon Vergara (Philippines, S Ct, 1990) consolidated case under United
States of America and Others v Guinto, Valencia and Others, United States of America and Others v
Ceballos and Bautista, United States of America, Lamachia and Others v Rodrigo and Genove
(Philippines, 1990).
It stated that ‘[t]he contradictory factual allegations in this case deserve . . . a
closer study of what actually happened to the plaintiffs. The record is too meagre
to indicate if the defendants were really discharging their official duties or had
actually exceeded their authority when the incidence in question occurred.’⁷² It
concluded that further inquiry was required in order to determine the capacity in
which the officials were acting at the time of the incident.
In Wylie v Rarang the Philippine Supreme Court made clear that the stand-
ard applicable to Philippine state officials in order to determinate the capacity in
which an act is committed is equally applicable to foreign state officials.⁷³ A US
state official claimed that an article published in a daily bulletin published by
the US Naval Base station (in the Philippines) constituted false, injurious and
malicious defamation tending to impeach her honesty, virtue and reputation and
exposing her to public hatred, contempt and ridicule. She sued the person respon-
sible for publication of the bulletin and the commanding officer of the Base—who
had approved the publication—in their personal capacities for alleged tortious
acts in publishing a libellous article. The defendants of course argued that the
publication was made in the performance of their official functions. The court
summarized the issue in dispute as the question whether ‘American naval officers
who commit a crime or tortious act while discharging official functions [are] still
covered by the principle of state immunity from suit’. The court did not think so.
In a rather emotional vein it stated that ‘[k]illing a person in cold blood on patrol
duty, running over a child while driving with reckless imprudence on an official
trip, or slandering a person during office hours could not possibly be covered by
the immunity agreement. Our laws and, we presume, those of the United States
do not allow the commission of crimes in the name of official duty.’⁷⁴ The sued
officials were held liable for damages in their personal capacities.
This approach was confirmed in United States of America v Reyes.⁷⁵ One US
state official employed at the Joint United States Military Assistance Group
based in the Philippines claimed that another official had had her subjected to
an oppressive and discriminatory search on her body, bags and car in excess of
authority. The United States intervened in the proceedings and objected the exer-
cise of jurisdiction of the Philippine courts. In particular it argued that ‘even if
the . . . act were ultra vires [the defendant] would still be immune from suit for the
rule that public officers or employees may be sued in their personal capacity for
ultra vires and tortious acts is “domestic law” and not applicable in International
Law’. It claimed that ‘the application of the immunity doctrine does not turn
⁷² ibid 145.
⁷³ Wylie v Rarang (Philippines, 1992).
⁷⁴ ibid. The court refers to a case concerning a Philippine state officials: Chavez v Sandiganbayan
(Philippines, 1991). Cf also Liang v The Philippines (Philippines, S Ct, January 2000) available at
<http://www.lawphil.net/judjuris/judjuris.html> for the same approach in a case against an official
of an international organization.
⁷⁵ United States of America v Reyes (Phillipines, 1993).
upon the lawlessness of the act or omission attributable to the foreign national for
if this were the case, the concept of immunity would be meaningless as inquiry
into the lawlessness or illegality of the act or omission would first have to be made
before considering the question of immunity; in other words, immunity will lie
only if such act or omission is found to be lawful’.⁷⁶ The court however, held on
to its domestic law standard. It argued in relevant part: ‘The cloak of protection
afforded the officers and agents of the government is removed the moment they
are sued in their individual capacity. The situation usually arises where the public
official acts without authority or in excess of the powers vested in him. It is a well-
settled principle of law that a public official may be liable in his personal capacity
for whatever damage he may have caused by his acts done with malice and in bad
faith, or beyond the scope of his authority or jurisdiction.’⁷⁷
Foreign state officials not acting within the exercise of sovereign authority
under international law incur personal responsibility for the commission of such
crimes even if committed under government orders. The Staschynskij case is a con-
spicuous example.⁷⁸ In 1959 the KGB agent Staschynskij killed two political
exiles in Munich (Germany). He was prosecuted and convicted for murder by the
German Bundesgerichtshof. The court explicitly acknowledged that Staschynskij
had acted on orders of his superiors, stating even that the murders had been
ordered by the highest echelons in the Soviet government.⁷⁹ The court considered
in relevant part:
Diese besonderen Umstände staatlich befohlener Verbrechen befreien die Tatbeteiligten
keineswegs von der strafrechtlichen Schuld. Jede staatliche Gemeinshaft darf und muß
verlangen daß such jedermann von Verbrechen, auch von unter Mißbrauch staatlicher
Befugnisse geforderten, bedingungslos fernhält. Andernfalls wäre jede Ordnung aufgelöst
und den politischen Verbrechen das Tor geöffnet. Der innere Grund des Schuldvorwurfs
liegt darin, daß der Mensch auf freie, verantwortliche, sittliche Selbstbestimmung ange-
legt und deshalb befähigt ist, sich für das Recht und gegen das Unrecht zu entscheiden,
sein Verhalten nach den Normen des rechtlichen Sollens einzurichten und das rechtlich
Verbotene zu vermeiden . . .⁸⁰
⁷⁶ ibid.
⁷⁷ ibid.
⁷⁸ The Staschynskij Case 18 Entscheidungen des Bundesgerichtshof in Strafsachen 87
(Federal Republic of Germany, Bundesgerichtshof, 1962).
⁷⁹ ibid 88–9.
⁸⁰ ibid 94. Cf for similar cases the 2004 decision of the Court of Appeal of Qatar jailing two
Russian agents for the murder of a former Chechen leader in Qatar. The trial judge explicitly
stated that the men had acted on orders of the Russian government; the decision of the German
Bundesgerichtshof in 2004 confirming the decisions of the Berlin landsgericht, the Leipzig
Bundesrichter convicting former Libyan agents for a bomb attack at the nightclub La Belle in
Berlin by the Libyan secret services in 1986; The 2004 decision of the Argentinean Supreme Court
(24–08–2004, case A.533.XXXVIII) confirming an earlier decision of a Buenos Aires trial court
(20–11–2000) convicting the former Chilean secret agent Enrique Arancibia Clavel to life in prison
for the murder of Chile’s former Commander-in-Chief of the Army and former Vice President of
the Republic General Prats and his wife by a car bomb in Buenos Aires in 1974; in 2005 Italy issued
The famous Rainbow Warrior incident equally concerned secret service officials
committing a crime on the territory of a foreign state. In 1985 two violent explo-
sions took place on board of the Greenpeace ship the Rainbow Warrior. At the
time of the explosions the ship lay in the port of Auckland (New Zealand), from
where it would have left to protest against French nuclear experiments in the
Pacific. A Dutch photographer died in the attack. New Zealand authorities soon
arrested and subsequently convicted two French secret agents to ten years impris-
onment each for complicity in manslaughter and wilful damage to a ship.⁸¹ The
French government fiercely contested their conviction. France emphasized that
the ship had been sunk upon instructions of the French government and that
it was willing to undertake reparations for the consequences of the action. The
diplomatic conflict that evolved, and of which the position of the two agents
was but one aspect, was eventually put to the Secretary-General of the UN in
order to obtain a ruling.⁸² In its memorandum to the Secretary-General, France
requested the release of its agents on the basis that they could not be held person-
ally responsible for the attack on the ship. It wrote:
France is ready to assume, as regards New Zealand and the victims of the incident, all
responsibilities, incumbent upon it, in place of the persons having acted on its behalf, as
done, for example, by the British Government in respect of the United States Government
when the vessel ‘Caroline’ was destroyed by a British commando unit . . .⁸³
New Zealand, for its part, noted that the acts of the agents were criminal under
New Zealand law and stressed that it did not accept ‘that military personnel act-
ing under official orders are exempt from personal responsibility for criminal acts.
“Superior orders” is not a defence in New Zealand law, nor is it a defence in the
legal systems of most countries’.⁸⁴
Although the Secretary-General did not discuss the issue of personal respon-
sibility as such, his decision that the agents were to be held in solitary seclusion
within a French military facility on an isolated island outside Europe for at least
three years does not—to put it mildly—support the thesis that no such responsi-
bility arises in respect of acts of this kind.⁸⁵
arrest warrants for 22 alleged CIA agents accused of kidnapping an Islamic cleric in Milan in order
to bring him to Egypt for interrogation, without the consent of the Italian authorities.
⁸¹ The agents concerned were not the principal actors but had provided logistical support for
the operation.
⁸² United Nations Secretary-General, Ruling on the Rainbow Warrior Affair between France
and New Zealand (1986), (1987) 26 ILM 1346ff.
⁸³ ibid 1366.
⁸⁴ ibid 1351 and 1357.
⁸⁵ ibid 1346, and 1369–70. Cf G Apollis, ‘L’affaire du “Rainbow Warrior” ’ (1987) 91 RGDIP
10; J Charpentier, ‘L’affaire du Rainbow Warrior’ (1985) 31 AFDI 210 for support for the appli-
cation of the McLeod principles to the Rainbow Warrior Case. The accord, commented Apollis,
arranged the release of the ‘agents malchanceux . . . a des conditions draconnienes’ (43). It is noted
that a dispute on the accord evolved later, inter alia because the agents were not held on the island
The Rainbow Warrior incident—together with other examples of personal

responsibility for unauthorized acts on foreign territory⁸⁶—is commonly relied
on in doctrine in support of the argument that the principles laid down in the
McLeod case are no longer good law.⁸⁷ This argument is rejected here. The facts
of the two incidents are indeed deceivingly similar. Both concerned the violent
destruction of a vessel on the territory of a foreign state causing bodily harm and
casualties in the process. It is however important to see that the rule of functional
immunity allows distinction between the two cases. The McLeod case arose in
the context of a dispute between British governed Canada and the United States
on the principles of neutrality. The UK argued that the attack constituted neces-
sary self-defence while the US saw it as foreign power invading their boundary
with an armed force. Under such circumstances the qualification of the act under
national law loses its relevance. States exercise their authority under international
law when they are engaged in boundary disputes or interstate armed conflict.⁸⁸
This rule supersedes the distinction between lawful and unlawful combatants.
Lawful combatants do not incur responsibility under the domestic law of the
adversary state even though acts of warfare would normally qualify as murder,
arson, battery, or destruction of property. That privilege does not befall unlaw-
ful combatants.⁸⁹ Combatants are lawful when they wear distinctive emblems
and wear their arms openly—combatants ‘may try to become invisible in the
landscape, but not in the crowd’⁹⁰—and act furthermore in accordance with the
laws and principles of war. The distinction applies irregardless of the ques-
tion whether or not the combatants are part of the regular armed forces of a
for the agreed period, cf G Palmisano, ‘Sulla Decisione Arbitrale Relativa alla Seconda Fase del
Caso “Rainbow Warrior” ’ (1990) 73 RDI 874.
⁸⁶ Cf in addition to political murders as in the Staschynskij case also the practice of aerial
intrusions discussed in OJ Lissitzyn, ‘The Treatment of Aerial Intruders in Recent Practice and
International Law’ (1953) 47 AJIL 559, 565, fn 30; M Bothe, ‘Die strafrechtliche Immunität frem-
der Staatsorgane’ (1971) 31 ZaöRV 246.
⁸⁷ See eg L Migliorino, ‘Giurisdizione dello Stato territoriale rispetto ad azione non autorizzate
di agenti di Stati stranieri’ (1988) 71 RDI 784, 796. Cf before the Rainbow Warrior case already
M Miele, L’ immunità giurisdizionale degli organi stranieri (2nd edn, 1961) 191.
⁸⁸ The principle of non-personal responsibility was arguably stated in overbroad terms. It is
recalled that the UK Law Officers asserted that ‘an individual doing a hostile act authorised and
ratified by the government of which he is a member cannot be held individually answerable as a pri-
vate trespasser or Malefactor, but that the act becomes one for which the State to which he belongs
is in such case alone responsible’. Here it is argued that this principle is limited to acts performed in
the context of the exercise of state authority under international law.
⁸⁹ A Rosas, The Legal Status of Prisoners of War: A Study in International Humanitarian Law
Applicable in Armed Conflict (1976) 305; C Rousseau, Le droit des conflits armés (1983) 63;
F Kalshoven, ‘The Position of Guerrilla Fighters under the Law of War’ (1972) 11 Revue de Droit
Pénal Militaire et de Droit de la Guerre 73ff ; RR Baxter, ‘So-Called “Unprivileged Belligerency”:
Spies, Guerrillas and Saboteurs’ (1951) 28 BYIL 323.
⁹⁰ D Binschedler-Robert, ‘A Reconsideration of the Law of Armed Conflicts’ in The Law of
Armed Conflicts: Report of the Conference on Contemporary Problems of the Law of Armed Conflict,
1969 (1971) 1, 43.
foreign state acting under government orders.⁹¹ However, the rule of functional
immunity does apply to unlawful combatants in uniform whose acts form part of
the military activities. The activity of spies and saboteurs is not regulated under
the laws and principles of war and their fate is similar to that of foreign secret
agents committing crimes outside the context of armed conflict—like in the
Staschynskij and Rainbow Warrior cases. The US Supreme Court rightly stated in
Ex parte Quirin:
[T]hose who during time of war pass surreptitiously from enemy territory into our
own, discarding their uniforms upon entry, for the commission of hostile acts involving
destruction of life or property, have the status of unlawful combatants punishable as such
by the military commission.
...
entry upon our territory in time of war by enemy belligerents, including those acting
under the direction of the armed forces of the enemy, for the purpose of destroying prop-
erty used in prosecuting the war, is a hostile and warlike act. It subjects those who par-
ticipate in it without uniform to the punishment prescribed by the law of war or unlawful
belligerents.⁹²
The same is true for unlawful combatants that have violated the laws of war while
pursuing their private impulses. War crimes committed by the regular armed
forces committed as part of the military strategy of the state are however subject
to a different regime. The conviction of McLeod for murder and arson ignored
the exclusive applicability of international law to the facts of the case as well as
the non-personal responsibility of state officials for acts within the context of the
exercise of state authority under international law.
The attack on the Rainbow Warrior did of course violate the territorial sover-
eignty of New Zealand and hence the Charter of the United Nations and inter-
national law in general. The qualification of the act under international law did
not however supersede the applicability of national law to the incident. In other
words, as long as national law is applicable to the facts of the case—and the state
official was not exercising exclusive competences with the consent of the forum
state—it cannot be said that the state official has acted within the context of the
exercise of state authority under international law.⁹³
The proposed distinction admittedly entails a slippery slope. The line is the
same as the line between the territorial tort exception and the vertical division of
⁹¹ Y Dinstein, ‘Unlawful Combatants and War Criminals’ in Y Dinstein and M Tabory (eds),
International Law at a Time of Perplexity, Essays in Honour of Shabtai Rosenne (1989) 103, 105.
⁹² Ex p Quirin 317 US 1 (US, S Ct, 1942) 35–6 and 37. Cf also Mohamed Ali v Public Prosecutor
[1969] AC 430 (Privy Council, 1968) in which members of the Indonesian armed forces were con-
victed of murder committed in Singapore (then part of Malaysia) in civilian clothes.
⁹³ The idea that for example the Staschynskij case regarded the exercise of jurisdiction over sover-
eign activity is therefore rejected in this study. Cf M Bothe, ‘Die strafrechtliche Immunität fremder
Staatsorgane’ (1971) 31 ZaöRV 246; I Seidl-Hohenveldern, ‘Immunität ausländischer Staaten in
Strafverfahren und Verwaltungsstrafverfahren’ in H Conrad, et al (eds), Gedächtnisschrift Hans
Peters (1967) 915, 922 for this argument.
competences discussed in chapter 2 § 3.2.2 of this study. The examples of hard

cases discussed there equally trouble the application of this aspect of the rule of
functional immunity. We will see moreover in chapter 5 of this study that the
experience of the two World Wars led states to formulate limits on the rule of
functional immunity.
It has at times been argued that the rule of functional immunity does not apply
when state officials purport to exercise state authority within the territory of a
foreign state without the required authorization.⁹⁴ This finding however needs
specification. The basic principle is indeed that states may not exercise sovereign
authority on the territory of another state without that state’s consent. It seems
obvious that acts that violate this principle do not have to be recognized as offi-
cial acts for functional immunity purposes and that foreign state officials may be
called to account for them in their personal capacity. Van Praag already noted in
1915, that if the consul ‘sort de sa compétence, cet acte (quelle qu’en soit la qualifi-
cation dans le pays qui l’e envoyé) constitue une atteinte à l’autorité de l’Etat où il
réside; dans cet Etat en effet il ne lui est pas permis d’accomplir des actes officiels
qui ne sont pas de sa compétence’.⁹⁵
Whether a foreign state official is effectively called to account depends however
on whether a particular act in fact constitutes a violation of the national law of the
state whose territorial sovereignty has been violated or whether only an interstate
norm has been violated. When the official has committed a common crime under
national criminal law the violation of national law is in principle distinct from the
violation of international law. The Staschynskij and Rainbow Warrior cases are con-
spicuous examples in this regard. State officials are then held accountable in their
personal capacity under the national law of the forum state—unless of course
states agree to absolve the officials from punishment in a political solution of the
dispute. When however the only violation is that of the territorial integrity of
the forum state because of the unauthorized exercise of state authority this is not
the case. The pivotal question then is whether the violation of international law is
also a violation of national law so that the distinct qualifications of the one viola-
tion exist alongside each other. This is not self-evident. The example of Switzerland
that has criminalized all unauthorized exercise of sovereign authority on Swiss
territory stands out. Article 271 paragraph 1 of the Swiss Penal Law provides:
Wer auf schweizerischem Gebiet ohne Bewilligung für einen fremden Staat Handlungen
vornimmt, die einer Behörde oder einem Beamten zukommen, wer solche Handlungen
für eine ausländische Partei oder eine andere Organisation des Auslands vornimmt,
wer solchen Handlungen Vorschub leistet, wird mit Gefängnis, in schweren Fällen mit
Zuchthaus bestraft.⁹⁶
⁹⁴ Cf M Miele (1961); L Migliorino (1988).

⁹⁵ L Van Praag, Juridiction et droit international public, La juridiction nationale d’après droit
international public coutumier en temps de paix (1915) 328.
⁹⁶ The prohibition was first included in the Swiss Penal Law in 1935, (1935) 51 Amtliche
Sammlung 482. Cf J Outry, Verletzung der Schweizerischen Gebietshoheit durch verbotene
Handlungen für einen fremden Staat (1951).
If only interstate norms have been violated the individual state officials may not
be punished for their behaviour. In this context states necessarily exercise author-
ity under international law.⁹⁷
It is moreover interesting to note that in the Staschynskij case the court did
not explicitly state that it did not recognize the cloak of foreign state authority
for unauthorized acts on its territory. The issue of individual responsibility was
approached in an abstract manner. The fact that the orders had been given by a
foreign state seemed irrelevant. The individual responsibility of Staschynskij was
approached as a question as to the possible scope of the cloak of state authority in
general.⁹⁸ The argument that state officials of the forum state would not be able
to hide behind the protective shield of their mandate in similar circumstances
was relied on both in the Staschynskij case and in the Rainbow Warrior case. The
national law standard seemed at least an additional argument on which to base
the absence of functional immunity also in these cases. It could even be argued
that the unauthorized exercise as such is not a sufficient criterion and that the
national law standard applies to cases concerning foreign state officials that do
and that do not violate the territorial sovereignty of the forum state alike.
In sum, foreign state officials that commit crimes or personal torts within the
territory of the forum state are likely to be held responsible in their individual
capacity. If state officials act outside the context of the exercise of state author-
ity under international law the (national) ultra vires standard may be applied
to determine the capacity in which an act was performed. The argument of the
United States in United States of America v Reyes is not convincing. The standard
applied does not affect the law of state immunity: a comparison to the US legal
system itself, where violation of the US constitution exposes US state officials to
individual responsibility, is enlightening in this respect.
2.2.1.4 Defeat of presumption

The rule of functional immunity explicitly regards a presumption of authority.
This presumption may be defeated by the home state. Two types of defeat are
feasible. In the first place, states may declare that in a specific case, a specific
state official has acted without authority (an a posteriori—ad hoc defeat). Second,
states may agree—in the form of a rule of international law—that certain activity
may never be cloaked by the authority of a state (an a priori—general defeat). In
both cases the act is not ‘in law an act of the state rather than of the official that
⁹⁷ The argument of M Bothe (1971) 260–1 that functional immunity is only not available when
a serious violation of the territorial sovereignty is at issue confuses practice with principle. Trivial
violations will often not violate the national law of the territorial state or be solved at the diplomatic
level.
⁹⁸ Interestingly enough Staschynskij was not convicted as ‘perpetrator’ (Tater) but as ‘accom-
plice’ (Tatgehilfe). The fact that he acted under orders of the Soviet government and in particular
under their pressure and with fear of reprisals if he failed to obey, was considered ground to miti-
gate the punishment, The Staschynskij Case (Federal Republic of Germany, 1962) 94–6.
happened to perform the act’. Accordingly, the act is not official in character and
the state official incurs responsibility in his personal capacity.
A Posteriori–Ad Hoc A home state may of course declare that despite the osten-
sible exercise of authority, its official did in fact exceed his authority performing
a certain act. Such a declaration defeats the presumption of authority that may
attach to that act.⁹⁹ The 1997 case of Phaneuf v Government of Indonesia and
Mawardi and the 2004 case of Velasco v Government of Indonesia and Mawardi,
for example, concerned a selling of false promissory notes by an Indonesian
state official allegedly in name of the National Defense Security Council of the
Republic of Indonesia.¹⁰⁰ When the notes were traded for promissory notes issued
by a Syria based financier defendant Mawardi—then Indonesia’s ambassador to
Syria—took part in the signing ceremony and allegedly confirmed the authority
of the Indonesian state official, as well as the governmental nature of the prom-
issory notes. The notes were later discovered to be worthless and an action was
brought to enforce payment on the notes against Indonesia and Mawardi. The
court in the Phaneuf case did not know whether Mawardi had acted within the
scope of his authority but stressed that if he had acted without authority the FSIA
does not shield him from suit in his individual capacity. The court in the Velasco
case had a statement of the Indonesian government at its disposal in which it
was confirmed that Mawardi had acted without authority. Accordingly, the court
concluded that the FSIA did not protect Mawardi from suit. However, since the
ambassador had been sued in his official capacity rather than in his individual
capacity the claim against him was to be dismissed.
The defeat of the presumption is technically not ‘a waiver of immunity’.
Waiver of immunity for real official acts is not possible.¹⁰¹ The use of the term
in practice may be apposite when the person concerned also relies on personal
immunity rules. For example, when the former president of the Philippines and
his wife were sued in the US courts on embezzlement claims the Aquino govern-
ment wrote in a diplomatic note that ‘the Government of the Philippines hereby
waives any residual sovereign, head of state, or diplomatic immunity that the
former President Ferdinand Marcos and his wife Imelda Marcos may enjoy under
international and U.S. law, including, but not limited to, Article 39(2) of the
Vienna Convention on Diplomatic Relations, by virtue of their former offices in
⁹⁹ The claim must of course be a reasonable one. It is for example unthinkable that the earlier
introduced Ottoman ambassador would incur personal responsibility for the costs of the installa-
tion of the new heating system at the Embassy upon a declaration of the Ottoman Empire that the
signing of contracts for essential maintenance of the Embassy building fell outside the ambassa-
dor’s mandate.
¹⁰⁰ Phaneuf v Government of Indonesia and Mawardi 106 F 3d 302 (US, Ct of Apps (9th Cir),
1997); Velasco v Government of Indonesia and Mawardi 370 F 3d 392 (US, Ct of Apps (4th Cir),
2004).
¹⁰¹ As far as a personal capacity suit is concerned. A state can of course waive immunity, or in the
terms of ch 2 § 3.3.1 ‘accept jurisdiction’, when the state itself is the defendant.
the Government of the Philippines’.¹⁰² While the term waiver was an adequate
response to Marcos’ reliance on the US head of state immunity rules, the use of
the term in regard to article 39.2 VCDR immunity is unfortunate.
A Priori–General The rule that the acts of foreign state officials in the ostensible
exercise of state authority are presumed to have been performed under actual
state authority may be limited in its scope by a general and consistent state prac-
tice accepted as law. In other words, states may agree on the international level
that certain acts can never be cloaked by state authority. Just as normative limits
on the authority of state officials are provided within most national legal sys-
tems, states may develop universally applicable normative limits. In a parallel
with, for example, the 11th Amendment jurisprudence in the United States, it
could accordingly be agreed that state officials may never be authorized to violate
‘constitutional norms’ of the international legal system.¹⁰³ The acceptance of uni-
versal limits curbs the influence of the rule of state immunity on the application
of the rule of functional immunity. It will be argued in chapter 5 of this study
that the development of the principle of individual responsibility in the wake of
second World War can be understood from this particular perspective.
2.2.1.5 Conclusion and final observations

Foreign state officials enjoy functional immunity in respect of official acts.
Official acts are acts that cannot be attributed to the person of the state official.
These acts are in law the acts of the state. Accordingly, (former) foreign state offi-
cials do not bear responsibility in their private or personal capacity for official acts
performed on behalf of and under authority of their home state. This principle
forms the pivot of the international law rule of functional immunity. In national
legal systems the principle is usually circumscribed by normative limits on the
scope of authority of state officials. In international law, the principle is comple-
mented by the rule that as long as the acts are performed within the context of
the exercise of state authority under international law, ostensible authority passes
for actual authority. The home state may defeat—a posteriori or a priori—the pre-
sumption of authority attaching to the actions of its officials.
The rule of functional immunity is at times defined in terms of the official cap-
acity in which the state official has acted. The official capacity in this definition
¹⁰² In re Mr And Mrs Doe, Witnesses Before the Grand Jury 860 F 2d 40 (US, Ct of Apps
(2nd Cir), 1988) 43. The term is likewise used by courts: In re Grand Jury Proceedings, John Doe
No 700 817 F 2d 1108 (US, Ct of Apps (4th Cir), 1987); In re Mr And Mrs Doe, Witnesses Before the
Grand Jury (US, 1988); Paul v Avril 812 F Supp 207 (US, DC for the Southern District of Florida,
1993) 210; Marcos and Associates v Chambre d’Accusation Geneva 82 ILR 53 (Switzerland, Federal
Tribunal, 1987).
¹⁰³ Ex p Young 323 US 670 (US, S Ct, 1944). Cf for a similar argument J Fitzpatrick, ‘The Claim
to Foreign Sovereign Immunity by Individuals Sued for International Human Rights’ (1994) 15
Whittier Law Review 465, 469; T Lininger, ‘Overcoming Immunity Defenses to Human Rights
Suits in U.S. Courts’ (1994) 7 Harvard Human Rights Journal 177, 186.
however is often approached as a factual rather than legal concept. Official cap-
acity is then linked to the concept of attribution of acts to the state under the law
of state responsibility. Official acts are contrasted with private acts that the state
official commits in a purely private capacity. The gardener killed in a fit of rage
is the textbook example of this latter category of acts. This approach however
does not incorporate the territorial limits on the exercise of exclusive state com-
petence, nor the possibility of the acceptance as international law of normative
limits on the authority of state officials. It was explained above that the concept
of ‘ostensible authority’ should be understood from the perspective of the exer-
cise of state authority under international law. Moreover, the concept may be
circumscribed by rules of international law. Not all acts that can be attributed to
the state are hence official acts, and private acts are not merely ‘frolics of the indi-
vidual’s own’.¹⁰⁴
Although a legal approach to the term is possible the danger of confusion with
the factual approach looms large. In addition to the law of state responsibility, the
factual approach is for example commonly used in the definition of offences or
torts that are necessarily committed in an official capacity.¹⁰⁵ It is therefore better
to avoid the terminology altogether and to say that functional immunity applies
when acts have been committed as state official instead of in the capacity of state
official. Or even better, that the rule of functional immunity is not concerned
with the capacity in which an act is committed but rather with the capacity in
which an official may be sued.¹⁰⁶
Functional immunity applies ratione materiae rather than ratione personae.
While an immunity ratione personae like diplomatic immunity constitutes a clas-
sic immunity from jurisdiction, functional immunity constitutes an exemption
from the law in a personal capacity. The term ‘immunity’ may in fact not be the
most apposite to describe the phenomenon at hand. Beckett wrote in this regard
that if proceedings were brought against a former foreign head of state in respect
of official acts ‘he has a defence to the action (i.e. that he is not personally liable
for such acts) but not a claim to immunity.’¹⁰⁷
The distinction between non-responsibility for official acts and an exemption
from jurisdiction has been most elaborately discussed in the context of the law
of diplomatic immunity. Dinstein, for one, fiercely rejected the distinction. He
pointed out that the concept of non-liability entails immunity from the law of the
¹⁰⁴ Cf for this term CA Whomersley, ‘Some Reflections on the Immunity of Individuals for
Official Acts’ (1992) 41 ICLQ 848, 856.
¹⁰⁵ Cf art 1 of the Convention Against Torture and Other Cruel, Inhuman and Degrading
Treatment (1984) 1465 UNTS 85, reprinted in (1984) 23 ILM 1027.
¹⁰⁶ Cf Hafer v Melo (US, 1991) for similar reasoning applied in a case concerning the internal
immunity of US state officials.
¹⁰⁷ E Lémonon (Rapporteur Institut de Droit International) L’immunité de juridiction et
d’exécution forcée des Etats étrangers, Rapport et projet de Résolution définitifs, Observations
E Beckett, (1952) 44–I AIDI 5, 60.
receiving state.¹⁰⁸ This, he argued, does not correspond with the legal position
of diplomatic agents. For one, the sending state may decide to waive the immun-
ity of its (former) diplomatic agent. ‘Waiver of diplomatic immunity ratione per-
sonae’, he wrote, ‘will be entirely meaningless unless local courts are able, as a
consequence, to try the case of the diplomatic offender. And evidently trial is pos-
sible only on the assumption that a crime has been committed.’¹⁰⁹ In support of
his qualification of non-liability for official acts as a misguided concept Dinstein
relied on two famous UK cases. He recalled that Lord Hewart CJ considered in
Dickinson v Del Solar that ‘[d]iplomatic agents are not, in virtue of their privileges
as such, immune from legal liability for any wrongful acts . . . Diplomatic privil-
ege does not import immunity from legal liability, but only exemption from local
jurisdiction.’¹¹⁰ This was reaffirmed in Empson v Smith where Lord Diplock LJ
commented that ‘[i]t is elementary law that diplomatic immunity is not immun-
ity from legal liability but immunity from suit.’¹¹¹ Dinstein finally relied on
article 41.1 of the Vienna Convention that underlines the duty of the persons
enjoying privileges and immunities under the Convention to respect the laws and
regulations of the receiving state.¹¹²
This criticism is not convincing. In brief rebuttal the ideas developed above
may benefit from a final polish. With respect to article 41.1 it should be noted that
a distinct difference exists between the duty of the diplomatic agent to respect the
local laws and regulations when exercising his official functions on foreign terri-
tory and the possibility to hold him personally—hence not in his capacity as state
official—responsible for the acts thus performed. Article 41.1 is perfectly com-
patible with a distinction between official and non-official acts: when an agent
performs official acts he is under a duty to respect the local laws and regulations
as official acting on behalf of the foreign state and can be held responsible for
them in that capacity only.
More pertinently, the assertion that there can be no principle of non-personal
liability for official acts because diplomatic immunity can be waived evinces an
unfortunate failure to distinguish the nature and operation of these two con-
cepts. Dinstein was right in pointing out that during their term of office the func-
tional immunity of diplomatic agents is merely ‘eclipsed by the shadow of the
personal immunity’.¹¹³ As Morelli explained, the rule of diplomatic immunity
is a unitary rule of a procedural nature. It is not limited—as has been argued
in Italian doctrine in particular—to non-official acts.¹¹⁴ This does of course not
¹⁰⁸ Y Dinstein, ‘Diplomatic Immunity from Jurisdiction Ratione Materiae’ (1966) 15 ICLQ
76, 80.
¹⁰⁹ ibid.
¹¹⁰ Dickinson v Del Solar [1930] 1 KB 376 (UK, King’s Bench Division, 1929) 380; 5 AD 299,
case no 190, 299.
¹¹¹ Empson v Smith [1965] 2 All ER 881 (UK, CA, 1965) 886; 41 ILR 407, 414.
¹¹² Y Dinstein (1966b) 81.
¹¹³ ibid 79.
¹¹⁴ G Morelli (1954) 201–4. Cf for Italian doctrine ch 4 § 2.1.1 below.
mean that the principle of non-personal responsibility for official acts does not
apply but merely that the procedural immunity stops the court from reaching the
issue of functional immunity. Despite the acknowledgement of the existence of
two distinct rules Dinstein failed to limit his plea to a unitary treatment of the
rule of diplomatic immunity. He criticized the concept of non-personal liabil-
ity with arguments derived from the law of state immunity. The statements of
Lords Hewart and Diplock relate to diplomatic immunity. Their authority can-
not be relied upon to dismiss the principle of non-personal liability for official
acts. A waiver of diplomatic immunity does—at least in theory—not preclude
the dismissal of a case on the basis of the concurrent operation of substantive
rules regarding the personal liability of foreign state officials for official acts. As
was explained before, the concept of waiver does not agree with the rule of func-
tional immunity. Of course, a state can waive its own immunity when the claim
against the state official can be qualified as actually impleading the foreign state.
Or, a state can proclaim that the official concerned did not act under its author-
ity or within the limits of his official mandate. This is however not a waiver of
immunity, but a (a posteriori and ad hoc) defeat of the presumption of authority.
Would it have been possible for the Ottoman government to waive the functional
immunity of its former Ambassador in Brussels in regard to a claim for the pay-
ment of the costs of the new heating system installed at the Embassy? It may be
clear that it was not. The waiver of the substantive immunity from personal liabil-
ity for acts performed as an arm or mouthpiece of a foreign state is conceptually
inconceivable.
2.2.2 The Application of the Law of State Immunity

as a Consequence of the Implication of the State
The application of the law of state immunity in cases against foreign state officials
can be explained from the perspective of the rule of functional immunity. In 1925
a French court considered that ‘la règle de l’indépendance réciproque des Etats
doit s’appliquer non seulement aux demandes dirigées contre le Gouvernement
lui-même, mais encore à celle introduites contre les agents, ou cocontractants de
ce Gouvernement à raison des actes qu’ils accomplissent en cette qualité, ou en
vertu des ordres dudit Etat’.¹¹⁵ If an individual has acted as an agent of a foreign
state a claim in respect of such act is in fact a claim against that foreign state. Or
as the Philippine Supreme Court formulated it in Syquia v López, when a foreign
state official defendant has acted within the scope of his official duties as agent of a
foreign state ‘the real party defendant in interest is the government of [that state]’
¹¹⁵ Esnault-Pelterie v The AV Roe Cy Ltd (France, 1925). Cf Bernet et autres v Herran, Dreyfus-
Scheyer et autres (France, 1880).
and ‘the . . . action must be considered as one against [that] government’.¹¹⁶ In a
similar vein the US court in Lyders v Lund considered that ‘[i]n actions against
the officials of a foreign state not clothed with diplomatic immunity, it can be
said that suits based upon official, authorized acts, performed within the scope
of their duties on behalf of the foreign state, and for which the state will have to
respond directly or indirectly in the event of a judgment, are actions against the
foreign state.’¹¹⁷
Although not the nominal defendant, the state is hence often considered the
factual defendant in cases against a foreign state official that does not bear per-
sonal responsibility. If a state official is explicitly sued in his official capacity the
non-personal involvement of the official is already stated in the suit. As a US
court considered in Rios v Marshall ‘insofar as [the foreign official] is sued in his
official capacity as agent of the instrumentality, he is equally protected by prin-
ciples of foreign sovereign immunity’.¹¹⁸ If not, the non-personal responsibility
in respect of the act at issue may be relied on to determine that capacity. When a
state official does not bear responsibility in his personal capacity, the action can
only be directed against the official in his official capacity, and hence against his
home state. In Kline v Kaneko another US court explained that when a foreign
state official is sued for acts performed in ‘the execution of his official duties’ he
‘can be sued only in his official capacity, and the protections of the FSIA are avail-
able to him’.¹¹⁹ Or as the Philippine Supreme Court held in Sanders v Veridiano
‘the petitioners were, legally speaking, being sued as officers of the United States
government’.¹²⁰ Even where a claim has been explicitly directed against a for-
eign state official in a personal capacity, courts may approach a suit as an official
capacity suit—and dismiss the claim on the ground of state immunity—when
they find that the claim regards acts that were taken on behalf of the state.¹²¹ It
stands to reason that when in such suits the act concerned is not covered by the
¹¹⁶ Syquia et al v López et al (Philippines, 1949) 231. Cf Johnson v Major-General Howard M

Turner et al (Philippines, 1954).
¹¹⁷ Lyders v Lund 5 AD 321, case no 211 (US, DC for the Northern District of California, 1929).
Cf Landley v Republic of Panama (US, 1940).
¹¹⁸ Rios v Marshall 530 F Supp 351 (US, DC for the Southern District of New York, 1981) 371.
Cf eg Junquist et al v Sheikh Sultan Bin Khalifa Al Nayhan et al 940 F Supp 312 (US, DC for the
District of Columbia, 1996). The crown prince of Abu Dhabi Sheikh Khalifa was sued in his offi-
cial capacity in respect of acts committed by his son in an individual capacity. The court held the
FSIA to be applicable and concluded that since the acts complained of were personal acts of the son
of the crown prince, not acts of the state, none of the exceptions to immunity applied.
¹¹⁹ Kline and Others v Kaneko and Others 685 F Supp 386 (US, DC for the Southern District of
New York, 1988) 389 (emphasis added); 101 ILR 497. Cf also Capitaine Saabrok v la Société mari-
time auxiliare de transports (France, 1919); Lakhowsky v Gouvernement fédéral suisse et de Reynier
(colonel) (France, 1921) 181.
¹²⁰ Sanders v Veridiano (Philippines, 1988) (emphasis added); cf also 102 ILR 148.
¹²¹ Cf Sanders v Veridiano ibid; El-Fadl v Central Bank of Jordan 75 F 3d 668 (US, Ct of Apps for
the District of Columbia Circuits, 1996).
restrictive rule of state immunity because it is an acta jure gestionis, it is the state,
not the state official personally that is the subject of the ruling of the court.¹²²
Some suits are however personal capacity suits perforce. Penal suits are a con-
spicuous example, but we may also think of suits against a state official after he
has left office, or suits explicitly directed against the personal estate of the state
official. When such a personal capacity suit regards activity for which the defend-
ant does not bear individual responsibility the claim should be declared inad-
missible because instigated against the wrong defendant. As Van Praag already
argued in respect of former foreign state officials: ‘l’action fondée sur une telle
responsabilité est elle pour ce motif non-recevable’.¹²³
Notably, it may be argued that it is not at all possible to sue a state official that
lacks the capacity to represent the state in law, in an official capacity. Only certain
state officials have the capacity to represent the state in law. The application of the
rule of state immunity to, for example, a foreign head of state sued in his official
capacity is uncontroversial. In fact, most codifications of the law of state immun-
ity explicitly include the head of state in his official capacity in the definition of
the state for the purpose of the application of the rule.¹²⁴ Exactly which officials
share this capacity is a controversial question outside the scope of this study.¹²⁵
¹²² Cf Nashashibi v The Consul-General of France in Jerusalem 26 ILR 190 (Jordan, Supreme
Court of Cassation, 1958). When M Akehurst, ‘Jurisdiction in International Law’ (1972–73)
46 BYIL 145, 242 argues that agents of a state cannot claim immunity in respect of acts jure
gestionis he surely proceeds from the assumption that they are sued in their official capacity.
¹²³ L Van Praag (1915) 331.
¹²⁴ See eg UK SIA Section 14 sub (a): ‘references to a State include references to the sovereign
or other head of that State in his public capacity’; Canadian State Immunity Act 1985, Section 2
‘foreign state includes any sovereign or other head of the foreign state or of any political subdivision
of the foreign state while acting as such in a public capacity’; Australia Foreign States Immunities
Act 1985, art 3.3. (b) ‘a reference in this Act to a foreign State includes a reference to the head
of a foreign State, or of a political subdivision of a foreign State, in his or her public capacity’.
See already Art II and III Resolution IDI 1891 ((1892) 11 AIDI 436); Arts 1(a) and 7–12 of the
Harvard Research Draft on the Competence of Courts in Regard to Foreign States, Harvard Law
School, Research in International Law (Reporter PC Jessup) Competence of Courts in Regard to
Foreign States, (1932) 26 AJIL 451, 475 and 476. Cf also O’Hair v Wojtyla 81 ILR 607 (US, DC
for the District of Colombia, 1979) 608; The Republic of the Philippines v Marcos 806 F 2d 344
(US, Ct of Apps (2nd Cir), 1986) 360; Junquist v Nahyan (US, 1996).
¹²⁵ Art 1(b) (iv) of the UN Convention on Jurisdictional Immunities of States and their
Property reads: ‘State means . . . representatives of the State acting in that capacity’. In the ILC
Commentary we read that ‘this category of beneficiaries of State immunity encompasses all the
natural persons who are authorized to represent the state in all its manifestations . . . Thus, sover-
eigns and heads of State in their public capacity would be included under this category . . . Other
representatives include heads of Government, heads of ministerial departments, ambassadors,
heads of mission, diplomatic agents and consular officers, in their representative capacity.’ Report
of the Commission to the General Assembly on the Work of its Forty-third Session, YBILC 1991
ii (part two) 18, § 17. It is however controversial whether diplomatic and consular officers can be
sued in their representative capacity: cf eg J Salmon and S Sucharitkul, ‘Les missions diploma-
tiques entre deux chaises: immunité diplomatique ou immunité d’État?’ (1987) 33 AFDI 163, 167;
Hénon v Egyptian Government and British Admiralty 14 AD 78, case no 28 (Egypt, Civil Tribunal
of the Mixed Courts, 1947); De Decker v Mac Gregor PB 1956–3–5 (Belgium, Tribunal Civil de
Léopoldville, 1955); Dame Mellerio v Consul général du Portugal (1969) 58 RCDIP 533 (France,
Cour de Cassation, 1969). Cf however: Mallavel v Ministre des Aff aires étrangères français 65 ILR
The fact that most codifications are limited to the head of state in this respect is at
least a forceful a contrario argument against the extension to other state officials.
Here we should note that in the absence of representative quality a claim against a
foreign state official in his official capacity is arguably inadmissible because insti-
gated against the wrong defendant.
This difference in approach is illustrated by the comparison of the reason-
ing in the German Church of Scientology Case with the reasoning employed by a
Dutch court in a case almost identical on the facts. The Dutch case of Church of
Scientology in the Netherlands Foundation and Others v (1) Herold and (2) Heinrich
Bauer Verlag concerned the publication of an article that the plaintiff considered
to be insulting.¹²⁶ Apart from the publishing company (defendant 2) the Chief of
the German Federal Police (defendant 1) was sued because the article was allegedly
based on a report of the German police. In the German case a similar complaint
was filed against the Head of New Scotland Yard. The finding of the German
court that in regard to the conduct complained of the foreign state official sued
had been ‘acting as the expressly appointed agent of the British State’ and that
‘[t]he acts of such agents constitute direct State conduct and cannot be attributed
as private activities to the person authorized to perform them in a given case’ was
followed by the application of the law of state immunity.¹²⁷ In the Dutch case the
chief of police argued in comparable terms that ‘in his official capacity, he should
in law be identified with the German Federal Republic’.¹²⁸ The Dutch court,
however, held the rules of state immunity not to apply. Since the defendant was
considered not to have the capacity to represent the Federal Republic, the Federal
Republic had not been duly summoned and ‘exceptions under international law
limiting the Dutch Court’s jurisdiction over sovereign states and assimilated par-
ties do not apply to him.’¹²⁹ Instead, the claim was declared inadmissible. The
court considered that in the proceedings before it the defendant could only be
held responsible as a private person, not in his official capacity. The court rea-
soned that since ‘[t]he act imputed by the plaintiffs to Defendant (1), whether
committed by him personally or, under his responsibility, by the division headed
by himself . . . can only be regarded as an act done in his official capacity and
not as a private person. . . . it follows that the claim of the plaintiffs . . . is brought
against the wrong defendant, and that their claim addressed to this defendant
in his official capacity is, for this reason, inadmissible. This is not altered by the
303 (Italy, Pretore di Roma, 1974); Caisse Industrielle d’Assurance Mutuelle v Consul Général de
la République Argentine 45 ILR 381 (France, Tribunal de Grande Instance of the Seine, 1964);
Consular Premises (Greece) 6 AD 338, case no 187 (Greece, Court of Athens, 1931); Nashashibi v
The Consul-General of France in Jerusalem (Jordan, 1958).
¹²⁶ Church of Scientology in the Netherlands Foundation and Others v (1) Herold and (2) Heinrich
Bauer Verlag (The Netherlands, 1980).
¹²⁷ Church of Scientology Case (Federal Republic of Germany, 1978).
¹²⁸ Church of Scientology in the Netherlands Foundation and Others v (1) Herold and (2) Heinrich
Bauer Verlag (The Netherlands, 1980) 381.
¹²⁹ ibid 381.
allegation of the plaintiffs during the course of the proceedings that Defendant
(1) committed the acts in question in dereliction of his official duties.’¹³⁰
The practical result of the German and Dutch decision is the same but the
cases differ crucially in their theoretical approach. Both the German and the
Dutch court agreed that the police officers could not be held responsible per-
sonally for the official acts at the basis of the dispute before them. Whereas the
German court took this fact to mean that the claim was in fact directed against
the foreign state, dismissing the claim on state immunity grounds, the Dutch
court concluded that the claim should have been brought against the foreign state,
declaring the claim against the police officer inadmissible.¹³¹ The Dutch court
proceeded from the assumption that foreign state officials, apart from those that
can represent the state in law, can only be brought before the courts with regard
to acts for which they bear personal responsibility.
Anyway, leaving aside the critical intermezzo, it can be stated that the appli-
cation of the law of state immunity to foreign state officials can be explained in
the terms set out above. The rule of functional immunity is a necessary first step in
the application of the law of state immunity to foreign state officials. The rule ascer-
tains the status of the defendant before the court. If the case before the court—
explicitly or necessarily—concerns an official capacity suit, the foreign state is the
real party to the dispute. The statement of an Australian court that applied the
law of state immunity in a case against a foreign state official that ‘an entitlement
to sovereign immunity is not limited to the foreign sovereign himself’ is hence
rejected here.¹³² The entitlement to state immunity is limited to the foreign state,
but that state may be implicated in suits against its officials in an official capacity.
It is submitted that this is the context in which the consideration regarding indi-
vidual state officials and the law of state immunity in Oppenheim’s International
Law must be placed. The text reads in relevant part that an ‘[i]ndividual may
claim state immunity when sued in respect of activities on behalf of the state since
in such circumstances that person can be regarded as impleading the state.’¹³³
2.3 Final Observations

De Sena—in one of the most comprehensive studies on the functional immun-
ity of foreign state officials—has argued that no unitary principle underlies
¹³⁰ ibid 381–2. It has been argued that the court’s reasoning in this case should be explained by
the fact that it was no longer possible to apply the rule of state immunity since the Judge of the Roll
had failed to strike out the case on that ground. Cf CCA Voskuil, ‘State Immunity and the Law of
Civil Procedure and Execution in the Netherlands’ in TD Gill and WP Heere (eds), Reflections on
Principles and Practice of International Law (2000) 223, 243–4.
¹³¹ In a case instigated by Scientology against a German state official in the US courts the
German approach was followed: cf Heller v Caberta, case no 8:00CV–1528–T–27 (US, Ct of Apps
(11th Cir), 9 May 2002).
¹³² Grunfeld and Another v United States of America and Others (Australia, 1968) 334.
¹³³ R Jennings and A Watts (eds)(1992) i 346.
functional immunity practice.¹³⁴ He strongly opposes the idea that functional
immunity necessarily follows when an individual acts in his quality of agent of
the state. According to De Sena the fact that an individual has acted in such qual-
ity assumes a different relevance in different contexts. In the previous sections
this study has attempted to explain the rule of functional immunity from the
perspective of a unitary binding principle. It was argued that functional immun-
ity applies when a foreign state official has acted under the authority of his home
state. Although the thesis of De Sena can not be dealt with here in any detail it
will prove useful to examine some of his arguments in the light of the findings of
the present study.
De Sena sets out to distinguish the treatment of foreign state officials on
the basis of factors extraneous to the quality in which an act was committed.
First he points out that the treatment of foreign state officials that perform non-
authorized acts within foreign territory depends on whether a violation of
national law independent of the violation of the territorial sovereignty of the
foreign state has occurred.¹³⁵ He argues that if no such independent violation
is at issue, the treatment of the official tends to be absorbed in the violation of
international law, while in the case of an independent violation the individual
responsibility of the individual is the rule. In regard to both situations he points
out that the fact that the state official has acted in his official capacity does not of
itself impose functional immunity. Second, as regards internationally legal activ-
ity De Sena moreover distinguishes between the exercise of functions that are
internationally protected and of functions that are not.¹³⁶ As examples of the first
category he discusses head of state immunity, diplomatic immunity and consular
immunity. He moreover points out that the immunity of consular officers con-
founds with the immunity of the state when they are called to account in respect
of acts that are not typical consular acts.¹³⁷ A third important distinction he
proposes is that between crimes against international law where the imputability
of international responsibility to the state is in substance irrelevant—though the
question of imputability of the act may form a constituent of the definition of
the crime, as in the case of torture—and those crimes where such imputability
constitutes the context in which the individual responsibility necessarily inserts
itself.¹³⁸ The crime of genocide and crimes against humanity in general are
examples of the second category. The ascertainment of the individual responsi-
bility for these crimes involves necessarily an inquiry into the overall government
¹³⁴ P De Sena (1996) cf especially 96–104.

¹³⁵ ibid 109.
¹³⁶ ibid 191.
¹³⁷ ibid 235.
¹³⁸ ibid 139. Also in P De Sena, ‘Immunity of State Organs and Defence of Superior Orders
as an Obstacle to the Domestic Enforcement of International Human Rights’ in B Conforti and
F Francioni (eds), Enforcing Human Rights in Domestic Courts (1997) 367; P De Sena, ‘Immunità
di ex-capi di Stato e violazioni individuali del divieto di tortura: sulla sentenza del 24 Marzo 1999
della Camera dei Lords nel caso Pinochet’ (1999) 82 RDI 933.
policy of which they are by definition the expression. National courts, De Sena
argues, may prosecute foreign state officials that have committed international
crimes of the first category, but will in principle refrain from prosecuting those
involved in crimes of the second category. The rare examples of prosecution of
foreign state officials for such crimes in national courts—like the Eichmann,¹³⁹
Barbie,¹⁴⁰ Demjanjuk,¹⁴¹ Finta,¹⁴² and Karadžić¹⁴³ cases—must, according to
De Sena, be understood in the context of action undertaken by the international
community in respect of these crimes: the establishment of the Nuremberg
Tribunal as part of the systematic dismantling of the overall organization of the
German state, and the establishment of the ad hoc international criminal tribu-
nal for the former Yugoslavia.
The differences in treatment identified by De Sena are not however incompat-
ible with a unitary approach to the rule of functional immunity. In respect of the
category of unauthorized acts on foreign territory it must at the outset be noted
that De Sena proceeds from the factual rather than the legal official capacity
concept. The argument that the official capacity in which an act is performed
does not impose functional immunity when crimes that violate the territorial
sovereignty of a foreign state are at issue proceeds from a mistaken conception of
the operation of the rule of functional immunity. Only if the authorized exercise
of sovereign activity is at issue or if the actions of the foreign state officials do not
come within the context of national law does the rule of functional immunity
apply to acts committed by foreign state officials within the territory of the forum
state. More specifically, the distinction that De Sena identified within this cat-
egory of acts arguably confuses practice with legal principle. The fact that no
jurisdiction is exercised over foreign state officials that have violated the territorial
sovereignty of the forum state may be explained by the fact that such a violation
is not criminalized in the national legal system. More importantly, the fate of
the individual state official will in such cases often be included in the diplomatic
settlement of the controversy between the states involved. The non-exercise of
jurisdiction is hence within the discretion of the forum state rather than imposed
by legal principle.¹⁴⁴
Also the distinction between the exercise of functions that are and functions
that are not specifically protected by international law can be explained from
¹³⁹ Israel v Eichmann 36 ILR 5 (Israel, DC of Jerusalem, 1961), confirmed by the Supreme
Court 36 ILR 277 (1962).
¹⁴⁰ Féderation National des Déportées et Internés Résistants et Patriotes and Others v Barbie 78 ILR
125, (1985) 78 ILR 124, (1988) 100 ILR 330 (France, Court of Cassation (Criminal Chamber)
1985 and 1988).
¹⁴¹ Demjanjuk v Petrovsky 79 ILR 538 (US, Ct of Apps (6th Cir), 1985).
¹⁴² Regina v Finta 93 ILR 424 (Canada, High Court of Justice, 1989).
¹⁴³ Kadic v Karadžić 70 F 3d 232 (US, Ct of Apps (2nd Cir), 1995); (1995) 34 ILM 1595.
¹⁴⁴ De Sena admits in fact that the non-exercise of jurisdiction over foreign state officials that
commit a violation that is absorbed by the violation of the territorial sovereignty is not a legal prin-
ciple but an expression of the discretion of the forum state: P De Sena (1996) 125.
the inherent limits of the rule of functional immunity. If a foreign state official
exercises exclusive competences within the territory of the forum state the exact
limits of the agreed function are essential to determine whether the activity was
authorized by the forum state or not. Moreover, if it concerns authorized sover-
eign activity the presumption of authority applies, as a result of which the court
must refrain from questioning the actual mandate of the state official. Lastly,
even though the rule of consular immunity overlaps with the rule of functional
immunity it must not be forgotten that the rules have a different character. In
sum, the different reasoning identified by De Sena is not a reflection of a differ-
ence in the applicable principles. Rather, it reflects the limited applicability of the
presumption of authority to acts performed within the context of the exercise of
sovereign authority under international law only.
The final distinction identified by De Sena attributes characteristics to the rule
of functional immunity that may in fact be evidence of legal or policy concerns
unrelated to that rule. The distinction is a very real one. The adjudication of cer-
tain international crimes indeed requires explicit qualification of the acts of a
foreign state. While the qualification of the activity of a foreign state in terms
of international law is not a problem as such—think of cases like the Japanese
Shimoda case,¹⁴⁵ or prosecutions of private individuals or companies for inter-
national crimes¹⁴⁶—this may be different when such qualification creates the
competence over the (former) foreign state officials impleaded. Since the absence
of functional immunity for international crimes is an exception to the normal
horizontal division of competences between national courts, courts may under-
standably be somewhat apprehensive to adjudicate allegations of international
crimes that involve highly controversial qualifications of foreign state activity.
The Nuremberg Tribunal, the ICTY and the ICTR are conspicuous examples of
the existence of international consensus on the legal qualification of the activity
of a particular state, but also in the Pinochet case the UK courts were blessed with
the existence of broad international consensus as to the merits of the allegations.
Chapter 5 of this study will discuss the issue in some more detail and will explain
why the distinction between two types of international crimes, as proposed by
De Sena, is instrumental but should not be seen to represent a schismatic applica-
tion of the rule of functional immunity.¹⁴⁷
In sum, it is argued that a unitary explanation of the rule of functional immun-
ity does exist. (Former) foreign state officials do not incur personal responsibil-
ity for official acts. These acts are in law the acts of the foreign state. As long as
¹⁴⁵ Shimoda et al v The State (Japan, Tokyo DC, 1963) trans in (1964) 8 Japanese Annual of
International Law 231; 32 ILR 626.
¹⁴⁶ Cf eg Doe v UNOCAL 395 F 3d 932 (US, Ct of Apps (9th Cir), 2002); Van Anraat case (The
Netherlands, 2005). Domestic law principles may of course compel courts to exercise restraint, cf R
v Jones [2006] UKHL 16 (UK, HL, 2006) § 30, available at <http://www.publications.parliament.
uk/pa/ld/ldjudgmt.htm>.
¹⁴⁷ Cf ch 5 § 2.3.1.4 below.
their acts are performed within the context of exercise of state authority under
international law they are presumptively committed on behalf of the state. This
argument is fundamentally distinct from Kelsen’s act of state argument. In fact,
the arguments reason in exact opposite directions. Where this study premises
the application of the law of state immunity on the autonomous principle that
state officials do not bear individual responsibility for official acts and hence can
be sued only in their official capacity in their regard; Kelsen argues that the law
of state immunity must apply to all acts performed by state officials that can be
attributed to the state and that therefore the state official cannot be held person-
ally responsible. As said before, this latter argument cannot be explained from
the principles on which the law of state immunity is said to be based. From the
perspective of the equality and independence of states Kelsen’s argument acquires
a problematic circularity. Only if the state official concerned is not personally
responsible can it be said that a claim against him necessarily impleads the state.
Kelsen regarded this non-personal responsibility however a consequence of the law
of state immunity. This section has set out that the chicken-and-egg-riddle can
be decided in favour of the rule of functional immunity. And since a decision in
favour of the law of state immunity necessarily relies either on the dubious con-
cept of act of state immunity or on circular reasoning it is argued that it should.
3 The Influence of the ‘Act of State’ Confusion in Contemporary

Functional Immunity Thinking on the Debate on the
Human Rights Exception
3.1 Introduction
The previous section argued that state officials enjoy functional immunity in
regard to acts that are in law acts of the state rather than of the official personally.
Contemporary doctrine and jurisprudence however rely increasingly on essen-
tially different ‘act of state’ concepts to define the rule of functional immunity.
Functional immunity is held to attach to ‘acts attributable to the state’, as well
as to ‘sovereign acts of the state’.¹⁴⁸ The dominant tendency is the rationaliza-
tion of the rule in terms of the application of the law of state immunity ratione
materiae. The conception of the rule of functional immunity inevitably deter-
mines the arguments relied on and the position taken in the debate on functional
immunity and human rights. This section sets out the two alternative act of state
concepts and their hold on the discussion on ‘the human rights exception’. It will
be explained how these concepts differ from the act of state concept advanced in
this study and why this latter concept should prevail.
¹⁴⁸ In addition, US courts have in human rights suits linked the rule to the act of state concept
of the US act of state doctrine. This will be discussed in ch 5 § 2.3.1.3 of this study.
3.2 ‘Act of State’ as ‘Act Attributable to the State’

It is often said that official acts for functional immunity purposes are acts per-
formed by a foreign state official that can be attributed to his home state. Denza
for example writes in regard to the functional immunity of article 39.2 VCDR:
[T]he correct test to be applied . . . is one of imputability. If the conduct in question
is imputable or attributable to the sending State—even if it did not expressly order or
sanction it—then continuing immunity ratione materiae should apply. The diplomat
remains immune because his own sending State is really responsible.¹⁴⁹
In the same vein, it is argued that functional immunity applies whenever the
home state is responsible under the law of state responsibility. In the words of
Salmon ‘chaque fois que la responsabilité de l’Etat . . . est retenue, cet acte de l’Etat
doit être couvert par l’immunité’.¹⁵⁰ Under the rules of state responsibility an
act of a state official is attributed to the state—and considered an act of state—
whenever that official has acted in his official capacity, even if he exceeded his
competence according to internal law or contravened instructions concerning
his activity.¹⁵¹ Discussing the immunity of former foreign heads of state Watts—
under explicit reference to the concept of attribution in the law of state responsi-
bility—considered that
[a] Head of State clearly can commit a crime in his personal capacity; but it seems equally
clear that he can, in the course of his public functions as Head of State, engage in con-
duct which may be tainted by criminality or other forms of wrongdoing. The critical test
would seem to be whether the conduct was engaged in under the colour of or in ostensible
exercise of the Head of State’s public authority. If it was, it must be treated as official con-
duct, and so not as a matter subject to the jurisdiction of other States whether or not it was
wrongful or illegal under the law of his own State.¹⁵²
¹⁴⁹ E Denza, ‘Ex Parte Pinochet: Lacuna or Leap?’ (1999) 48 ICLQ 949, 951; E Denza(1998)
363. Cf also Former Syrian Ambassador to the German Democratic Republic (Federal Republic of
Germany, 1997) discussed in ch 4 § 2.1.2.1 below. Because of the peculiar interpretation of art
39.2 this case is not an example of the ‘attribution’ argument in general.
¹⁵⁰ J Salmon, Manuel de droit diplomatique (1994) 465. Cf on this ‘parallelism’ also YBILC
1999 ii (part two) annex, § 23.
¹⁵¹ Cf the commentary of the ILC, to arts 4 and 7 of the ILC Articles on State Responsibility,
ILC Report on the work of its fifty-third session (2001) A/56/10. Even ‘manifest incompetence’
would not impede the imputability to the state: YBILC 1975 ii 61, § 1. Cf for early examples
Union Bridge Company Claim (United States v Great Britain) 6 RIAA 138 (Arbitral Tribunal (Great
Britain—United States) 1924); Caire case (France v United Mexican States) 5 RIAA 516 (French—
Mexican Claims Commission, 1929); Youmans case (United States v United Mexican States)
4 RIAA 110 (US–Mexico General Claims Commission, 1926). Cf also T Meron, ‘International
Responsibility of States for Unauthorized Acts of their Officials’ (1957) 23 BYIL 85; L Condorelli,
‘L’imputation à l’État d’un fait internationalement illicite: solutions classiques et nouvelles tend-
ances’ (1984–VI) 189 RdC 9.
¹⁵² A Watts, ‘The Legal Position in International Law of Heads of State, Heads of Government
and Foreign Ministers’ (1994–III ) 247 RdC 13, 56.
In its 2006 decision in Jones v Saudi Arabia the House of Lords explicitly linked
the law of state responsibility and the law of state immunity.¹⁵³ Lord Hoffmann
stated that ‘the circumstances in which a state will be liable for the act of an
official in international law mirror the circumstances in which the official will
be immune in foreign domestic law’.¹⁵⁴ Referring to, inter alia, articles 4 and 7
of the ILC Articles on State Responsibility and the commentary thereto,¹⁵⁵ he
pointed out that this rule also applies when the state official has not been acting
in accordance with his instructions or authority.¹⁵⁶
Under this approach official acts—or acts of state—are usually contrasted
with personal acts, or official conduct with private conduct.¹⁵⁷ The applicability
of the rule of functional immunity then depends on the question ‘whether the act
in question was an official one, done on behalf of the State, or whether it was a
frolic of the individual’s own’.¹⁵⁸
Clearly, under the attribution approach the definition of the rule of functional
immunity in terms of the official capacity in which an act is performed proceeds
from the factual rather than the legal interpretation of this notion.¹⁵⁹ The respon-
sibility of the state arises not only regardless of the ultra vires character of an act,
but also when the state official did not act within the context of the authority of
the state under international law. It is good to realize that under this approach the
attack on the Rainbow Warrior by French secret agents, murders committed by
secret agents like Staschynskij and the assault of US nationals by Mexican con-
sular officers qualify as official acts. This conception of the rule does not, there-
fore, account for certain instances of exercise of jurisdiction over foreign state
officials.
The difference with the act of state concept advanced in this study is apparent.
In the perspective proposed in section 2 of this chapter imputability is a necessary
but not sufficient requirement for the qualification of an act as in law the act of
the state. As the ICTY pointed out in the Blaškić case ‘official action can only be
attributed to the State’.¹⁶⁰ It was pointed out above that acts performed outside
the context of exercise of state authority under international law as well as acts
that violate internationally agreed normative limits on the concept of ‘act of state’
may still be attributable to the state but are equally attributable to the person of
the foreign state official. There is, in sum, an area between official acts and ‘frolics
of the individual’s own’.
Many of the scholars that adopt the imputability reasoning have argued that
functional immunity is not available for international crimes. Crucially, however,
¹⁵³ Jones v Saudi Arabia (UK, 2006) .

¹⁵⁴ ibid § 74. Cf also § 12.
¹⁵⁵ See for the commentary ILC Report on the work of its fifty-third session (2001) A/56/10.
¹⁵⁶ ibid § 78.
¹⁵⁷ Cf eg ibid 57 and 89.
¹⁵⁸ CA Whomersley (1992) 856.
¹⁵⁹ Cf § 2.2.1.5 above for the distinction.
¹⁶⁰ Prosecutor v Blaškić (ICTY, 1997) § 38 (emphasis added).
their argument is not that those crimes do not qualify as official acts. Rather, they
argue that an exception to the rule of functional immunity has developed in cus-
tomary international law. For instance, both Salmon and Watts have argued that
the rule of individual responsibility for international crimes means that func-
tional immunity may not be available in respect of these crimes irregardless of
their official nature.¹⁶¹ In fact, from their theoretical perspective the argument
that international crimes do not qualify as official acts has highly undesirable
consequences. The equation of official acts with acts attributable to the state cre-
ates a vicious circle in which an act must be official for functional immunity pur-
poses in order to trigger the responsibility of the home state under international
law. Bothe argued for instance that it ‘darf nicht verkannt werden, daß dann,
wenn man ein bestimmtes Verbrechen nicht als Amtshandlung gelden lassen
will, die unmittelbare völkerrechtliche Verantwortlickeit des Heimatsstaates des
handelnden Staatsorgans entfällt.’¹⁶² In reaction to the individual opinions of
three Lords in the Pinochet case that the alleged torture did not qualify as an offi-
cial act, a number of scholars argued that the violation of human rights by state
officials should be considered an official act since it would otherwise be impossible
to assert the international responsibility of the home state for that act.¹⁶³ When
a few years later the ICJ considered in the Arrest Warrant case that state officials
not protected by personal immunity may be sued in respect of acts committed ‘in
a private capacity’ during their period in office, Cassese lashed out at the Court.
He pointed out that international crimes ‘are not as a rule “private acts” ’ . . . These
crimes are seldom perpetrated in [a private] capacity . . . Indeed, individuals com-
mit such crimes by making use (or abuse) of their official status. It is primarily
through the position and rank they occupy that they are in a position to order,
instigate, or aid and abet or culpably tolerate or condone such crimes as genocide
or crimes against humanity or grave breaches of the Geneva Conventions. In the
case of torture (not as a war crime or a crime against humanity), the ‘instigation
or consent or acquiescence of a public official or other person acting in an offi-
cial capacity’ is one of the objective requirements of the crime.’¹⁶⁴ In response to
the consideration in the concurring opinion of Judges Higgens, Kooijmans and
Buergenthal that international crimes do not qualify as official acts, Cassese noted
disapprovingly that this would mean that the crimes for which von Ribbentrop
(Reich Minister for Foreign Affairs from 1938 to 1945) was sentenced to death by
the Nuremberg Tribunal should be regarded as ‘private acts’.¹⁶⁵
These cases will be discussed in detail in chapter 5 of this study. Here it suffices
to ask the reader to consider the following questions: Who says the ICJ proceeded
¹⁶¹ J Salmon (1994) 468; A Watts (1994) 82 and 84.

¹⁶² M Bothe (1971) 255.
¹⁶³ Cf ch 5 n 208 below.
¹⁶⁴ A Cassese, ‘When May Senior State Officials Be Tried for International Crimes? Some
Comments on the Congo v Belgium Case’ (2002) 13 EJIL 853, 868.
¹⁶⁵ ibid 870. Cf for similar criticism ch 5 n 211 below.
from the same conception of the rule of functional immunity as Cassese? Would
it not be possible that it referred to acts performed in an official capacity in a
legal sense, as proposed in this study? The principle of individual responsibility
then exerts its influence at the phase of qualification of the act. This difference
in perspective severs the link between the qualification of the act for functional
immunity purposes and the law of state responsibility. The harsh criticism of
Cassese and co would then be premature—to say the least.
In conclusion it must be pointed out that the conception of functional immun-
ity in terms of acts attributable to the state lacks a convincing rationale. Why
would a state official be immune as soon as his acts can be attributed to the state?
The criterion of attribution was relied on by Kelsen in his act of state immunity
argument.¹⁶⁶ However, Kelsen formulated his argument from the perspective of
an absolute state immunity rule. Obviously, the act of state concept on which the
argument operated is no longer coherent from the perspective of the restrictive
state immunity rule. Nowadays, the rationale of Kelsen’s argument requires reli-
ance on the sovereign nature of the act.
3.3 ‘Act of State’ as ‘Sovereign Act’: A Contemporary Version

of Kelsen’s Act of State Immunity Argument
It was already stated in the introduction to this chapter that the question of func-
tional immunity of foreign state officials is today often presented as a question
of state immunity ratione materiae. Roughly, it is argued that the law of state
immunity covers foreign state officials if an act is attributable to the home state
and the latter would have been immune had it been sued instead. As a conse-
quence, it is sometimes argued that foreign state officials are immune in respect
of official, public acts.¹⁶⁷
Over the years courts and scholars have often rationalized the rule of func-
tional immunity in terms of the immunity of the home state in respect of official
acts. A conspicuous example is provided by the reasoning of the Italian Court
of Cassation in Rubin v Console della Repubblica di Panama.¹⁶⁸ The court held
the rule of functional immunity to constitute ‘the application of the recognition
of the ‘extraneousness’ of the official acts of the consul, in so far as he acts as an
agent of the foreign State, in respect to the legal order of the territorial State. It is
a real and genuine defect in the jurisdiction of the territorial State over disputes
connected with such acts.’¹⁶⁹ Article 39.2 VCDR has been explained in compar-
able terms. Dinstein wrote for example that ‘[o]fficial diplomatic acts . . . enjoy
¹⁶⁶ Cf § 2.1 above.

¹⁶⁷ Cf eg H Fox (2002) 509.
¹⁶⁸ Rubin v Console della Repubblica di Panama (Italy, 1978).
¹⁶⁹ ibid 567 (my translation): ‘Questo principio costituisce applicazione del riconoscimento
della estraneità degli atti ufficiali del console, in quanto organo dello Stato estero, rispetto
all’ordinamento dello Stato territoriale, e si sostanzia in un vero e proprio difetto di giurisdizione
permanent exemption from the jurisdiction of local courts because they are
imputed to the foreign State, and that State is entitled to immunity in respect of
its own acts.’¹⁷⁰ In that same vein, Rapporteur Reeves on the Harvard Research
Project on Diplomatic Privileges and Immunities argued that ‘[i]nsofar as the
member acts in his official capacity, his immunity confounds itself with that of
the sending state itself and depends . . . upon the intrinsic nature of the act per-
formed. International law imposes upon the courts of the receiving State an
incompetence ratione materiae in the case of public acts . . . Immunity for offi-
cial acts . . . applies to all public acts, by whomsoever performed, and to all state
agents, whether diplomatic or otherwise.’¹⁷¹ He further considered that ‘immun-
ity for official acts is an exemption from both the jurisdiction and the law of
the receiving state, and, as a manifestation of the immunity of the sending state
acting in a public capacity, it imposes an incompetence ratione materiae upon the
receiving state’.¹⁷²
Obviously, this reasoning does not reflect the non-personal responsibility of
state official in respect of official acts. It is moreover underinclusive since in fact
functional immunity extends beyond the acts covered by the law of state immun-
ity.¹⁷³ Much more problematic is however the reverse reasoning that regards the
state official immune whenever the acts can be attributed to the home state and
that state is immune in their regard.
An early version of this argument—of which, as discussed above, Kelsen
was a staunch defender—was formulated by the Committee of Experts for
the Progressive Codification of International Law in 1927. It wrote that ‘[t]he
inability of courts to exercise jurisdiction in regard to a sovereign act of a for-
eign Government . . . should apply where the defendant is sued personally for acts
done by him in his capacity as a public official—though he no longer retains that
capacity at the time of the proceedings—or under powers conferred on him by a
foreign State.’¹⁷⁴
A more recent—though only tentative—example of such argumentation is
provided by the Canadian case of Jaff e v Miller.¹⁷⁵ Mr Jaffe alleged that US state
officials had laid false criminal charges against him and had had him kidnapped
from Canada to face these charges after having unsuccessfully tried to obtain
di quest’ultimo per le controversie connesse con tali atti’. Cf further Church v Ferraino
(Italy, 1986).
¹⁷⁰ Y Dinstein (1966b) 83.
¹⁷¹ Harvard Law School, Research in International Law (Reporter JS Reeves) Diplomatic
Privileges and Immunities, (1932 supplement) 26 AJIL 15, 99.
¹⁷² ibid 137.
¹⁷³ Cf § 2.2 above.
¹⁷⁴ League of Nations, Committee of Experts for the Progressive Codification of International
Law, Questionnaire no 11, Competence of the Courts in Regard to Foreign States, Report of the
Sub-Committee (Rapporteur Matsuda) (1927), (1928 special supplement) 22 AJIL 117, 125.
¹⁷⁵ Jaff e v Miller and Others (Canada, 1993). Cf also Walker et al v Bank of New York Int 104
ILR 277 (Canada, CA for Ontario, 1994).
his extradition. He brought a civil claim before the Canadian courts against the
officials who were working in the Office of the Attorney General of the State
of Florida. The officials brought a motion to dismiss the claim on grounds of
immunity from jurisdiction under the Canadian State Immunity Act 1985.
Their claim that state officials were included in the definition of a ‘foreign state’
under section 2 of the Act was acknowledged by the court.¹⁷⁶ It held that ‘the
acts that the personal responding parties performed were within the scope of
their duties as functionaries of the State of Florida, and they are entitled to state
immunity if immunity is available to the State of Florida’.¹⁷⁷ The court empha-
sized that ‘[t]he illegal and malicious nature of the acts alleged do not of them-
selves move the actions outside the scope of the official duties of the responding
defendants’.¹⁷⁸ This part of the court’s reasoning is still reconcilable with the the-
sis that the applicability of the law of state immunity is a consequence of the
rule of functional immunity—albeit that it suffers from the underinclusiveness-
deficiency. In an attempt to explain the rationale of this extension of the doctrine
of state immunity the court however also stated that ‘to confer immunity on a
government department of a foreign state but to deny immunity to the function-
aries who in the course of their duties performed the acts, would render the State
Immunity Act ineffective. To avoid having its action dismissed on the grounds
of state immunity, a plaintiff would have only to sue the functionaries who per-
formed the acts.’¹⁷⁹ Although the case was clearly concerned with official capacity
suits against foreign state officials, the decision at least implies that in general no
jurisdiction can be exercised over foreign state officials that acted under colour of
law if immunity would be available had the claim been brought directly against
the state instead.
In less uncertain terms, the US court in Herbage v Meese approached the
functional immunity of foreign state officials as a question of state immun-
ity ratione materiae in respect of foreign sovereign activity.¹⁸⁰ In Chuidian v
Philippine National Bank the court had considered ‘a suit against an individual
acting in his official capacity the practical equivalent of a suit against the sover-
eign directly’.¹⁸¹ It pointed out that excluding individuals from the protection of
the FSIA ‘would amount to a blanket abrogation of foreign sovereign immunity
by allowing litigants to escape the effect of the FSIA by artfully pleading com-
plaints against individual officials, rather than the foreign state in question’.
¹⁷⁶ Section 2 (b) provides that ‘[i]n this Act . . . any government of the foreign state or of
any political subdivision of the foreign state, including any of its departments, and any agencies of
the foreign state.’
¹⁷⁷ Jaff e v Miller and Others (Canada, 1993) 469.
¹⁷⁸ ibid 460. The Court approvingly cited Herbage v Meese 98 ILR 101 (US, DC for the District
of Columbia, 1990), affirmed without reasons 946 F 2d 1564 (1991).
¹⁷⁹ ibid 458–9.
¹⁸⁰ Herbage v Meese (US, 1990).
¹⁸¹ Chuidian v Philippine National Bank (US, 1990) 1101–2.
Thus, the FSIA would be undermined by ‘a peculiar variant of forum shopping’.
The court emphasized that a ‘bifurcated approach to sovereign immunity was
not intended by the Act’.¹⁸² Subsequently, in Herbage v Meese the court consid-
ered that it is not possible to sue a foreign state official in his private capacity
in respect of acts performed while engaged in sovereign activity. Herbage was a
British national sentenced to imprisonment by the US courts and extradited from
the United Kingdom to the United States. He sued the UK law enforcement
officers involved in his extradition alleging that these state officials had engaged
in a conspiracy to deprive him of his constitutional rights by providing false
information to a London magistrate who had him arrested and extradited on the
basis of that information. Herbage asserted that his action was ‘directed against
the British defendants, solely, in their individual capacity, and that the complaint
is not directed per se, against the British Government’.¹⁸³ The court responded
that ‘the actions . . . are ones that those defendants could have taken only in their
official capacities. These officials were acting as law enforcement officers. Indeed
it is difficult to see how these persons could be sued, and held potentially respon-
sible, in their individual capacities for actions they took at the behest of their
government or at the very least “under color of law”.’¹⁸⁴ It was concluded that
when a state official acts as an agent of the state he qualifies under the FSIA.
Pertinently, the court held that ‘the standard for determining whether immunity
is warranted does not depend on the identity of the person or entity so much as on
the nature of the act for which the person or entity is claiming immunity.’¹⁸⁵ ‘There
can be no doubt’, it continued, ‘that the acts by the British defendants . . . are
“sovereign or governmental in nature” . . . . these defendants were performing offi-
cial government functions, classically belonging to the discretion of the execu-
tive, and classically immune from suit. The FSIA bars Herbage’s claims against
the British defendants because his allegations would require an adjudication of
the propriety and legality of the acts of British authorities in the performance of
their official duties.’ The court explicated that there exists no ultra vires excep-
tion to the immunity under the FSIA holding that ‘[t]he FSIA is absolute in this
regard, no matter how heinous the alleged illegalities.’¹⁸⁶ It will be explained in
chapter 5 of this study that subsequently US courts have in fact devised a line of
reasoning to avoid the automatic application of the FSIA to foreign state officials
sued for serious human rights violations committed under color of law.¹⁸⁷
English courts have most explicitly regarded the capacity in which the for-
eign state official is—or can—be sued irrelevant. The individual (concurring)
opinions in the 1957 decision of the House of Lords in Rahimtoola v Nizam of
¹⁸² ibid 1102–3.

¹⁸³ Herbage v Meese (US, 1990) 106–7.
¹⁸⁴ ibid 107.
¹⁸⁵ ibid 107.
¹⁸⁶ ibid 108.
¹⁸⁷ Cf ch 5 § 2.3.1.3 below.
Hyderabad illustrate the difference between the application of the law of state
immunity when a suit implicates the foreign state and the application of the law of
state immunity irregardless of such implication.¹⁸⁸ When in 1948 Indian troops
invaded Hyderabad, money was transferred from the account of the Nizam of
Hyderabad and his government at the Westminster Bank in London by the
Nizam’s Finance Minister—one of the persons entitled to operate the account—
into the name of Rahimtoola—then High Commissioner for Pakistan in the
UK—who received it on the instructions of the Foreign Minister of Pakistan.
The Minister had however acted without authority. The Nizam issued a writ
against, inter alia, Rahimtoola, claiming payment of the money. Rahimtoola
asked the writ to be set aside on the ground that the action sought to implead
Pakistan, or sought to interfere with the rights or interests of the Government
of Pakistan in the money. The Bank had transferred the money to Rahimtoola
under reference of his official position and his title was also shown on the credit
advice. Rahimtoola made affidavits saying that he had been instructed to accept
the transfer by the then foreign minister of Pakistan and that he had accepted as
an agent for his government. He explicitly stated that he only accepted as High
Commissioner and that he would have never accepted the money as a private per-
son. All Lords agreed that the rule of state immunity was applicable to the facts
of this case. With disregard of the many subtleties of the arguments advanced
by the Lords it can be roughly stated that where Lords Viscount Simonds, Reid,
Cohen and Somervell of Harrow based their decision on the finding that the pro-
ceedings impleaded Pakistan;¹⁸⁹ Lord Denning explicitly denied the relevance
of such implication, reasoning in terms that compare with act of state immunity
instead. He famously considered that
at the present time sovereign immunity should not depend on whether a foreign govern-
ment is impleaded, directly or indirectly, but rather on the nature of the dispute. Not
on whether ‘conflicting rights have to be decided’, but on the nature of the conflict. Is
it properly recognizable by our courts or not? If the dispute brings into question, for
instance, the legislative or international transactions of a foreign government, or the pol-
icy of its executive, the court should grant immunity if asked to do so, because it does
offend the dignity of a foreign sovereign to have the merits of such a dispute canvassed in
the domestic courts of another country.¹⁹⁰
The other Lords all explicitly distanced themselves from Lord Denning’s opin-
ion. Lord Denning’s reasoning should be understood in light of his zealous advo-
cacy of a restrictive approach to state immunity.¹⁹¹ The focus on the nature of the
act rather than the implication of the state has been crucial in the gradual shift
¹⁸⁸ Rahimtoola v Nizam of Hyderabad (UK, 1957).

¹⁸⁹ The Lords, inter alia considered that ‘the interests or property of the State are to be the sub-
ject of adjudication’ (ibid 178 per Lord Viscount Simonds); ‘the agent would merely be defending
the action on behalf of his principal’ (ibid 184 per Lord Reid).
¹⁹⁰ ibid 200.
¹⁹¹ Cf ch 2 § 2.2.3.2 above.
from an absolute to a restrictive approach in the United Kingdom. From that par-
ticular perspective the reasoning of Lord Denning can only be praised. However,
if we look at the two opinions from the perspective of the rationale of the applica-
tion of the rule of state immunity in cases against foreign state officials—severing
the reasoning from the historical context of the decision—it may be clear from
the argument developed in this study this far, that this author prefers the major-
ity approach. Lord Denning was right in criticizing the focus on the particular-
ities of English law in the argumentation developed by the other Lords. It is a
strange proposition of international law indeed that would depend for its appli-
cation on the finer points of national law like whether the principal of a trans-
feree can sue in his own capacity in name for cash at the bank—a point that, as
Denning pointed out, loomed large in the reasoning of the majority.¹⁹² However,
this does not in itself warrant recourse to a pure act of state immunity argument
in which the capacity in which a state official can be sued is irrelevant. The ques-
tion whether Rahimtoola had acted and accepted as an agent and was hence only
accountable in his official capacity should be—and can be—determined on the
basis of an objective standard. Did the state official act on behalf of his home state
or did he become obliged in his personal capacity?
Also the 1964 decision of the UK Court of Appeal in Zoernsch v Waldock and
Another evidences the tendency of some judges to see the immunity of foreign
state officials as a mere corollary of the law of state immunity.¹⁹³ In a case con-
cerning the functional immunity of members of the European Commission on
Human Rights the judges drew parallels with the functional immunity of foreign
state officials. Wilmer LJ stayed close to the majority reasoning in Rahimtoola.
He stated that ‘[i]nsofar as he acts in an official capacity, his acts are the acts
of the foreign sovereign whom he represents.’ A state official cannot be sued for
acts performed in his official capacity, he continued, ‘[f]or this would involve
impleading the foreign sovereign.’¹⁹⁴ Diplock L.J. rationalized the immunity of
foreign state officials somewhat differently. He argued that ‘[t]he immunity of
an envoy from suit or legal process arises from the duties owed by states to one
another in international law. . . . acts done by him in his official capacity . . . are
acts done on behalf of his Government. His Government being a foreign sover-
eign Government, under principles of English law which are so well know that
I refrain from citing authority, is immune from the jurisdiction of the English
courts. The propriety of its acts cannot be examined in a municipal court unless
it consents to waive its immunity. A foreign sovereign Government . . . can only act
through agents, and the immunity to which it is entitled in respect of its acts would be
illusory unless it extended also to its agents in respect of acts done by them on its behalf.
To sue an envoy in respect of acts done in his official capacity would be, in effect,
¹⁹² ibid 195–6.

¹⁹³ Zoernsch v Waldock and Another 41 ILR 438 (UK, CA, 1964).
¹⁹⁴ ibid 444.
to sue his government.’¹⁹⁵ Diplock LJ did not use the sweeping terms of Lord
Denning. His reasoning does however border on an act of state immunity argu-
ment and the allusion to Kelsen may be obvious.
The 1997 decision of the English Court of Appeal in Propend Finance Ltd v
Sing can be regarded as a full endorsement of the reasoning advanced by Kelsen.
The court did not in any way rely on the argument that the act complained of was
an act of the foreign state rather than of the foreign state official in his private cap-
acity. Rather, it rationalized the immunity of the state official completely in terms
of (the efficacy of) the law of state immunity. The court considered that ‘[t]he pro-
tection afforded by the Act of 1978 to states would be undermined if employees,
officers, (or as one authority puts it, “functionaries”) could be sued as individuals
for matters of State conduct in respect of which the State they were serving had
immunity. Section 14(1) must be read as affording to individual employees or
officers of the foreign State protection under the same cloak as protects the State
itself.’¹⁹⁶
This approach was confirmed by the House of Lords in the 2006 case of Jones
v Saudi Arabia.¹⁹⁷ Referring to the case law just discussed it stated that as a rule
‘the foreign state is entitled to claim immunity for its servants as it could if sued
itself. The foreign state’s right to immunity cannot be circumvented by suing its
servants or agents.’¹⁹⁸
A 1998 decision of the English High Court illustrates the absurd consequences
such an approach may have. The details of the case Re P (No 2) were discussed
earlier in this chapter. We saw that the court decided that the US diplomat had
not acted in the exercise of his functions removing his children from UK terri-
tory to the United States. In addition to the functional immunity argument, the
defendant and the United States intervening argued that ‘since the act was one
ordered by the State and in respect of which the State was immune from the jur-
isdiction of the English courts, the father benefited from the State immunity of
the United States’.¹⁹⁹ Under reference to Propend Finance the court sanctioned
this argumentation. It considered that since ‘the agent of a foreign State will enjoy
immunity in respect of his acts of a sovereign or governmental nature’ and since
the US government insisted that the children were removed on explicit orders
¹⁹⁵ ibid 450–1.

¹⁹⁶ Propend Finance Pty Ltd v Sing (UK, 1997) 669. S 14.1 of the SIA reads: ‘The immunities
and privileges conferred by this Part of this Act apply to any foreign or commonwealth State other
than the United Kingdom, and references to a State include references to—
(a) the sovereign or other head of that State in his public capacity;
(b) the government of that State; and
(c) any department of that government,
but not to any entity (hereafter referred to as a “separate entity”) which is distinct from the execu-
tive organs of the government of the State and capable of suing or being sued.’
¹⁹⁷ Jones v Saudi Arabia (UK, 2006) .
¹⁹⁸ ibid § 10.
¹⁹⁹ Re P (No 2) (UK, 1998). See § 2.2.1.2 above.
of the government, the taking of his children at the end of his mission ‘was an
act of a governmental nature and is as such subject to State immunity from legal
process’.²⁰⁰
The Re P case has been criticized for its complete deferral to the foreign state
in the ascertainment of the nature of the act.²⁰¹ The general underlying approach
of applying state immunity when governmental activity is at issue seems however
not to stir much controversy. In the cases discussed above the focus has shifted
from the determination of the actual defendant to the determination of the
immunity of the state.²⁰² This shift may be understood as part of the more gen-
eral trend in state immunity law to downplay the ascertainment of the status of
the defendant and rely on the corrective force of the restrictive rule instead. The
implication of the state in the proceedings is irrelevant: all focus is on the nature
of the activity before the court. Fox remarked in this respect that ‘the immunity
ratione materiae of both diplomat and head of state is identical to the immunity
of the State’.²⁰³ Bluntly put, the approach does away with the rule of functional
immunity. The immunity of foreign state officials is included in the concept of
state immunity ratione materiae in what constitutes a contemporary version of
Kelsen’s act of state immunity argument.
The application of the law of state immunity in what are personal capacity
suits perforce already evinces the irrelevance of the implication of the state. This
observation is of academic value only. As long as the foreign state official is not
personally responsible in respect of the acts at issue the difference is that between
an inadmissible claim and the grant of state immunity.
Clearly, the gap between the act of state concept advanced in this study and
the act of state concept of the state immunity ratione materiae approach is less
pronounced than that discussed in the previous section. If a state official exceeds
his competence while exercising sovereign functions abroad, the state immunity
ratione materiae approach leaves in theory the possibility to exercise jurisdiction
over the state under the territorial tort exception. Moreover, if a state declares that
a particular individual has not acted under its authority, exercise of jurisdiction is
equally possible. In fact, since foreign state officials that perform acts within the
context of a state’s exercise of authority under international law are presumed to
have acted on behalf of the state, the application of the law of state immunity to
cases where the exercise of state authority under international law is at issue seem
to overlap neatly.
²⁰⁰ ibid 495. The CA dismissed the appeal since the declaration sought served no useful purpose
and prolonged proceedings may be contrary to the interests of the children.
²⁰¹ See eg JC Barker, ‘State Immunity, Diplomatic Immunity and Act of State: A Triple
Protection against Legal Action?’ (1998) 47 ICLQ 950, 957.
²⁰² Cf CA Whomersley (1992) 850. Cf also Schmidt v Home Secretary of the United Kingdom, the
Home Secretary of the Metropolitan Police and Jones 103 ILR 322 (Ireland, High Court, 1994).
²⁰³ H Fox, ‘The Pinochet Case No 3’ (1999) 48 ICLQ 687, 696.
However, exactly for the topic under consideration in this study a gap between
the two concepts does exist. The Pinochet case is a conspicuous example of how
the conception of the rule of functional immunity in terms of state immunity
ratione materiae may include too much under the operation of the rule. The case
is discussed in detail in chapter 5 of this study. Here that discussion is briefly
anticipated in order to demonstrate the decisive influence of the conception of
immunity on the arguments advanced and the position taken in the debate on
functional immunity in respect of gross human rights violations. The question
of the immunity of the former head of state of Chile in respect of the alleged acts
of torture was approached as an inquiry into the scope of the state immunity of
Chile. Lord Hope, for example, pointed out that ‘the sovereign or governmen-
tal acts of one state are not matters upon which the courts of other states will
adjudicate’.²⁰⁴ It was therefore important, he argued, to qualify the alleged acts
as private or governmental in nature. Also Lord Millett considered the question
to be one as to the scope of state immunity ratione materiae. This immunity, he
argued, ‘is a subject-matter immunity. It operates to prevent the official and gov-
ernmental acts of one state from being called into question in proceedings before
the courts of another, and only incidentally, confers immunity on the individ-
ual. . . . it is closely similar to and may be indistinguishable from aspects of the
Anglo-American Act of State doctrine.’²⁰⁵
As was pointed out in the introduction of this chapter, from this conception of
the rule differentiation between cases involving foreign states and cases involving
foreign state officials is only possible from the perspective of developments in the
field of human rights law or international criminal law. Some Lords pointed out
that Pinochet would in any case be immune in civil proceedings. Lord Hutton,
for example, argued that since Chile would be entitled to state immunity would
a claim be brought against it on the basis of these allegations, Pinochet could
equally claim immunity under the principle stated in Jaff e v Miller.²⁰⁶ The Lords
therefore tried to establish an exception to the law of state immunity for criminal
law proceedings against foreign state officials in respect of the international crime
of torture.
The individual opinions of the Lords will be discussed in detail in chapter 5
of this study. Here it is pointed out that the conception of the rule of functional
immunity prevalent in the Pinochet case crucially limited the possible arguments
against the grant of immunity to the former dictator. A (former) foreign state offi-
cial is necessarily immune whenever his home state would be immune in respect
of activities performed by that official that are attributable to the home state.
This was evidenced by the 2006 decision of the House of Lords in Jones v Saudi
²⁰⁴ Pinochet no 3, 146, referring to I Congreso del Partido [1981] 2 All ER 1064 (UK, HL, 1981)
1070.
²⁰⁵ ibid 171. He repeated this in Holland v Lampen-Wolfe (UK, 2000) 1584 (per Lord Millett).
²⁰⁶ ibid 167.
Arabia.²⁰⁷ A UK national that had allegedly been severely tortured by Saudi state
officials in a Saudi prison had instigated a civil claim against Saudi Arabia and
Lieutenant Colonel Abdul Aziz—his alleged torturer. The House of Lords found
that Abdul Aziz was necessarily entitled to the same immunity as Saudi Arabia
since the alleged acts of torture would be attributable to Saudi Arabia under the
rules of state responsibility.²⁰⁸
Under the approach advanced in this study functional immunity—and hence
the possible applicability of the law of state immunity—is defeated whenever
states agree that state officials may incur individual responsibility while engaged
in the exercise of sovereign activity. From this perspective the absence of func-
tional immunity in respect of crimes against international law is obvious.
3.4 Concluding Observation

The parameters of coherent argument in the debate on functional immunity in
respect of gross human rights violations depend on the nature and the scope of
the rule of functional immunity. This section has argued that the current debate
is confused by the ‘act of state’ concepts prevalent in the law of state responsibility
and the law of state immunity.
Since the reliance on the two alternative concepts is not ‘general and
consistent’—it seems limited to common law legal systems for now—this study
regards it an interpretation of a rule of international law that is open to criti-
cism. The case law relied on in this study establishes that a different approach is
possible, and this chapter has attempted to establish why that approach should
prevail. It must of course be acknowledged that the law of state immunity ratione
materiae as understood in § 3.2 and 3.3 may be in the process of developing into a
rule of customary international law. However, it must be realized that the exten-
sion of the law of state immunity to include cases in which states are in no way
impleaded would require reliance on a different rationale than the equality and
independence of states. The application of the law of state immunity regardless
of the implication of the state seems to rest on an overbroad interpretation of the
scope of the law of state immunity.
In chapter 2 we cited Niboyet—‘comme l’anatomiste, il doit procéder à toutes
sortes de coupes et séparer les tissus les uns des autres pour restituer à chacun son
originalité propre’²⁰⁹—to support our argument that the law of state immunity
should be clearly distinguished from the immunity ratione personae of diplomats
and heads of state. The functional immunity of foreign state officials must be
approached with the same anatomical outlook. The application of the law of state
immunity to cases involving foreign state officials should be understood from
²⁰⁷ Jones v Saudi Arabia (UK, 2006) .

²⁰⁸ Cf for a discussion of this case ch 5, § 2.3.1.2.
²⁰⁹ JP Niboyet (1950) 158.
the perspective of—necessary—official capacity suits. The application shields

the underlying concept of functional immunity but should never be confused
with it.
4 Conclusions
This chapter has explained that foreign state officials enjoy functional immunity
in respect of official acts. Official acts are acts performed as an arm or mouth-
piece of a state in respect of which the state official that happened to perform the
act does not incur personal responsibility. These acts are in law acts of the state.
The idea that ‘State officials (and arguably former State officials) enjoy immun-
ity ratione materiae for their official acts from the jurisdiction of the courts of
other States, where the effect of the proceedings would be to undermine or ren-
der nugatory the immunity of the employer State’²¹⁰ is in itself not incompatible
with the perspective proposed in this study. However, it must be realized that the
immunity of the state is only undermined if a suit against the foreign state offi-
cial is an official capacity suit. Application of the law of state immunity is hence
only warranted when the claim (necessarily) regards the official in his official
capacity and the foreign state is in fact the defendant. As long as a state official
performs acts in the context of state authority under international law his acts are
presumed to have been committed on behalf of the home state. When however
an act is performed outside that context, an independent inquiry into the man-
date of the official may be undertaken. This explains the relevance of the limits
of the function of diplomatic and consular agents (exclusive competences) as well
as the relevance of the exclusive applicability of international law to certain acts
(rights and obligations under international law). A state may of course always
defeat the presumption of authority attaching to particular acts. It may in the
first place declare that contrary to appearances certain acts were in fact commit-
ted in excess of an official’s mandate (a posteriori, ad hoc defeat). Most pertinent
to our research question is the possibility that states agree on the international
level—in the form of a rule of international law—that certain acts are always
committed in excess of mandate (a priori, general defeat).
²¹⁰ C Wickremasinghe, ‘Immunities Enjoyed by Officials of States and International

Organizations’ in MD Evans (ed), International Law (2003) 387, 403.
4
Personal Immunity
1 Introduction
A limited group of state officials enjoys a comprehensive personal immunity from

the jurisdiction of foreign national courts during their term of office. This chap-
ter inquires into the personal immunity rules applicable to diplomatic agents
and heads of state. Unlike the rule of state immunity and the rule of functional
immunity, these rules do not need reformulation in order to understand the
nature and the substance of requirements under international law. This is not
to say that there are no controversies as to the scope of personal immunity rules.
These controversies manifest themselves, however, on an essentially distinct level.
Section 2 examines some controversial issues regarding the material and formal
scope of diplomatic and head of state immunity. In particular, the analogous
application of the rule of head of state immunity to ministers of foreign affairs in
the Arrest Warrant case warrants critical commentary.¹ The decision of the ICJ in
that case moreover impels reconsideration of the obligations of third states under
personal immunity rules.
The chapter concludes with a brief analysis of the nature of personal immun-
ity rules in section 3. This section prepares the ground for the chapters 5 and 6 to
follow. What are the parameters of coherent argument on the scope of these rules?
In contrast with the rule of state immunity and the rule of functional immunity
diplomatic immunity and head of state immunity are immunities from juris-
diction in the proper sense of the word. The rules apply independently from the
essential competence of the court or the individual responsibility of the defend-
ant. The rules are moreover conspicuous examples of customary international
law that relies on state practice and opinio juris for its formation. Accordingly,
the scope of these rules can only be determined through straightforward induct-
ive reasoning on the basis of state practice. In the absence of changing practice
proponents of a human rights exception to personal immunity rules must rely on
hierarchy of norms arguments. If these arguments fail to convince the debate on
the relation between international criminal law and international human rights
¹ Arrest Warrant of 11 April 2000 (ICJ, 2002) (further referred to as Arrest Warrant Case).
Personal Immunity 159
law and personal immunity rules necessarily takes the form of an exchange of
policy arguments.
2 The Scope of Diplomatic and Head of State Immunity
This section gives a brief overview of both the material scope (who is obliged to
do what) and the formal scope (who can claim the correlated right) of the rules
of diplomatic and head of state immunity respectively. The scope of the law of
diplomatic immunity is relatively uncontroversial—although some uncertainty
exists as to the position of ad hoc diplomatic missions. Head of state immunity
is more ambiguous. In particular, the immunity from civil jurisdiction and the
analogous application of the rule to heads of government and ministers of foreign
affairs are controversial issues.
2.1 Diplomatic Agents

2.1.1 Material Scope of the Immunity
The inviolability of diplomatic agents—or messengers, or heralds as they were
originally called—is one of the oldest rules of international law. Already in the
practice of the Hittites, Babylonians, Egyptians, Greek and Romans the person of
the diplomatic agent was regarded as sacred and inviolable.² The immunity they
enjoy from the jurisdiction of the receiving state is of a more recent date. In the
early Renaissance ambassadors were often subjected to civil suit and sometimes
even arrested and subjected to criminal law suits. In particular, it was sometimes
held that an ambassador could be brought before the local courts with regard to
commercial transactions undertaken by him after he embarked on his mission.
Gentili, for example, wrote in 1594 that ‘an ambassador should be subject to
legal procedure on every contract which he enters into during his embassy’.³ It
has been argued that this doctrine and practice relied on a misinterpretation of
Roman law, in which a revived interest existed at the time. Roman civil law was
² See M Ogdon, Juridical Bases of Diplomatic Immunity, A Study in the Origin, Growth and
Purposes of the Law (1936) 8; LS Frey and ML Frey, The History of Diplomatic Immunity (1999) for
an overview of early examples. Cf also G Tenékidès, ‘Droit international et communautés fédérales
dans la Grèce des cités’ (1956–II) 90 RdC 469; C Phillipson, The International Law and Custom of
Ancient Greece and Rome (1911); DJ Hill, A History of Diplomacy in the International Development
of Europe (1911) i 11ff.
The principle of inviolability is now laid down in art 29 of the Vienna Convention on Diplomatic
Relations, 500 UNTS 95: ‘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.’
³ A Gentili, De Legationibus Libri Tres (1594), trans by GJ Laing (Th ree Books on Embassies,
1924), Book II, Chapter XVI, nr 115. Cf also the Spanish and Portuguese legislation to this effect
described in M Ogdon (1936) 46.
predominantly concerned with the position of provincial legati rather than for-
eign diplomats. This distinction was however disregarded by several Renaissance
scholars, holding the exceptions developed in Roman law to the immunity of
legati applicable to foreign ambassadors.⁴
Although the practice in this field has not developed along clear and consist-
ent lines it is fair to say that the reliance on Roman law to promote a restrictive
immunity for foreign diplomats gradually passed out of use. The state system
that emerged in late-Renaissance Europe was dominated by notions of ceremony,
dignity and comity. More and more the ambassador was seen to be the direct
representative, or even the personification of the monarch that had sent him. The
criminal immunity of ambassadors even when a crime against the receiving state
had been committed, was accepted at an early stage. For example, when, in 1584,
it was found out that the Spanish ambassador in England, Mendoza, had par-
taken in a conspiracy against Queen Elizabeth, he was not arrested but remanded
to his sovereign.⁵ Today diplomatic agents enjoy an almost absolute immunity
from the civil jurisdiction of the receiving state as well.⁶
The theory of representation—that would root the rule in the same principles
that underlie the immunity of the state—is no longer accepted.⁷ The well-nigh
absolute immunity from jurisdiction that diplomatic agents enjoy in the state in
⁴ M Ogdon, ibid 42.

⁵ See for other examples M Ogdon, ibid 56. Cf E Denza (1998) 229 for a succinct overview of
developments.
⁶ The English Diplomatic Privileges Act 1708 (Anne’s Law) already did not allow actions against
foreign diplomats in respect of their commercial activity. In the famous case of Taylor v Best decided
in 1854, Jarvis CJ had held that ‘if the privilege does attach, it is not, in the case of an ambassador
or public minister, forfeited by the party’s engaging in trade, as it would . . . in the case of an ambas-
sador’s servant. If an ambassador or minister, during his residence in this country, violates the char-
acter in which he is accredited to our court by engaging in commercial transaction, that may raise
a question between the government of this country and that of the country by which he is sent;
but he does not thereby lose the general privilege which the law of nations has conferred upon per-
sons filling that high character.’ Taylor v Best 14 CB 487 (UK, 1854) 519. Cf also Magdalena Steam
Navigation Company v Martin 2 El & El 94 (UK, 1859) 116, where Campbell CJ concluded that ‘[i]t
certainly has not hitherto been expressly decided that a public minister duly accorded to the Queen
by a foreign State is privileged from all liability to be sued here in civil actions; but we think that
this follows from well established principles.’ Italy was one of the last countries to deny diplomatic
immunity for private acts. Cf Ricorrente Rinaldi (1915) 9 RDI 215 (Italy, Corte di Cassazione di
Roma, 1915); Comina v Kite (1924) 16 RDI 173 (Italy, Corte di Cassazione di Roma, 1922). In reac-
tion to this latter case the diplomatic corps in Rome complained to the Italian Foreign Office, repro-
duced in The Harvard Draft Convention on Diplomatic Privileges and Immunities, Harvard Law
School, Research in International Law (Reporter JS Reeves), Diplomatic Privileges and Immunities,
(1932 supplement) 26 AJIL 15, 105. The Italian Court of Cassation finally converted to the rule of
absolute immunity, cf De Meeüs v Forzano (1940) 32 RDI 93 (Italy, Corte di Cassazione, 1940); cf
earlier Harrie Lurie v Steinmann (1928) 20 RDI 528 (Italy, Tribunale di Roma, 1927).
⁷ Cf eg Aldona S v Royaume Uni (1963) 90 JDI 191 (Poland, S Ct, 1948): ‘the immunity of State
has a different juridical basis from that of diplomatic agents. The immunity of representatives of a
foreign State has the object of safeguarding their liberty in the exercise of their functions, whilst
the immunity of the State is juridically based on the democratic principle of their equality.’ See dif-
ferently S Sucharitkul (1976) 97 who wrote that ‘[i]n the ultimate analysis, the basis of diplomatic
immunity can now be regarded as identifiable with that of sovereign or State immunities.’
which they exercise their functions is today considered necessary to ensure the
free and independent performance of diplomatic functions—ne impediatur lega-
tio. Vattel already commented that
ambassadors and other public ministers are necessary instruments in the maintenance of
that general society of Nations and of that mutual intercourse between them. But they
can not accomplish the object of their appointment unless they are endowed with all
prerogatives necessary to perform the duties of their charge safely, freely, faithfully and
successfully. Consequently, [nations are obliged] to accord them all the rights they require
and all the privileges necessary for the performance of their duties.⁸
The French Cour de Cassation formulated the generally accepted rationale of
diplomatic immunity as follows:
Si chaque fois que l’agent diplomatique agit comme personne privée, il tombe sous la
juridiction des tribunaux français, ses créanciers pour peu qu’il en ait, le traqueront sans
miséricorde et pourront entraver, tantôt par des demandes légitimes, tantôt par des mau-
vaises chicanes, l’exercice de sa mission; on retombe ainsi dans l’inconvénient que le droit
des gens voulait éviter: ne impediatur legatio.8a
Diplomatic immunity—with its functionality rationale—is not to be confused
with the concept of functional immunity. It was explained in chapter 3 of this
study that all (former) state officials enjoy functional immunity in respect of offi-
cial acts. Diplomatic immunity is more comprehensive. It applies to diplomatic
agents sued in respect of official and non-official acts alike. The ne impediatur
legatio rationale extends to the ‘private’ acts of diplomatic agents because, as the
Italian Court of Cassation put it in De Meeüs v Forzano, private acts ‘constitute
the necessary basis for the exercise of public activities’.⁹
The rule does not affect the liability of the diplomatic agent. As Lord Diplock
emphasized in Empson v Smith ‘[i]t is elementary law that diplomatic immunity
is not immunity from legal liability but immunity from suit’.¹⁰ Since personal
liability is lacking in regard to official acts it has at times been argued that diplo-
matic immunity applies only to the non-official acts of diplomatic agents. Kunz,
for example, reasoned that ‘the exemption from local jurisdiction of diplomatic
agents pertains exclusively to the private acts of diplomatic agents. Their exemp-
tion from local jurisdiction for their official acts has nothing to do with dip-
lomatic privileges and immunities; their official acts are “acts of State” and are
legally imputed not to them but to the sending State.’¹¹ This reasoning has been
⁸ E De Vattel (1758) iii trans by CG Fenwick (The Law of Nations, 1983) 376.
⁸ Errembault de Dudzeele (France, Cour de cassation, 1891) 18 JDI 1891 137.
⁹ De Meeüs v Forzano (Italy, 1940) 94 (my translation): ‘costituiscono il substrato materiale
necessario per lo svolgimento delle attività pubbliche’, cf also 9 AD 423, case no 164.
¹⁰ Empson v Smith (UK, 1965) 886; 41 ILR 407, 414. Cf also Dickinson v Del Solar (UK, 1929)
380; 5 AD 299, case no 190, 299.
¹¹ JL Kunz, ‘Privileges and Immunities of International Organizations’ (1947) 41 AJIL
828, 838.
especially popular in Italian doctrine and case law.¹² The argument disregards,
however, the logical order in which the two issues should be considered by the
courts. The rule of functional immunity requires an inquiry into the nature of the
alleged acts. Diplomatic immunity should therefore be seen to apply in precedence
of functional immunity. As Morelli pointed out, diplomatic immunity prevents
any finding on the merits, positive or negative.¹³ One Italian court explained that
on the procedural plane priority—not prevalence—was given to the rule of dip-
lomatic immunity.¹⁴ Accordingly, while the rule of diplomatic immunity does
not entail non-liability; this does not mean that the principle of non-personal
liability may not be cloaked by the rule. Dinstein aptly put it when he wrote that
during a diplomatic agent’s term of office, functional immunity is ‘eclipsed by
the shadow of the personal immunity’.¹⁵ The activity of a diplomatic agent may
only be examined if a prima facie case is made that one of the—very limited—
exceptions to the rule applies.
The immunity of diplomatic agents accredited to a permanent diplomatic mis-
sion is authoritatively codified in the 1961 Vienna Convention on Diplomatic
Relations.¹⁶ The Convention was mainly a codification of existing diplomatic
¹² Cf Società Arethusa Film v Reist (Italy, 1953) 546; D Anzilotti, ‘Case Comment’
(1912) 6 RDI 501, 501; D Anzilotti, ‘Case Comment’ (1915) 9 RDI 217, 219; A
Cavaglieri, ‘Règles générales du droit de la paix’ 1929–I 26 RdC 311, 470; T Perassi,
‘Su l’esenzione degli agenti diplomatici dalla giurisdizione’ (1940) 32 RDI 95; A Malintoppi (1954)
121; A Malintoppi (1955) 90; L Condorelli, ‘Le immunità diplomatiche e I principi fondamentali
della Costituzione’ (1979) 24–I Giurisprudenza Costituzionale 455, 456; In the third edition of
his Diritto internazionale (1987, 221) Conforti still writes that it is for the private acts of diplo-
matic agents that the real and genuine immunity from jurisdiction is foreseen—a formulation
that no longer appears in the sixth edition (2002) (cf 230). Cf also M Adatci and C De Visscher
(Rapporteurs Institut de Droit International), Rapport sur l’Interprétation de l’article 7, al. 4, du
Pacte de la Société des Nations (Privilèges et Immunités Diplomatiques des Agents de la Société des
Nations), (1924) 31 AIDI 1, 9–10; H Kelsen (1952) 229–31.
¹³ G Morelli (1954) 201–4. Cf also A Tanzi (1991) 10.
¹⁴ Soc Vivai Industriali v Legazione dell’Arabia Saudita (Italy, 1953) 84. The court hence sided
with Morelli and rejected the approach of the scholars mentioned under n 12.
¹⁵ Y Dinstein (1966b) 79.
¹⁶ Vienna Convention on Diplomatic Relations (1961) 500 UNTS 95. The Convention was pre-
pared within the ILC, see ILC Draft Articles Concerning Diplomatic Intercourse and Immunities,
YBILC 1958 ii 16. Earlier attempts to codification are: The Vienna Regulations (1815); The
Règlement sur les immunités diplomatiques of the Institut de Droit International (1895), repro-
duced and trans as Appendix 3 to the Harvard Draft Convention on Diplomatic Privileges and
Immunities, Harvard Law School, Research in International Law (Reporter JS Reeves), Diplomatic
Privileges and Immunities, (1932 supplement) 26 AJIL 15, 162ff; The Project of the American
Institut de Droit International on Diplomatic Agents (Project no 22 1925), reproduced as Annex
5 to the Harvard Draft Convention on Diplomatic Privileges and Immunities, ibid 168ff; The
Project of the International Commission of American Jurists (1927), reproduced as Appendix 6 to
the Harvard Draft Convention on Diplomatic Privileges and Immunities, ibid 171ff; The Havana
Convention on Diplomatic Officers (1928), 86 LNTS 111, and reproduced as Appendix 7 to the
Harvard Draft Convention on Diplomatic Privileges and Immunities, ibid 175ff; The Harvard
Draft Convention on Diplomatic Privileges and Immunities, Harvard Law School, Research in
International Law (Reporter JS Reeves), Diplomatic Privileges and Immunities, (1932 supplement)
26 AJIL 15.
practice but also contains some provisions that constituted ‘a progressive devel-
opment of the law’.¹⁷ Since then the Convention has been ratified by some hun-
dred and eighty states and it can by now be safely stated that it reflects customary
law in the field.¹⁸ The material scope of diplomatic immunity from jurisdiction
will therefore be discussed on the basis of the relevant provisions of the Vienna
Convention.¹⁹
Article 31.1 of the Convention lays down the rule on immunity from
jurisdiction:
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 relating to private immovable property situated in the territory of the
receiving State, unless he holds it on behalf of the sending State for the purposes of
the mission.
(b) an action relating to succession in which the diplomatic agent is involved as executor,
administrator, heir 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 diplo-
matic agent in the receiving State outside his official functions.
While the principle of inviolability does not exclude coercive measures to pre-
vent the commission of crimes in exceptional circumstances, the immunity from
the criminal jurisdiction of the courts of the receiving state in respect of com-
mitted crimes is absolute.²⁰ The only sanction available to the receiving state is
to declare a diplomatic agent persona non grata in accordance with article 9 of
the Convention. The sending state must then either recall the diplomatic agent
concerned or terminate his functions with the mission.
¹⁷ Cf R Jennings and A Watts (eds) (1992) i 1070, § 490.

¹⁸ In this sense eg J Dugard, International Law, A South African Perspective (2000) 192;
I Brownlie, (2003) 351. Already in 1969 the Supreme Court of Chile held that ‘[t]he fact that the
Republic of China has not yet ratified the Vienna Convention does not prevent the application of
Article 31 in our country because it is a principle of international law, common and customary, that
this provision has crystallized, being only an expression of it’, MH v Embassy of the Republic of China
70 ILR 394 (Chile, SCt, 1969). Cf also Case Concerning United States Diplomatic and Consular Staff
in Tehran (United States of America v Iran) (Judgment), ICJ Reports 1980 3, 40, § 86.
¹⁹ The issue of ad hoc diplomatic missions is further discussed at § 2.1.2.2 below.
²⁰ Cf for the limited exception to the principle of inviolability eg arts 6.3 and 16 of the Resolution
of the Institut de Droit International (1895), reproduced as Appendix 3 to the Harvard Research
Draft Convention on Diplomatic Immunities, Harvard Law School, Research in International
Law (Reporter JS Reeves), Diplomatic Privileges and Immunities, (1932 supplement) 26 AJIL 15,
162; YBILC 1957 i 97, 209–10 and ii 131, 138; YBILC 1958 ii 97. The ICJ remarked in this regard
that the principle did not mean ‘that a diplomatic agent caught in the act of committing an assault
or other offence may not, on occasion, be briefly arrested by the police of the receiving State in
order to prevent the commission of the particular crime’ Case Concerning United States Diplomatic
and Consular Staff in Tehran (ICJ, 1980) 40, § 86.
The immunity from civil jurisdiction, on the other hand, is subject to three
exceptions. Their scope is however very limited. Diplomatic agents are immune
in respect of all the normal day-to-day activity in which they engage. It is this
aspect of diplomatic immunity that most obviously negatively affects the inter-
ests of the citizens of the receiving state.²¹ Even though immunity and impunity
are formally distinct, in practice diplomatic immunity is often a critical stum-
bling block to a judicial settlement of civil disputes.
The receiving state can of course ask the sending state to waive the immunity
of its diplomatic agent. Though a personal immunity, diplomatic immunity is
not a personal right of the diplomatic agent. Rather, it appertains to the send-
ing state. That state—and not the diplomatic agent—can hence dispose of the
right.²² Sending states are, however, not generally complaisant in this respect.
Notably, a resolution annexed to the Final Act of the Vienna Conference on
Diplomatic Relations urging states to adopt a benevolent waiver policy in respect
of civil claims, did not enjoy wide support.²³
In principle, the rule of diplomatic immunity entails rights and obligations for the
sending and the receiving state only. It applies, in other words, not erga omnes. Third
states are only obliged to accord inviolability and such other immunities as may be
required to ensure the transit of diplomatic agents that proceed to take up or return
to their post or return to the sending state.²⁴ The same obligations apply in respect of
diplomatic agents that are present in the territory of a third state due to force majeure,
the textbook example being the forced landing or diversion of an aircraft.²⁵ It will be
explained in section 2.3 below that the decision of the International Court of Justice
in the Arrest Warrant case compels reconsideration of conventional wisdom regard-
ing the obligations of third states under personal immunity rules.
2.1.2 Formal Scope of the Immunity

2.1.2.1 Diplomatic agents during their term of office
The immunity rules introduced above are those that apply to diplomatic agents—ie
the head of the mission and members of the diplomatic staff.²⁶ Diplomatic agents
²¹ In ch 6 § 3.4 of this study it will be argued that the immunity from penal jurisdiction may
affect the rights of other individuals as well.
²² Art 32.1 of the Convention provides that ‘[t]he immunity from jurisdiction of diplomatic
agents . . . may be waived by the sending State’.
²³ Resolution II on ‘Consideration of Civil Claims’ annexed to the Final Act. The resolution
recommends that a sending state waives immunity ‘in respect of civil claims of persons in the
receiving State when this can be done without impeding the performance of the functions of the
mission’. It moreover states that ‘in the absence of waiver the sending State should use its best
endeavours to bring about a just settlement of claims’.
²⁴ Art 40.1 VCDR.
²⁵ Art 40.4 VCDR.
²⁶ Art 1.e VCDR. The rules on diplomatic immunity apply to members of the family of the
diplomatic agent forming part of his household, provided that they are not nationals of the receiv-
ing state, cf arts 37.1 and 40.1 VCDR. The Vienna Convention does not provide a more precise
definition of the individuals that may be covered by this rule. In general practice it is accepted that
that are nationals of the receiving state or permanently resident in that state how-
ever are not covered by the rule. Such an agent is only immune (and inviolable)
‘in respect of official acts performed in the exercise of his functions’, unless the
receiving state grants additional privileges and immunities.²⁷
The receiving state must give an explicit agrément for the person the sending
state proposes to accredit as head of the mission. Agrément may be withheld with-
out giving reasons. As a general principle, the rest of the staff of the mission may
be freely appointed by the sending state, with the general caveat that the receiv-
ing state has the discretion to declare a particular diplomatic agent persona non
grata—also ahead of the arrival of the agent, effectively blocking the appoint-
ment of that person to the mission.²⁸ A specific caveat applies to persons having
the nationality of the receiving state. Such persons may only be appointed as a
member of the diplomatic staff of a mission with the consent of the receiving
state.²⁹ Having regard to the circumstances and conditions in the receiving state
and the needs of the particular mission the receiving state may moreover require
that the size of the mission be kept within limits considered reasonable and nor-
mal by the receiving state and may, on a non-discriminatory basis, refuse to accept
officials of a particular category.³⁰
Diplomatic immunity ends when a diplomatic agent ends his functions as a
member of the mission in the receiving state. The immunity in respect of acts
performed by the agent in the exercise of his functions subsists however—as
laid down in article 39.2 of the Convention. It was explained in chapter 3 of
this study that this immunity is not a privilege peculiar to diplomatic agents. It
regards the rule of functional immunity applicable erga omnes and to all (former)
state officials alike. This immunity ratione materiae only gains relevance after the
diplomatic agent has ended his duties in the receiving state but clearly existed
all along, cloaked by the more comprehensive concept of diplomatic immunity
ratione personae.³¹
The German Bundesverfassungsgericht has suggested otherwise. In a case
against the former Syrian Ambassador to the German Democratic Republic it
approached article 39.2 as an exclusive privilege part of the law of diplomatic
immunity.³² The case concerned the following. In 1983 a bomb exploded in
at least the spouse of a diplomat and his children below the age of majority are included. Beyond
this minimum states apply different rules.
²⁷ Art 38.1 VCDR. In addition a different—more restrictive—regime applies to private
servants and members of the administrative, technical and service staff, cf arts 37 and 38.2
VCDR.
²⁸ Arts 7 and 9 VCDR.
²⁹ Art 8.2 VCDR.
³⁰ Art 11 VCDR.
³¹ Y Dinstein (1966b) 79. Cosnard remarked in this regard that ‘la fonction change de rôle:
d’attributive, elle devient distributive’, M Cosnard (1996) 59.
³² Former Syrian Ambassador to the German Democratic Republic (Federal Republic of Germany,
1997). Cf also M Tomonori (2003) 121.
West Berlin, causing one casualty and several serious injuries. The terrorist group
which carried out the attack had been allowed to briefly store the explosives at
the Syrian Embassy in the German Democratic Republic, in accordance with
the specific instructions from the Syrian government to its Ambassador ‘to do
everything possible to assist the group’. The Ambassador refused to transport the
explosives to West Berlin with the Embassy bag, but did not prevent the terrorist
from taking the explosives and arranging the transport themselves, and did not
alert the West German authorities. After reunification of the two Germanies an
arrest warrant was issued against the—by then former—Ambassador charging
him with being an accessory to murder and the causing of an explosion.
The court accepted that the Ambassador had acted in the exercise of his official
functions as a member of the mission. It argued that article 39.2 shields former
diplomatic agents from the jurisdiction of the former receiving state in respect of
acts that are attributable to the sending state. ‘Judicial proceedings’, it reasoned,
‘come, in their effects, close to proceedings against the sending State . . . [diplo-
matic immunity] serves to protect the sending State itself.’³³ An exception for
serious crimes was considered incompatible with the ‘meaning of diplomatic
immunity’ since that immunity applies exactly when the diplomatic agent violates
the law of the receiving state. ‘If a criminal act was never considered as official’,
the court argued, ‘there would be no substance to continuing immunity’.³⁴ It was
asserted that since the law of diplomatic immunity is a self-contained regime,
sanctions against a diplomatic agent are limited to those foreseen in diplomatic
law.³⁵
The court concluded that the former Ambassador could nevertheless be sued
before the German courts. As a consequence of the characterization of article
39.2 as part of diplomatic immunity the scope of the protection granted became
more limited as well as more comprehensive. Diplomatic law, the court pointed
out, does not apply erga omnes. It only prevents the exercise of jurisdiction by the
courts of the receiving state.³⁶
³³ Ibid 605–6. Interestingly, the court relied on the dubious use of the concept of immunity
ratione materiae in the field of state immunity to replace the concept of immunity ratione materiae
as it originates in the law of functional immunity (606).
³⁴ ibid 606 (emphasis added).
³⁵ ibid 607–8.
³⁶ ibid 610–12. This—within the context of the chosen approach coherent—argument was sup-
ported by unfortunate reasoning. The court considered: ‘Were this continuing immunity to apply
vis-à-vis third States, the diplomat would be subject to the jurisdiction of the third State for his
official acts during the period of his office, but suddenly immune with respect to the same official
acts upon termination of the mission. Consequently, according to Article 39(2), second sentence,
of the VCDR, immunities would no longer just continue to subsist, but would actually come into
existence with worldwide effect. The proposition that a diplomat should enjoy a wider immunity
after the termination of his mission than before contradicts the basic conception of the law of dip-
lomatic immunity enshrined in Article 39(2) of the VCDR’ (612–13). However, if art 39.2 were to
apply erga omnes, the immunity for official acts of course applied erga omnes before the end of the
functions as well.
It must first be pointed out that even within the given parameters the court’s
reasoning is not convincing. Did the court mean to argue that foreign states are
immune in respect of incidental criminal activity undertaken outside the scope of
normal functions of a diplomatic mission but on orders of the state? This author
would argue that in this respect there is no difference between an order to a secret
agent—as in the Letelier case—and an order to a diplomatic agent.³⁷
More pertinent however is the critique that the reasoning proceeds from the
wrong parameters. It is commonly agreed that article 39.2 VCDR is not part of
diplomatic law. Rather, it lays down the rule of functional immunity as it applies
erga omnes and to all foreign state officials alike. While diplomatic immunity
indeed applies regardless of the nature of the act, it was explained in chapter 3 of
this study that normative limits do apply to the rule functional immunity. It is
hard to see how the alleged crimes of the former Syrian Ambassador could qual-
ify as official. The alleged crimes were not performed within the context of the
exercise of state authority under international law and do hence not fall within
the discretion of the sending state.³⁸
2.1.2.2 Ad hoc diplomatic missions

In the course of their international relations states frequently resort to sending
ad hoc diplomatic missions abroad. One should think of bilateral or multilateral
negotiations between government officials or the representation at ad hoc con-
ferences, government trade delegations, and official visits of high ranking state
officials like a minister of foreign affairs meeting his foreign counterpart, or a
head of government invited to attend a funeral abroad in his official function.
Before the institute of permanent diplomatic missions gradually gained ground
from the second half of the fifteenth century onwards, ambassadors were always
persons on a temporary mission, proposing peace or strategic alliance against a
common enemy, seeking military support and so on.³⁹ With increasing inter-
national cooperation and technological developments facilitating swift travel,
shuttle diplomacy regained prominence over the twentieth century.⁴⁰
³⁷ Letelier v Chile (US, 1980), cf ch 2 § 3.2.1 above.

³⁸ Cf for critical comments on the case eg B Fassbender, ‘Case Comment’ (1998) 92 AJIL 74;
K Doehring and G Ress, ‘Diplomatische Immunität and Drittstaaten, Überlegungen zur erga
omnes Wirkung der diplomatische Immunität und deren Beachtung im Fall der Staatensukzession’
(1999) 37 Archiv des Völkerrechts 68.
³⁹ Even though temporary missions could last for several years, their duration was always
dependent on the fulfi lment of the specific objective they had been sent for. The Italian free states
started sending permanent missions and this practice quickly spread to other European states.
It has been observed that before that, representative institutions within the Roman Empire—
the legati—and the Christian Church resembled the later permanent diplomatic missions. Cf
M Ogdon (1936) 23.
⁴⁰ M Bartoš, ‘Le statut des missions speciales de la diplomatie ad hoc’ (1963–I) 108 RdC
425, 440.
Scholars generally agree that ‘clear and comprehensive rules of customary
international law’ on the immunity of temporary diplomatic missions are lack-
ing.⁴¹ In 1969 the General Assembly adopted the Special Missions Convention—
modelled on the 1961 Vienna Convention.⁴² The Convention failed to secure
widespread support and the provisions granting the same immunity to tempor-
ary missions as to permanent missions are not accepted as representing customary
international law.⁴³ The principal problem with the Special Missions Convention
is that it treats all technical, administrative, and political missions alike.⁴⁴ Early
codifications of the law of diplomatic immunity commonly included both per-
manent and temporary diplomatic agents⁴⁵ and it cannot be denied that a form
of diplomatic immunity does in fact apply to ad hoc political missions accred-
ited to the receiving state.⁴⁶ In particular, it is generally agreed that diplomatic
immunity applies to all official missions abroad of the head of state, the head of
government, and members of the cabinet—with the minister of foreign affairs as
conspicuous example.⁴⁷
⁴¹ R Jennings and A Watts (eds) (1992) i 1127, § 533. Cf also M Bartoš, ibid 434;
MR Donnarumma, La diplomazia ad hoc (1968); MR Donnarumma, ‘La Convention sur les mis-
sions speciales’ (1972) 8 RBDI 34, 79; P Cahier, Le droit diplomatique contemporain (1962) 362;
MH Ryan, ‘The Status of Agents on Special Missions in Customary International Law’ (1978) 16
Canadian Yearbook of International Law 157, 160; I Brownlie (2003) 357.
⁴² United Nations Convention on Special Missions (1969), Annex to UNGA Resolution 2530
(XXIV) of 8 December 1969, 1400 UNTS 231. The Convention was based on the ILC Draft
Articles on Special Missions, YBILC 1967 ii 347–68 and entered into force 21 June 1985.
⁴³ Cf art 31.
⁴⁴ In this sense J Salmon (1994) 546; MH Ryan (1978) 186; M Waters, The Ad Hoc Diplomat:
A Study in Municipal and International Law (1963) 170. Arguably, the Convention fails moreover
to reflect the differences in functionality considerations applicable to temporary missions as com-
pared to permanent missions. Art 37 extends the immunity rules to family members accompany-
ing the diplomatic agent just like art 37 VCDR.
⁴⁵ In the commentary to the Harvard Draft Convention on Diplomatic Privileges and
Immunities (Reporter JS Reeves) we read that the convention applies to every ‘diplomatic group,
whatever be the permanency of its tenure or its official rank (embassy, legation, special missions) . . .
The term is broad enough to include special missions of a political or ceremonial character which
are accredited to the government of the receiving state. Members of special missions probably enjoy
the same privileges and immunities as those of permanent missions.’ (1932 supplement) 26 AJIL
15, 42. Cf also arts 2 and 12 of the Règlement sur les immunités diplomatiques of the Institut de
Droit International (1895), reproduced and translated as Appendix 3 to the Harvard Draft
Convention on Diplomatic Privileges and Immunities, ibid 162ff; Arts 2 and 14 of the Project of the
American Institut de Droit International on Diplomatic Agents (Project no 22 1925), reproduced
as Annex 5 to the Harvard Draft Convention on Diplomatic Privileges and Immunities, ibid 168ff;
Arts 2 and 14 of the Project of the International Commission of American Jurists (1927), repro-
duced as Appendix 6 to the Harvard Draft Convention on Diplomatic Privileges and Immunities,
ibid 171ff; Arts 2 and 9 of the Havana Convention on Diplomatic Officers (1928), 86 LNTS 111
and reproduced as Appendix 7 to the Harvard Draft Convention on Diplomatic Privileges and
Immunities, ibid 175ff.
⁴⁶ Notably, the ILC stated that the articles on immunity and privileges reflected an already
existing obligation, not mere courtesy: YBILC 1967 ii 347, 358.
⁴⁷ Cf Gore-Booth (ed), Satow’s Guide to Diplomatic Practice (5th edn, 1979) 157.
2.2 Heads of State

2.2.1 Material Scope of the Immunity
Heads of state enjoy an absolute immunity from foreign criminal jurisdic-
tion. While some scholars have argued that the immunity only applies when a
head of state is present on foreign territory or even only when a head of state
is present on foreign territory while on an official visit, the immunity is today
commonly accepted to apply without such restrictions.⁴⁸ In other words, the
absolute immunity from criminal jurisdiction of foreign heads of state applies
erga omnes—as does the rule ensuring their inviolability. Most of the recent state
practice deals with the influence of international criminal law on the scope of the
immunity and will be later examined in chapter 5 of this study.⁴⁹
In comparison, the extent of the head of state’s immunity from foreign civil
jurisdiction is subject to considerable academic and judicial controversy. Some
argue that no such immunity ratione personae exists, others that this is limited
to official visits of a head of state abroad, and a third group maintains that this
immunity is at least subject to certain exceptions.
Early case law involving foreign heads of state did not support a rule of personal
immunity from civil jurisdiction.⁵⁰ It is recalled that in The Schooner Exchange
Chief Justice Marshall alluded to the double capacity of personal sovereigns. He
suggested that ‘there is a manifest distinction between the private property of
the person who happens to be the prince, and that military force which sup-
ports the sovereign power, and maintains the dignity and the independence of
a nation. A prince, by acquiring private property in a foreign country, may pos-
sibly be considered as subjecting that property to the territorial jurisdiction; he
may be considered as so far laying down the prince, and assuming the character
of a private individual; but this he cannot be presumed to do with respect to
any portion of that armed force, which upholds his crown, and the nation he
⁴⁸ See eg H Fox (2002) 441; A Watts, (1994) 54; J Salmon (1994) 599; P Cahier (1962) 338;
H Damian, Staatenimmunität und Gerichtszwang, Grundlagen und Grenzen der völkerrechtlichen
Freiheit fremder Staaten von inländischer Gerichtsbarkeit in Verfahren der Zwangvollstreckung oder
Anspruchsicherung (1985) 76; Bacchelli v Commune di Bologna F It 1978 I, 804 (Italy, Corte di
Cassazione, 1978) reproduced in (1978–79) 4 IYBIL 137; Marcos and Marcos v Federal Department
of Police 102 ILR 198 (Switzerland, Federal Tribunal, 1989) 202; R v Bow Street Metropolitan
Stipendiary Magistrate and others, ex p Pinochet Ugarte (Amnesty International and others interven-
ing) (UK, 1999) (Pinochet no 3); Institut de Droit International, Resolution on the Immunities
from Jurisdiction and Execution of Heads of State and of Government in International Law
(Résolution sur les immunités de juridiction et d’exécution du chef d’Etat et de gouvernement en
droit international), (2001), (2000–01) 69 AIDI 743. Cf for early doctrine and state practice eg
D Anzilotti, (1910) 519; L Oppenheim, International Law, A Treatise (2nd edn, 1912) 590; L Van
Praag (1915) 447.
⁴⁹ Cf ch 5 § 2.3.2.1 below.
⁵⁰ Cf eg C Calvo, Le droit international théorique et pratique (5th edn, 1896) iii 287ff, § 1461ff.
is entrusted to govern.’⁵¹ Other early state immunity cases also alluded to this
distinction. In chapter 2 of this study we saw that claims against the state were
often instigated against the personal foreign sovereign in his public capacity.
The fact that the courts in Duke of Brunswick v King of Hanover and De Haber v
Queen of Portugal thought it important to emphasize that the foreign sovereign
was not sued in a private capacity allows the tentative conclusion that were this
otherwise no immunity would be available.⁵² French courts equally emphasized
the public capacity of the head of state, or the public authority exercised by him
when granting immunity to foreign heads of state before them. In the 1870 case
of Ministère Public v Dlle Masset, a French national with a commercial enter-
prise in Russia, sued the Russian Tsar for damages suffered from alleged illegal
seizures, arrests, and vexation committed by the Russian police on Russian ter-
ritory. Unsurprisingly the court refused to engage in the claim brought before it,
reasoning as follows:
Considérant que l’indépendance réciproque des Etats est consacrée par le droit des gens;
que chaque Etat est souverain sur son territoire, y exerce la justice qui est un attribut de
la souveraineté et délègue à des tribunaux cette justice, investie des droits de juridiction
et de commandement nécessaires pour rendre et faire exécuter ses décisions; Qu’il suit de
ces principes qu’on ne peut citer devant les tribunaux d’un pays le souverain d’un autre
pays, non plus que les agents de la puissance publique qu’il représente; Que prétendre les
soumettre à la justice, c’est-à-dire au droit de juridiction et de commandement du juge
d’un pays étranger, ce serait évidemment violer une souveraineté étrangère et blesser en
cette partie le droit des gens.⁵³
The operation of a state’s justice system within its own territory was considered
an attribute of state sovereignty and no foreign state nor the agents that represent
that state could be sued before the French courts in respect to it. Two years later
the same court heard a case against the emperor of Austria, as heir of the emperor
of Mexico Maximilien, involving a contract concluded by the latter for the com-
mission of decorations destined to honour persons for their merit to the public
services. The court again refused to exercise jurisdiction considering
qu’il est de principe, à raison de l’indépendance réciproque des Etats, que les tribunaux
français n’ont pas juridiction pour juger les engagements contractés par les souverains
étrangers agissant comme chefs d’Etat au titre de la puissance publique.⁵⁴
⁵¹ The Schooner Exchange v M’Faddon (US, 1812) 144–5. It is noted that counsel for France did
concede this point, cf 123.
⁵² Cf ch 2 p 25 above.
⁵³ Ministère Public v Dlle Masset A-C Kiss, Répertoire de la pratique française en matière de droit
international public (1965) iii 269 (France, Cour de Paris, 1870).
⁵⁴ L’Empereur d’Autriche v Lemaitre (France, 1872); A-C Kiss, Répertoire de la pratique française
en matière de droit international public (1965) iii 269, no 456, 270 (emphasis added). Cf also Petau v
Honore de Grimaldi, Prince de Monaco (France, 1810).
The 1916 case of Wiercinski v Seyyid Ali Ben Hamond did in fact make clear that
foreign heads of state were not entitled to additional immunity ratione personae
from civil proceedings before French courts.⁵⁵ The former Sultan of Zanzibar
had failed to satisfy the bills of a masseur. When civil proceedings were instigated
against him, he argued that as a former sovereign he enjoyed the same immun-
ity as a reigning sovereign and that the French courts should therefore refuse to
exercise jurisdiction over the claim. The court rejected the analogy argument but
critically added
que même cette justification fût-elle produite, ce moyen ne saurait être accueilli; qu’en effet
si le principe de l’indépendance réciproque des Etats exclut la juridiction des Tribunaux
français à l’égard des souverains étrangers . . . cette exception doit être restreinte au cas
où le souverain est assigné à raison d’engagements contractés en qualité de chef du gou-
vernement, les motifs qui la justifient n’existant pas au dehors de ce cas, mais elle ne peut
être étendue à ceux où le souverain a agi ainsi que dans l’espèce comme personne privée et
dans un intérêt personnel . . .⁵⁶
The services rendered to the Sultan were hence qualified as belonging to the pri-
vate rather than the public sphere and immunity was held to be absent even if he
would be able to rely on the same measure of protection after as before his abdica-
tion. The same flows from the following considerations of the Court of Algiers in
Ben Aïad v Bey de Tunis
suivant un principe de droit international universellement admis, les souverains et chefs
d’Etat participent de l’indépendance de l’Etat dont ils sont les représentants; Att. que
placés en quelque sorte au-dessus des lois de tout Etat étranger, ils ne peuvent être soumis
à aucune juridiction autre que celle de leur propre nation; Att. que cette règle ne souff re
d’exception que lorsque: 1 seuls les intérêts privés sont en litige ; 2 lorsque le chef d’Etat a
lui-même renoncé à se prévaloir des prérogatives de sa souveraineté.⁵⁷
In a similar vein, the Italian Corte di Cassazione refused to grant immunity to the
Emperor of Austria.⁵⁸ The court held that the claim before it did not relate to acts
done by the Emperor as head of state but rather to acts of a private nature that
arose in Italy.
The cited cases only support immunity from civil jurisdiction to foreign
heads of state when they have acted in their official capacity as head of state.
This immunity however does not follow from ratione personae considerations but
⁵⁵ Wiercinski v Seyyid Ali Ben Hamond (1917) 44 JDI 1465 (France, Tribunal civil de la Seine,
1916); A-C Kiss, Répertoire de la pratique française en matière de droit international public (1965)
iii 270, no 457.
⁵⁶ ibid 1465–6.
⁵⁷ Ben Aïad v Bey de Tunis (1914) JDI 1290 (France, Cour d’Alger, 1914) 1291; A-C Kiss,
Répertoire de la pratique française en matière de droit international public (1965) iii 271, no 460.
Cf also Bey de Tunis v Mahmoud ben Aïad: A-C Kiss, Répertoire de la pratique française en matière de
droit international public (1965) iii 272, no 461 (France, Cour d’appel de Paris, 1893).
⁵⁸ Carlo d’Austria Este v Nobili (Italy, 1921).
concerns functional immunity ratione materiae and the consequent application
of the law of state immunity as discussed in chapter 3 of this study.
It was in the common law countries that the idea of immunity ratione per-
sonae from civil proceedings was first developed. This immunity was seen to pro-
tect a foreign head of state regardless of the private nature of the acts involved,
the private purpose of his travels abroad and even when travelling incognito.
Thus, when in 1894 the Sultan of Johore—who was temporarily living in the UK
under the name of Albert Baker—was sued for breaking of his engagement to Ms
Mighell, he was granted immunity from the civil jurisdiction of the UK courts
upon revealing his true identity.⁵⁹
Today, the 1978 UK SIA provides a wide immunity from civil jurisdiction to
foreign heads of state. Section 20.1 provides that:
subject to the provisions of this section and to any necessary modifications, the Diplomatic
Privileges Act 1964 shall apply to
a. a sovereign or other Head of State;
b. members of his family forming part of his household; and
c. his private servants,
as it applies to the head of a diplomatic mission, to members of his family forming part of
his household and to his private servants.
The Diplomatic Privileges Act gives effect to the 1961 Vienna Convention on
Diplomatic Relations and section 20 hence declares the rules on diplomatic
immunity equally applicable to foreign heads of state.⁶⁰ Accordingly, the very
limited exceptions of article 31 of the VCDR apply. While the analogical appli-
cation of article 31.1.c VCDR allows foreign heads of state to be sued in rela-
tion to professional or commercial activity not related to their official functions
and exercised in the UK, this exception does not regard day-to-day commercial
transactions but continuous commercial or professional activity. A foreign head
of state refusing to pay for services rendered to him in his personal capacity, like
the famous example of the massages of the Sultan of Zanzibar, would be immune
from the jurisdiction of the UK courts.
It should further be pointed out that section 20 applies regardless of the official
or private nature of the visit of the head of state, or in fact regardless of presence
within UK territory whatsoever. While section 20.1 of the UK SIA originally
provided for the application of the Diplomatic Privileges Act 1964 to a sovereign
or other head of state who is in the United Kingdom at the invitation or with the
consent of the government of the United Kingdom, it was later amended to cover all
⁵⁹ Mighell v Sultan of Johore (UK, 1893). See also Statham v Statham and the Gaekwar of
Baroda [1912] P 92 (UK, Probate, Divorce and Admiralty Provision, 1911); Sayce v Ameer Ruler of
Bahawalpur State [1952] 2 QB 390 (UK, CA, 1952).
⁶⁰ Cf also BCCI v Price/Waterhouse (A Firm) and Others 111 ILR 604 (UK, High Court,
Chancery Division, 1996).
foreign heads of state whether in the UK or not and whether on official business
or not.⁶¹
Section 36 of the 1985 Australian Foreign States Immunities Act is modelled on
section 20.1 SIA, while the legislation of South Africa,⁶² India,⁶³ and Malaysia⁶⁴
does not even allow for the exceptions applicable to diplomatic immunity.
In the United States the issue of civil suit against foreign heads of state has
generated a considerable body of judicial decisions, which in turn has provoked a
lively scholarly debate. US scholars have commented that head of state immunity
is ‘at best [an] amorphous legal doctrine whose very existence is not entirely set-
tled in U.S. law and whose reach is almost completely uncertain’.⁶⁵ Since the rule
has not been codified in the 1976 FSIA the pre-FSIA practice of conclusive execu-
tive suggestions of immunity subsists.⁶⁶ The State Department proceeds from
the principle that all persons it recognizes as the legitimate head of a foreign state
enjoy absolute immunity from the civil jurisdiction of US courts.⁶⁷ In 1965 the
head of state of Saudi Arabia, King Faisal Bin Abdull Aziz Al-Saud was named
as defendant in a civil suit before US courts. The State Department made its pos-
ition clear in a letter to the Attorney-General:
King Faisal Bin Abdull Aziz Al-Saud is the Head of State of the Kingdom of Saudi
Arabia and as Head of State is not subject to the jurisdiction of any foreign Court without
his consent. In these circumstances, the Department of State recognizes and allows
the immunity of King Faisal from suit in the above named cases and requests that the
appropriate United States Attorney be instructed to appear and file with the Court a
supplemental suggestion of immunity to that effect.⁶⁸
⁶¹ Cf Pinochet no 3, 113 (per Lord Browne-Wilkinson).

⁶² s 4.1 of the 2001 Diplomatic Immunities and Privileges Act 37.
⁶³ s 86 of the Code of Civil Procedure provides that ‘[n]o Ruler of a foreign state may be sued in
any court otherwise competent to try the suit except without the consent of the Central Government
certified in writing by a Secretary to that Government.’ s 87a.1.b defines ‘ruler’ as ‘the person who is
for the time being recognized by the Central Government to be the head of that State’.
⁶⁴ Art 181.2 of the Constitution. Cf also Village Holdings Sdn Bhd v Her Majesty the Queen in
Right of Canada 87 ILR 223 (Malaysia, High Court, 1987).
⁶⁵ K Highet et al, ‘Lafontant v Aristide’ (1994) 88 AJIL 528, 531. See for similar observations
S Varughese George, ‘Head of State Immunity in the United States Courts: Still Confused After
All These Years’ (1995) 64 Fordham Law Review 1051; JL Mallory, ‘Resolving the Confusion over
Head of State Immunity: The Defined Rights of Kings’ (1986) 86 CLR 169; PE Bass, ‘Ex-Head of
State Immunity: A Proposed Tool of Foreign Policy’ (1987) 97 YLJ 299. Cf also Doe v United States
860 F 2d 40 (US, Ct of Apps (2nd Cir), 1988) 44, where the court considered that ‘[t]he scope of
this immunity is in an amorphous and undeveloped state.’
⁶⁶ One of the drafters of the FSIA commented in this regard: ‘Frankly, we forgot about it, or
didn’t know enough about it at the time, during those two or three critical years when the stat-
ute was being formulated.’ Remarks Mark Feldman, ‘Foreign Governments in United States
Courts’ (1991) 85 ASIL Proceedings 251, 276. Cf in particular Lafontant v Aristide 844 F Supp 128
(US, DC for the Eastern District of New York, 1994); and Tachiona v Mugabe 169 F Supp 2d 259
(US, DC for the Southern District of New York, 2001).
⁶⁷ We will see in § 2.2.2.1 below that the US head of state immunity doctrine extends to former
heads of state.
⁶⁸ Letter dated 14 September 1965, partly reproduced in (1966) 60 AJIL 100, 101.
In comparable terms the State Department argued in favour of the grant of
immunity to Jean-Bertrand Aristide.⁶⁹ A claim had been instigated against
Aristide for extrajudicial killing by the widow of Lafontant, a well-known
Haitian politician, who had been arrested and jailed after a thwarted coup d’état
to prevent the president-elect Aristide from taking office. It was alleged that, a few
months later, Aristide ordered a member of the armed forces of Haiti to execute
Lafontant. Although two days after the execution took place Aristide was exiled
from Haiti following a successful military coup, the United States continued to
recognize him as the lawful head of state of Haiti and never recognized the mili-
tary regime installed in Haiti. The US Justice Department stated in a suggestion
of immunity letter that
[t]he United States has an interest and concern in this action against President Aristide
insofar as the action involves the question of immunity from the Court’s jurisdiction
of the head-of-state of a friendly foreign state. The United States’ interest arises from a
determination by the Executive Branch of the Government of the United States, in the
implementation of its foreign policy and in the conduct of its international relations, that
permitting this action to proceed against President Aristide would be incompatible with
the United States’ foreign policy interests.⁷⁰
Courts, as a rule, accept the suggestions of immunity the State Department
issues to this effect.⁷¹ In this respect, the US approach to the doctrine of head
of state immunity is in fact fairly consistent. Theory, however, is muddled by
several judicial considerations on the scope of the doctrine in legal terms. In the
first place, courts have considered the doctrine of head of state immunity applic-
able in cases involving former foreign heads of state.⁷² Secondly, courts have
intimated that an independent judicial application of the rule of the head of
state immunity might proceed from a less absolute concept of immunity from
⁶⁹ Lafontant v Aristide (US, 1994).

⁷⁰ ibid 131.
⁷¹ Cf in addition to the cases against Faisal Bin Abdull Aziz Al-Saud and Aristide, Psinakis and
Others v Marcos and Others 81 ILR 605 (US, DC for the Northern District of California, 1975),
1975 Digest of United States Practice in International Law 344; Estate of Silme G Domingo v
Ferdinand Marcos, no C82–1055v (US, DC for the Western District of Washington, 1982), in
(1983) 77 AJIL 305; Saltany v Reagan 702 F Supp 319, 886 F 2d 438 (US, DC for the District
of Columbia and Ct of Apps District of Columbia Circuit, 1988, 1989), 87 ILR 680; Gerritsen
v de la Madrid (US, 1986); Anonymous v Anonymous NYS 2d 776 (US, New York State Ct of
Apps, 1992); Alicog v Kingdom of Saudi Arabia (US, 1994); Guardian F. v Archdiocese of San
Antonio, case no 93–CI–11345 (US, DC for the District of Texas, 1994); First American Corp
v Sheikh Zayed Bin Sultan Al-Nahyan 948 F Supp 1107 (US, DC for the District of Columbia,
1996); Tachiona v Mugabe (US, 2001); Abiola v Abubakar 267 F Supp 2d 907 (US, DC for
the Northern District of Illinois, 2003); Wei Ye v Jiang Zemin, no 03–3989 F 38 2004 WL
1984430 (US, Ct of Apps (7th Cir), 2004). Cf for cases in which no suggestion was issued Doe v
Karadžić 866 F Supp 734 (US, DC for the Southern District of New York, 1994); United States
v Noriega (US, 1997); Flatow v Islamic Republic of Iran 999 F Supp 1 (US, DC for the District
of Columbia, 1998).
⁷² Cf § 2.2.2.1 below.
civil jurisdiction. While in Alicog v Kingdom of Saudi Arabia the suggestion of

immunity was considered to be granted ‘[u]nder a doctrine of customary inter-
national law’, other courts have qualified the doctrine ‘a matter of grace and com-
ity, rather than a matter of right’.⁷³ In In re Grand Jury Proceedings, John Doe No
700 one court considered that ‘heads of state are immune at least as to authorized
official acts taken while the ruler is in power’.⁷⁴ In the 1988 case of Doe v United
States the court considered that ‘there is respectable authority for denying head-
of-state immunity to a former head-of-state for private or criminal acts in viola-
tion of American law’⁷⁵ while in the 1990 decision of United States v Noriega the
court stated that ‘there is ample doubt whether head of state immunity extends
to private or criminal acts in violation of US law’.⁷⁶ These decisions suggest that
were the practice of executive suggestions of immunity relinquished the judiciary
might prefer a more restrictive approach to the doctrine.
The current practice of the issuance of suggestions of immunity in any suit
against a head of a friendly foreign state has stirred academic debate. It is com-
monly argued that the practice raises the same due process questions as the pre-
FSIA state immunity practice and that there is no reason why courts should not
make independent head of state immunity decisions on the basis of a judicial
standard. As one scholar put it, ‘justifications are based on the same exagger-
ated concerns about pre-FSIA sovereign immunity’.⁷⁷ The closing of the Bank
for Credit and Commerce International (BCCI) due to fraud in 1992 impelled
a wave of support for a more restrictive approach to head of state immunity. The
closure had a considerable impact on many US citizens who lost their jobs or their
savings in the process. The trustees of a US bank owned by BCCI brought a civil
suit before the US courts against, inter alia, Sheikh Zayed bin Sultan Al-Nahyan,
the head of state of Abu Dhabi, who owned 77 per cent of the BCCI. Sheikh
Zayed moved for dismissal of the case on the basis of head of state immunity.
With the very real prospect of a suggestion of immunity being issued by the
State Department, the concerned chairman of the House Banking Committee
called for a hearing on the matter.⁷⁸ In memoranda submitted to the Committee
Dellapenna and Lowenfeld argued in favour of a more restrictive approach to
the head of state immunity doctrine. When after an initial settlement the case
did proceed, the State Department did indeed file a suggestion of immunity on
⁷³ Flatow v Islamic Republic of Iran (US, 1998); Lafontant v Aristide (US, 1994) 132.
⁷⁴ In re Grand Jury Proceedings, John Doe No 700 (US, 1987) 1110.
⁷⁵ Doe v United States (US, 1988) 45.
⁷⁶ United States v Noriega (US, 1990) 1519; and the reference to that quotation in United States
v Noriega (US, 1997).
⁷⁷ S Varughese George (1995) 1067.
⁷⁸ Hearing before the Committee on Banking Finance and Urban Affairs on ‘Head of State
Immunity’, House of Representatives, 103rd Congress, 9 December 1993: Serial No 103–104.
behalf of Sheikh Zayed Bin-Sultan Al Nahyan as the head of state of Abu-Dhabi,
which the court accepted as conclusive and barred the claim of the trustees.⁷⁹
Some critics have proposed to include the doctrine of head of state immunity
in the FSIA. In this respect, the suggestion of immunity practice has been con-
trasted with the approach of the court in Hilao v Marcos.⁸⁰ The State Department
did not intervene on behalf of Marcos when a claim was instigated against the
former president of the Philippines by victims of alleged human rights abuses.
The court had recourse to the FSIA in order to decide Marcos’ claim to immun-
ity. Comparing the approach of the court in Hilao v Marcos with that in Lafontant
v Aristide scholars argued that the doctrine of head of state immunity was unset-
tled.⁸¹ The Hilao v Marcos case was seen as judicial support for the application of
the FSIA to heads of state and several scholars proposed to amend the FSIA to
that affect, abolishing the practice of executive interference.⁸²
This line of reasoning is however flawed. Hilao v Marcos did not concern head
of state immunity. Rather it applied to the former president of the Philippines the
functional immunity standard applicable to all former state officials alike. This
is not a coherent alternative for the currently prevalent suggestion of immunity
practice. The proposal to incorporate head of state immunity under the FSIA in
fact boils down to a proposal to abolish head of state immunity altogether. Such
proposal should at least acknowledge the uncontroversial international law rules
on the position of foreign heads of state on official visits.
In civil law jurisdictions the scope of head of state immunity from civil jur-
isdiction is equally unsettled. Practice is scarce and definite conclusions inevit-
ably rickety. The Austrian Supreme Court in the 1964 Prince of X Road Accident
case held that the acta jure imperii–acta jure gestionis distinction did not apply to
cases involving foreign heads of state. The court refused to engage the claim of an
Austrian national against a foreign head of state held responsible for a road acci-
dent in Austria.⁸³
In 1988 a Belgian court considered that President Mobutu of Zaire could rely
on the rule of head of state immunity in a suit instigated by a company whose
expropriated property was now private property of Mobutu.⁸⁴
In spite of the earlier mentioned 1916 case of Wiercinski v Seyyid Ali Ben
Hammond, the 1957 case Ex-Roi d’Egypte Farouk v SARL Christian Dior and the
1963 case Jean Dessès v Prince Farouk et Dame Sadek implied that French courts
⁷⁹ First American Corp et al v Sheikh Zayed Bin Sultan Al-Nahyan et al (US, 1996) 1119.
⁸⁰ Hilao v Marcos (In re Estate of Ferdinand Marcos Human Rights Litigation) 25 F 3d 1467 (US,
Ct of Apps (9th Cir), 1994). See ch 5 § 2.3.1.3 for a more detailed discussion of this case.
⁸¹ S Varughese George (1995) 1052 speaks of ‘divergent approaches to head-of-state immunity
claims.
⁸² Cf JL Mallory (1986) 193; K Highet et al (1994) 532.
⁸³ Prince of X Road Accident Case 65 ILR 13 (Austria, S Ct, 1964). It is by now common know-
ledge that the case involved the Prince of Liechtenstein, cf J Salmon (1994) 598.
⁸⁴ Mobotu v SA Cotoni 91 ILR 259 (Belgium, Civil Court of Brussels, 1988). The case was
however decided on other grounds.
acknowledged an absolute immunity from civil suit for heads of state in office.⁸⁵
The respective cases followed disputes involving purely private commercial acts
of sitting foreign heads of state coming to the courts after abdication. Both courts
denied the claim to head of state immunity but could be seen to intimate that
immunity would have been available if the person concerned had still been in
office. The more recent decision of the Court of Appeal of Paris in Mobutu and
Republic of Zaire v Société Logrine did however restore the Wiercinski case prin-
ciple. A French company that got an order to supply tents for the celebration
of the sixtieth birthday of President Mobutu of Zaire brought a claim against
Mobutu when payment was not made for the services supplied. Mobutu claimed
that ‘he should benefit from jurisdictional immunity since the order in dispute
relates to the organization of a public celebration which is a matter of national
sovereignty involving the exercise of sovereign powers’.⁸⁶ The court, emphasizing
the private capacity in which the contract was concluded and the private char-
acter of the celebration concerned, resolutely rejected the claim to head of state
immunity.
The guidance provided by treaty law on the issue is limited and generally
unhelpful. Article 21.1 of the 1969 Special Missions Convention provides that
a head of state who leads a special mission enjoys the facilities, privileges and
immunities accorded by international law to heads of state on an official visit.
The ILC Draft Articles on Jurisdictional Immunities evade the issue in a similar
vein. Initially a provision on the scope of the personal immunity of heads of state
was in fact included in proposals for the Draft. It was proposed that the excep-
tions applicable to diplomatic immunity from civil jurisdiction would be equally
applicable to foreign heads of state. When it proved impossible however to reach
consensus the thorny issue was removed from the Draft altogether. Article 3.2 of
the 2004 Convention on Jurisdictional Immunities of States and their Property
reflects the final Draft of the ILC and provides that ‘[t]he present Convention
is without prejudice to privileges and immunities accorded under international
law to heads of State ratione personae.’⁸⁷ In other words, ‘existing customary is
left untouched’.⁸⁸ The conclusion that head of state immunity ratione personae—
which is head of state immunity—is not affected by the rules on state immunity
ratione materiae leaves us empty-handed.
⁸⁵ Ex-Roi d’Egypte Farouk v SARL Christian Dior (1957) 84 JDI 716 (France, Cour d’Appel
de Paris, 1957), A-C Kiss, Répertoire de la pratique française en matière de droit international pub-
lic (1965) iii 271, no 459; Jean Dessès v Prince Farouk et Dame Sadek (1964) 91 JDI 285 (France,
Tribunal de la Seine, 1963), 65 ILR 37. Cf JL Mallory (1986) 177.
⁸⁶ A claim supported by the Republic of Zaire: Mobutu and Republic of Zaire v Société Logrine
113 ILR 481 (France, CA of Paris, 1994).
⁸⁷ UN Convention on Jurisdictional Immunities of States and their Property, adopted by
GA Resolution 59/38 (2004).
⁸⁸ ILC, Report of the Commission to the General Assembly on the work of its forty-third
session, YBILC 1991 ii (part two) 12, 22.
Doctrine is equally divided. Cahier would recognize an absolute immunity
for heads of state from civil jurisdiction only when present on the territory of
the forum state.⁸⁹ In Satow’s Guide to Diplomatic Practice it is considered that
although the civil immunity of heads of state is probably absolute ‘certain excep-
tions to full immunities may be said to be inherently justifiable, even if it cannot
be said that they are fully supported by extensive practice . . . If the foreign sov-
ereign engages in a trading venture or in speculative investment, it may be justi-
fiable to subject him to civil suit or to deny him tax exemption on his profits.’⁹⁰
Salmon argued that the immunity only applies to heads of state present within
the territory of the forum state. In addition, he underlined the controversy on the
immunity from civil jurisdiction of heads of state on an official visit. Possibly, such
immunity is subject to the three exceptions applicable to diplomatic immunity
from civil jurisdiction.⁹¹ Watts argued otherwise. While he considered that the
exceptions are most likely applicable to a head of state abroad on a private visit, he
insisted that a head of state enjoys absolute immunity from the civil jurisdiction
of a state he visits on an official visit.⁹²
Finally, the Resolution on Immunities from Jurisdiction and Execution of Heads
of State and of Government in International Law adopted by the Institut de Droit
International in 2001, adopts a restrictive approach. Article 3 provides that ‘[i]n
civil and administrative matters, the Head of State does not enjoy any immunity
from jurisdiction before the courts of a foreign State, unless that suit relates to acts
performed in the exercise of his or her official functions . . . Nonetheless, nothing
shall be done by way of court proceedings with regard to the Head of State while
he or she is in the territory of that State, in the exercise of official functions.’⁹³
The uncertain scope of head of state immunity from civil jurisdiction reflects
the uncertain rationale of the rule. While it is often argued that the immun-
ity protects the exercise of the functions of heads of state just like diplomatic
immunity protects the exercise of diplomatic functions,⁹⁴ the scope of the rule
exceeds in fact the wants of such functionality rationale. It is not the differ-
ence in scope between diplomatic immunity and head of state immunity as such
that impels this conclusion. The functions of a head of state are clearly differ-
ent from the functions of diplomatic agents. Heads of state may act on behalf
of the state in all international intercourse—jus repraesentationis omnimodae.⁹⁵
The Legal Bureau of the Canadian Ministry of Foreign Affairs pointed out in a
⁸⁹ P Cahier (1962) 340ff. Cf also D Anzilotti (1910) 519; L Van Praag (1915) 446.
⁹⁰ Gore-Booth (ed) (1979) 19.
⁹¹ J Salmon (1994) 595ff.
⁹² A Watts (1994) 65.
⁹³ Institut de Droit International, Resolution on the Immunities from Jurisdiction and
Execution of Heads of State and of Government in International Law (Résolution sur les immu-
nités de juridiction et d’exécution du chef d’Etat et de gouvernement en droit international), (2001),
(2000–01) 69 AIDI 743.
⁹⁴ Cf eg Psinakis and Others v Marcos and Others (US, 1975) fn 1.
⁹⁵ Cf A Watts (1994) 26.
memorandum that ‘it might . . . be said that even greater respect is owed to the
dignity of the visiting sovereign or Head of State, since his own diplomatic envoys
in the host state are clearly inferior to him. Applying these principles to the visit
of a Head of State, it is clear that the Government of Canada must, in accordance
with international law and practice, afford to the Head of State and to his family
and suite at least the privileges, immunity and inviolability provided for in the
Vienna Convention on Diplomatic Relations.’⁹⁶ As Watts aptly put it, the head
of state is ‘the representative par excellence of his State’ and is therefore in many
respects ‘an a fortiori case’.⁹⁷ In addition to this formal difference in status, the
exposure of a head of state to media attention and the related risk of frivolous
claims may justify a more extensive protection of the head of state compared to
the state’s diplomatic agents.
To ensure the undisturbed exercise of his functions, a head of state would how-
ever only need protection when abroad on an official visit. Verhoeven pointed out
that in contrast to a diplomatic agent the ‘droit de représentation [d’un chef d’Etat]
n’est pas limité par une accréditation particulière et est opposable erga omnes, ce
qui explique qu’il ait droit dans tout Etat étranger à un traitement privilégié’.⁹⁸
This is true. But it does not explain the protection of foreign heads of state on
holidays abroad. The ne impediatur legatio rationale does not guarantee the actual
undisturbed exercise of the diplomatic function by any specific diplomatic agent
but rather ensures—on a more abstract level—that the diplomatic function can
in theory be exercised without disturbance. A diplomatic agent therefore only
enjoys immunity from the jurisdiction of the state in which he exercises his offi-
cial functions. A diplomat of state A, accredited to state B, who is caught com-
mitting a crime while on holiday in state C can be arrested and brought to trial
before the courts of state C without diplomatic immunity being an issue. There is
no reason whatsoever to shield the diplomatic agent from the jurisdiction of third
states in whose territory he stays for purely private purposes.
In contrast, the immunity ratione personae of foreign heads of state is not simi-
larly abstracted from the person of the office holder. On the contrary. We saw
above that the principle of inviolability and head of state immunity from crim-
inal jurisdiction apply regardless of the official or private purpose of a visit, and
even regardless of entry of foreign territory altogether. Since it can never be neces-
sary for the exercise of the functions of a head of state to travel abroad for private
purposes, the rationale of immunity granted to a head of state must lie elsewhere.
⁹⁶ Memorandum of 31 January 1981, reproduced in (1981) 10 Canadian Yearbook of

International Law 324, 325.
⁹⁷ A Watts (1994) 40. Cf also M Miele (2002) 231. Estate of Silme G Domingo v Ferdinand
Marcos (US, 1982).
⁹⁸ J Verhoeven (Rapporteur Institut de Droit International), Les immunités de juridiction et
d’exécution du chef d’Etat et de gouvernement en droit international, Rapport provisoire (2000),
(2000–01) 69 AIDI 482, 511.
The functionality rationale protects the exercise of the function in general, not
the exercise of the function by an individual in particular.
The finding of the rapporteur of the Institut de Droit International that the
‘considérations de “souveraineté” ont clairement cédé aujourd’hui le pas à des
besoins strictement fonctionnels: comme pour les agents diplomatiques, c’est le
souci de permettre au chef d’État d’exercer en toute indépendance ses fonctions
qui explique fondamentalement le traitement privilégié qui lui est accordé par le
droit international’ is hence not shared by this author.⁹⁹ It is a great pity that this
flawed conception—protection of the person rather than the office—is equally at
the basis of the decision of the ICJ in the Arrest Warrant case. The facts of this case
are related in section 2.2.2.3 below. For now it suffices to quote the Court on its
interpretation of the functionality rationale. The Court stated, in relevant part:
if a Minister for Foreign Affairs is arrested in another State on a criminal charge, he or she
is clearly thereby prevented from exercising the functions of his or her office. The conse-
quences of such impediment to the exercise of those official functions are equally serious,
regardless whether the Minister for Foreign Affairs was, at the time of arrest, present in
the territory of the arresting State on an ‘official’ visit or a ‘private’ visit . . .¹⁰⁰
In this vein, the Court should find the arrest of an ambassador while on a holiday
outside either sending or receiving state equally unacceptable.
On closer consideration it cannot but be concluded that the head of state
immunity rule reflects remnants of the majestic dignity that once attached to
kings and princes as well as remnants of the idea of the incarnation of the state in
its ruler. Or, the rationale underlying the rule is an arguably somewhat archaic,
but nonetheless very real relic of the personal sovereignty with which a head of
state was once endowed.¹⁰¹ Watts noted in this respect that
the mystique of sovereignty, whether of States or their Heads, is much diminished.
Nevertheless, the earlier close identity of the law governing the position of States with
that of Heads of States, with both aspects being informed by notions of ‘sovereignty’, has
left its mark on current legal ideas relating to the position of Heads of States . . . Heads of
States are still in a special position as the supreme representatives of, and in some respects
the personal manifestations of, their States.¹⁰²
The Swiss case of Marcos and Marcos v Federal Department of Police acknowledged
this rationale. The court considered that ‘[c]ustomary international law grants
such privileges ratione personae to Heads of State as much to take account of their
functions and symbolic embodiment of sovereignty as by reason of their represen-
tative character in inter-State relations.’¹⁰³ Also Oppenheim’s International Law
notes that the immunity of heads of state does in fact not assimilate diplomatic
⁹⁹ ibid 508.
¹⁰⁰ Arrest Warrant Case, 20, § 55.
¹⁰¹ Cf M Miele (1961) 122.
¹⁰² A Watts (1994) 36.
¹⁰³ Marcos and Marcos v Federal Department of Police 1 (Switzerland, 1989) (emphasis added).
immunity. Head of state immunity, it is argued, is not functional in character.

Rather, the maxim par in parem non habet imperium must be seen to underlie the
rule.¹⁰⁴ While this finding is not further explained, it seems clear that Oppenheim
rationalizes the scope of the rule by reference to the idea of the manifestation of
the state in the person of the head of state.
The controversy on the scope of head of state immunity from civil jurisdiction
can be traced to a disagreement on the hold of this personal manifestation of sov-
ereignty rationale, as we will call it. The functionality rationale can only bear the
weight of a comprehensive immunity from civil jurisdiction during official visits.
This is to say, acts of exercise of jurisdiction, dependant on the presence of an indi-
vidual on the territory of the forum state, may not be performed when a foreign
head of state visits the forum state on official business. A general immunity from
civil jurisdiction for private acts may exist but it should be realized that it is a rem-
nant of a somewhat archaic conception of sovereignty. While this archaic form
of immunity is clearly accepted in the field of criminal jurisdiction, in the field of
civil jurisdiction this is less clear. The stray from a strict functionality rationale
meets more opposition in the field of civil law than in the field of criminal law
because of the direct negative consequences for private individuals. Gabba wrote
that ‘[l]a qualité de souverain n’est pas une fonction publique dont sont investis
les fonctionnaires publics. C’est une qualité inhérente à la personne du chef de
l’Etat, qui le pénètre complètement, de sorte que le prince est sacré et inviolable
dans toutes les manifestations de son activité.’¹⁰⁵ In a pungent reaction, Weiss
rhetorically questioned whether ‘n’y a-t-il pas un véritable anachronisme à sou-
tenir, en plein XXe siècle, que la dignité conférée au souverain le place en dehors
de l’humanité, ou tout au moins que sa personnalité s’absorbe et se confond dans
l’Etat, dont les destinées reposent entre ses mains?’¹⁰⁶ Immunity for private acts,
Weiss argued, ‘est en droit impossible à justifier, et dans tous les cas elle constitu-
erait un très grave danger.’¹⁰⁷
The personal immunity of a foreign head of state may of course be waived.
Like diplomatic immunity, head of state immunity appertains to the state and
not to the head of state personally.¹⁰⁸ It has been suggested that since the head
of state is the ultimate authority within the state he, unlike the diplomatic agent
or any other state official, may be thought to have the capacity to waive his own
immunity.¹⁰⁹ It is, however, arguable that the decision to waive immunity should
in principle be taken by the government as a whole, even though the head of
¹⁰⁴ R Jennings and A Watts (eds) (1992) i 1091, § 499.

¹⁰⁵ CF Gabba (1890) 36.
¹⁰⁶ A Weiss (1923) 528.
¹⁰⁷ ibid 530.
¹⁰⁸ There are no examples of cases where a foreign state has actually waived the immunity of
its head of state. Cf the following cases dealing with the waiver immunity of a former head of state,
In re Grand Jury Proceedings, John Doe No 700 (US, 1987) 1111; Doe v United States (US, 1988) 45;
Paul v Avril (US, 1993) 211.
¹⁰⁹ P Cahier (1962) 342; A Watts (1994) 67.
state may be competent to communicate this decision. Particularly, the head of
state should not be considered able to waive the immunity against the wish of
the government of the state he represents.¹¹⁰ Waiver is only effective moreover
when exercised by the government recognized by the executive as the legitimate
government of the state concerned. Thus, the waiver of the immunity of Aristide
by the government in power in Haiti was not recognized by the US court that
was seized of the dispute between Aristide and the widow of a political opponent
arguably executed on his orders.¹¹¹
2.2.2 Formal Scope of the Immunity

2.2.2.1 Heads of state in office
Each state determines for itself who is to fulfil the office of head of state and what
are the exact powers attached to it. Both the nature of the office—elective or
hereditary—and the scope of the functions differs vastly from state to state. The
office entails largely symbolic functions when in the hands of European royalty
or the German or Italian president; while in France or the US it entails real sub-
stantive power. For the purposes of head of state immunity these differences are
irrelevant. Heads of state should all be treated alike.¹¹² The rule does however
not apply to heads of entities that do not qualify as sovereign state.¹¹³ Moreover,
it may happen that a state does not recognize as head of state the person that de
facto holds the office in a foreign state—we saw above that the US government
refused to recognize the military regime installed in Haiti after the overthrow of
President Aristide as the government of Haiti and continued to recognize Aristide
as the lawful head of state instead. Even though states have in general abandoned
the practice of recognition of foreign governments, non-recognition of a particu-
lar regime, for example after a violent coup against the democratically-elected
government, is still feasible. It should finally be noted that courts—especially in
¹¹⁰ Cf in this sense, J Verhoeven (Rapporteur Institut de Droit International), Les immunités
de juridiction et d’exécution du chef d’Etat et de gouvernement en droit international, Rapport
provisoire (2000), (2000–01) 69 AIDI 482, 533–4.
¹¹¹ Lafontant v Aristide (US, 1994) discussed above.
¹¹² Cf A Watts (1994) 26; M Miele (1961) 121. Mirza Ali Akbar Kashani v United Arab Republic
(India, 1965) 500–01. At the end of the nineteenth century there were still writers that argued for
a distinction between monarchs and presidents, see for an overview D Anzilotti (1910) 521 fn 3.
In the 1992 edition of Oppenheim’s International Law, Jennings and Watts still express support for
such distinction. In § 454 (1042) we read that as far as immunity from jurisdiction on private visits
is concerned there may be grounds for distinguishing presidents from monarchs because presidents
lack the personal quality of sovereignty.
¹¹³ Cf eg Colonel HH Raja Sir Harinder Singh Barar Bans Bahadur v Commisioner of Income Tax,
Punjab 64 ILR 523 (India, S Ct, 1971) 528 (Indian princely states were considered not to possess
international personality and their rulers were hence not entitled to head of state immunity); Ric
Arafat e altro F It 1986 II, 277 (Italy, Corte di Cassazione, 1985) (the PLO was not considered a
sovereign state and Arafat hence not entitled to head of state immunity); Bacchelli v Commune di
Bologna (Italy, 1978), 137 (Grand Master of the Order of Santa Maria did not qualify as head of
state); First American Corp. et al v Sheikh Zayed Bin Sultan Al-Nahyan et al (US, 1996) 1121.
common law countries—often defer to the executive in the determination of the

question whether a particular person qualifies as head of state.¹¹⁴
Head of state immunity only applies to heads of state in office. Upon abdica-
tion a former head of state can only rely on the rule of functional immunity as
applicable to all (former) foreign state officials. They are no longer shielded from
foreign jurisdiction by any personal immunity, unless of course they are sent on
special diplomatic missions by their home state.¹¹⁵ Verhoeven gave a confusing
twist to this reality writing that ‘[u]ne doctrine relativement ancienne considérait
que le chef d’Etat qui n’est plus en fonction perd tous les privilèges et immunités
don’t il jouissait lorsqu’il était en exercice . . . De nos jours, la doctrine dominante
paraît néanmoins considérer que l’immunité de juridiction subsiste pour ce qui
concerne les actes “publics”(—de la fonction).’¹¹⁶ The consideration that heads of
state lose all immunity when they leave office is obviously not incompatible with
the operation of the rule of functional immunity. Comparing apples with pears,
Verhoeven veils the essentially distinct nature of the two rules.
It should be noted here moreover that the Resolution adopted by the Institut
de Droit International contains a puzzling definition of the scope of the rule of
functional immunity. Functional immunity applies to acts that are in law the
acts of the foreign state. ‘Official acts’ are acts performed in the exercise of one’s
functions. While the English translation of article 13.2 of the Resolution employs
the classic formulation that no immunity is available ‘except in respect of acts
which are performed in the exercise of official functions and relate to the exer-
cise thereof’; the original French text states that no immunity is available ‘sauf
lorsqu’il y est assigné ou poursuivi en raison d’actes qu’il a accomplis durant ses
fonctions et qui participaient de leur exercise’. In comparison, the French version
of article 39.2 of the Vienna Convention reads that ‘l’immunité subsiste en ce qui
concerne les actes accomplis par cette personne dans l’exercice de ses fonctions
comme membre de la mission’ and also article 3 of the Resolution itself employs
the classic formulation ‘sauf lorsqu’il est assigné en raison d’actes qu’il a accom-
plis dans l’exercice de ses fonctions officielles’ setting out the scope of head of state
¹¹⁴ Cf s 21.1 UK State Immunity Act (1978); s 17.c South African Foreign States Immunity
Act (1981); s 40.1.c Australian Foreign Sovereign Immunities Act (1985); s 13.1.c Canadian State
Immunity Act (1982); s 18.a Pakistan State Immunity Ordinance (1981); s 18.a Singaporean
State Immunity Act 1979. S 87.a.1.b Indian Code of Civil procedure (1908) provides in less strict
terms that ‘every court shall take notion of the fact . . . that a person has or has not been recognized
by the central government to be the head of the state’. Cf for a comprehensive discussion of this
aspect of the formal scope of the rule of head of state immunity A Watts (1994) 21; J Verhoeven
(Rapporteur Institut de Droit International), Les immunités de juridiction et d’exécution du chef
d’Etat et de gouvernement en droit international, Rapport provisoire (2000), (2000–01) 69 AIDI
482, 497–503.
¹¹⁵ It should be noted that courts may of course refuse to engage claims against former foreign
heads of state on grounds independent of any rule of immunity. Cf eg Consorts Duvalier et autres v
État haïtien et autres (France, 1990).
¹¹⁶ J Verhoeven (Rapporteur Institut de Droit International), Les immunités de juridiction et
(2000–2001) 69 AIDI 482, 536.
immunity from civil jurisdiction. Arguably, the French text of article 13.2 includes
more than mere official acts. The reports of the Rapporteur nor the records of
the discussions between the members of the Institut preceding the adoption of
the Resolution offer an explanation for the anomaly of article 13.2.
In the United States suits against former heads of state may be dismissed
on the basis of the head of state immunity doctrine.¹¹⁷ It should, however, be
recalled that executive suggestions of immunity are binding on the US judiciary.
Accordingly, this practice reflects US national rather than international law.
Former heads of states may enjoy extra protection as a matter of courtesy. In
Oppenheim’s International Law we read that ‘[n]othing, of course, prevents a state
from granting to a foreign ex-Head of State the same privileges as it grants to a
current Head of State, but international law does not exact any such courtesy.’¹¹⁸
This position is shared by most scholars.¹¹⁹ It has in this respect been pointed out
that the grant of immunity from jurisdiction may in fact constitute an effective
foreign policy tool.¹²⁰ Chapters 5 and 6 of this study will argue, however, that the
extension of immunity beyond the requirements of international law may clash
with contemporary obligations of states under international criminal law and
international human rights law.
2.2.2.2 Family members

It is highly questionable whether the rule of head of state immunity extends its
protection to the family members of a foreign head of state. In 1915 Van Praag
noted that doctrine on this question was ‘divisé’.¹²¹ Verhoeven commented in
2000 that this was not much less so today.¹²² State practice is scarce and far from
univocal. A Belgian court considered in a 1988 case concerning a civil claim
instigated against the Zairian president Mobutu, his wife and his children that
in contrast to the head of state itself, his family members could not rely on a rule
of immunity from jurisdiction.¹²³ The Swiss Federal Tribunal considered in the
1989 case of Marcos and Marcos v Federal Department of Police that
¹¹⁷ Cf Abiola v Abubakar (US, 2003); Wei Ye v Jiang Zemin (US, 2004). Cf also JC Barker,
‘The Future of Former Head of State Immunity After Ex Parte Pinochet’ (1999) 941 for the sug-
gestion that former heads of state continue to be protected by a degree of personal immunity from
jurisdiction.
¹¹⁸ R Jennings and A Watts (eds) (1992) i 1043–44, § 456, fn 3.
¹¹⁹ Cf Gore-Booth (ed) (1979) 10; A Watts (1994) 90. The Act for the Protection of Foreign
Officials and Official Guests of the United States 1972 includes in the definition of foreign officials
benefiting from the act not only heads of state but also ‘any person who has previously served in
that capacity’, (1973) AJIL 67 622.
¹²⁰ PE Bass (1987) 316ff.
¹²¹ L Van Praag (1915) 451.
¹²² J Verhoeven (Rapporteur Institut de Droit International), Les immunités de juridiction et
d’exécution du chef d’État et de gouvernement en droit international, Rapport provisoire (2000),
(2000–01) 69 AIDI 482, 530.
¹²³ Mobutu v SA Cotoni (Belgium, 1988).
Customary international law has always granted to Heads of State, as well as to the mem-
bers of their family and their household visiting a foreign State, the privileges of personal
inviolability and immunity from criminal jurisdiction . . . This jurisdictional immunity
is also granted to a Head of State in a private capacity and also extends, in such circum-
stances, to the closest accompanying family members as well as to the senior members of
his household staff. Accordingly, such persons cannot be the subject of criminal proceed-
ings or even of a summons to appear before a court . . .¹²⁴
The consideration was however limited to criminal jurisdiction and did not con-
sider the immunity of heads of state and their family members when not on the
territory of the forum state.
The UK State Immunity Act provides a very extensive immunity to fam-
ily members forming part of the household of a foreign head of state, as well
as to private servants. Under section 20.1.b and c these individuals have a right
to the same immunity as family members and servants of diplomatic agents on
the Vienna Convention of Diplomatic Relations.¹²⁵ In contrast, the Australian
Foreign States Immunities Act limits the application of the law of diplomatic
immunity to the spouse of the head of state.¹²⁶
It must be noted at the outset that since US practice relies on executive rather
than judicial decision-making it is questionable whether it reflects legal stand-
ards. Arguably, comity and political expedience considerations control the execu-
tive actions in this area. The US State Department is likely to file a suggestion of
immunity to shield a head of state’s spouse from US jurisdiction. In the Estate of
Silme G Domingo v Ferdinand Marcos and Kline v Cordero de la Madrid a sugges-
tion of immunity was issued for the wife of the president of the Philippines and
the wife of the president of Mexico respectively, barring the civil suits instigated
against them while they were not present on the territory of the US.¹²⁷ It is not
clear whether other family members would enjoy a similar protection.¹²⁸ The
only example of a suggestion of immunity in regard to a family member of a
head of state other than the spouse can be found in the case of Kilroy v Windsor
that involved a claim against the Prince of Wales, heir to the British throne.¹²⁹
Although the letter from the State Department to the Attorney-General request-
ing that the Department of Justice file a suggestion of immunity stated that Prince
¹²⁴ Marcos and Marcos v Federal Department of Police (Switzerland, 1989) 201.
¹²⁵ Cf § 2.2.1 above.
¹²⁶ Australian Foreign States Immunities Act (1985) s. 36.2. The Australian Law Reform
Commission had considered in Report 24, 103, § 163 that ‘there seems to be no reason to extend
similar immunities to members of the family (other, perhaps, than the spouse) or to the retinue of
the head of state . . . as the United Kingdom act does.’
¹²⁷ Estate of Silme G Domingo v Ferdinand Marcos (US, 1982); Kline v Cordero de la Madrid (US,
1989). Cf also Kline and others v Kaneko and others (US, 1988) 392.
¹²⁸ It is noted that in Junquist et al v Sheikh Sultan Bin Khalifa Al Nayhan et al (US, 1996)
the State Department had not issued a suggestion in respect of the grandson of the ruler of Abu
Dhabi.
¹²⁹ Kilroy v Windsor 81 ILR 605 (US, DC for the Northern District of Ohio, 1978).
Charles was ‘a member of the sovereign’s immediate family and household’, the
principal argument in favour of such a suggestion seemed to be another. The State
Department explained that it regarded the visit of the prince ‘a special diplomatic
missions’ and that it considered him ‘an official diplomatic envoy while present in
the United States on that special missions.’
With the possible exception of the spouse of a head of state it is probably right
to say that the enjoyment of privileges and immunities of family members of
heads of state is a matter of international comity rather than of established inter-
national law.¹³⁰ As regards family members that are not present within the ter-
ritory of the forum state or that are present on a private visit this conclusion is
widely shared.¹³¹ But even as regards family members that accompany a head of
state on an official visit the analogy with family members of diplomatic agents
accredited to a permanent mission is not convincing. Diplomatic agents reside
within the territory of the foreign state in which they exercise their functions and
are therefore naturally accompanied by family members on their mission. The
protection of these family members may hence be considered necessary to secure
the independent exercise of the diplomatic functions.¹³² The same is not true for
family members of heads of state. Family members that are invited to join the
head of state on an official visit abroad would qualify as a member of a special
mission and hence be protected by immunity in that capacity.
2.2.2.3 Heads of government and ministers of foreign affairs?

Article 15 of the Resolution on Immunities from Jurisdiction and Execution of
Heads of State and of Government in International Law of the Institut de Droit
International provides that
1. The Head of Government of a foreign State enjoys the same inviolability, and immun-
ity from jurisdiction recognised, in this Resolution, to the Head of State . . .
2. Paragraph 1 is without prejudice to such immunities to which other members of the
government may be entitled on account of their official functions.¹³³
Verhoeven had argued in his Rapport provisoire that both the head of govern-
ment and the minister of foreign affairs are protected by the immunity regime
applicable to heads of state and earlier drafts of article 15 had extended head of
¹³⁰ Cf YBILC 1989 ii 102–3 (Commentary on art 4); and art 5 of the Resolution on Immunities
from Jurisdiction and Execution of Heads of State and of Government in International Law of the
Institut de Droit International ((2000–01) 69 AIDI 743) for the argument that even the spouse
cannot rely on a right.
¹³¹ Cf A Watts (1994) 80–1; R Jennings and A Watts (eds) (1992) i 1039–40, § 453.
¹³² It is noted that art 1.1 of the 1973 Convention on the Prevention and Punishment of Crimes
against Internationally Protected Persons, including Diplomatic Agents does include accompany-
ing family members of a head of state in the definition of ‘internationally protected person’.
¹³³ Institut de Droit International, Resolution on the Immunities from Jurisdiction and
Execution of Heads of State and of Government in International Law (Résolution sur les immu-
nités de juridiction et d’exécution du chef d’Etat et de gouvernement en droit international), (2001),
(2000–01) 69 AIDI 743.
state immunity to heads of government and ministers of foreign affairs alike.

The proposal for the Resolution was only revised after the deliberations of the
Institut in Plenary Session.¹³⁴ The records of the deliberations do not reveal def-
inite explanations for the revision. It seems likely that the Institut did not want
to burn its fingers on the question as to the scope of the immunity applicable to
ministers of foreign affairs that was the principal question in the Congo v Belgium
litigation before the ICJ at the time the Resolution was adopted. However, in
view of the Rapport provisoire, the non-inclusion of ministers of foreign affairs in
the Resolution is not value-free. A solid a contrario argument may be based on the
change of position of the Institut de Droit International. While the initial report
of Verhoeven supported the position of The Congo in the proceedings before the
ICJ, the changes laid down in the final resolution can be relied on in support of
the position of Belgium.¹³⁵ It is therefore regrettable that the Institut did not dis-
close the debates that must have preceded the revision.
Half a year later the ICJ issued its decision in the Arrest Warrant case.¹³⁶ The
Court ruled that the issuance of an international arrest warrant by a Belgian inves-
tigating judge against the incumbent minister of foreign affairs of the Democratic
Republic of the Congo, with respect to war crimes and crimes against humanity
allegedly committed within the territory of the Congo, had violated the immun-
ity from criminal jurisdiction and the inviolability attached to the office of min-
isters of foreign affairs under international law. The Court did not define the
immunity in terms of head of state immunity. The conclusion of the Court that
ministers of foreign affairs enjoy an absolute immunity from foreign criminal
jurisdiction regardless of the nature of the act or the nature of the visit abroad can
however be seen to equate the position of ministers of foreign affairs with that of
heads of state at least in respect of criminal proceedings.
Neither the reasoning underlying the Resolution of the Institut nor the reason-
ing employed by the ICJ in support of its conclusions is particularly convincing.
The extension of head of state immunity to heads of government and ministers
of foreign affairs is far from uncontroversial—to say the least. In his authori-
tative article Watts had argued that ‘[a]lthough it may well be that a Head of
State, when on a private visit to another State, still enjoys certain privileges and
immunities, it is much less likely that the same is true of heads of governments
¹³⁴ Cf art 15 of the Projet de Résolution (2001), Institut de Droit International (Rapporteur J
Verhoeven), Les immunités de juridiction et d’exécution du chef d’Etat et de gouvernement en droit
international, Plenary Session (2001), (2000–01) 69 AIDI 601, 600 and 606, and J Verhoeven,
(Rapporteur Institut de Droit International), Les immunités de juridiction et d’exécution du chef
d’Etat et de gouvernement en droit international, Rapport provisoire (2000), (2000–01) 69 AIDI
482, 544, § 42; with art 15 of the Projet de Résolution Révisé No 1, Institut de Droit International
(Rapporteur J Verhoeven), Les immunités de juridiction et d’exécution du chef d’Etat et de
gouvernement en droit international, Plenary Session (2001), (2000–01) 69 AIDI 601, 640.
¹³⁵ Cf the Dissenting Opinion of Judge Van den Wyngaert in the Arrest Warrant Case, § 21.
The discrepancy between the preliminary report and the final resolution is all the more intriguing
considering the nationality of the Rapporteur.
¹³⁶ Arrest Warrant Case.
and foreign ministers’. He explained that ‘[a]lthough they may be accorded cer-
tain special treatment by the host State, this is more likely to be a matter of cour-
tesy and respect for the seniority of the visitor, than a reflection of any belief that
such treatment is required by international law.’¹³⁷ Accordingly, Watts confirmed
the argument advanced by Cahier thirty years earlier that these officials enjoy
personal immunity only when they are on an official visit abroad. This position is
shared by most commentators.¹³⁸
The 1973 Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, including Diplomats distinguishes the pos-
ition of heads of state from that of heads of government and ministers of foreign
affairs. Article 1 provides that for the purposes of the Convention ‘internationally
protected person’ means
• Head of State, including any member of a collegial body performing the functions of
a Head of State under the constitution of the State concerned, a Head of Government
or a Minister for Foreign Affairs, whenever any such person is in a foreign State, as well as
members of his family who accompany him;
• any representative or official of a State or any official or other agent of an international
organization of an intergovernmental character who, at the time when and in the place
where a crime against him, his official premises, his private accommodation or his
means of transport is committed, is entitled pursuant to international law to special pro-
tection from any attack on his person, freedom or dignity, as well as members of his
family forming part of his household.
Also article 21 of the 1969 Convention on Special Missions intimates a difference
between the position of heads of state on the one hand and that of heads of gov-
ernment and ministers of foreign affairs on the other. The article reads as follows:
1. The Head of the sending State, when he leads a special mission, shall enjoy in the
receiving State or in a third State the facilities, privileges and immunities accorded by
international law to Heads of State on an official visit.
2. The Head of the Government, the Minister for Foreign Affairs and other persons of
high rank, when they take part in a special mission of the sending State, shall enjoy
in the receiving State or in a third State, in addition to what is granted by the present
Convention, the facilities, privileges and immunities accorded by international law.
The draft articles of the ILC that preceded the convention had used the formu-
lation of the now second paragraph to the position of heads of state and other
high ranking persons alike, but the General Assembly chose to distinguish the
position of heads of states and adopted the bipartite formulation of article 21.¹³⁹
The article does seem to acknowledge that all three functions enjoy special
¹³⁷ A Watts (1994) 109.

¹³⁸ P Cahier (1962) 346. Cf also R Jennings and A Watts (eds) (1992) i 1046, § 459; MH Ryan
(1978) 193; J Salmon (1994) 539; A Cavaglieri(1932) 321–2.
¹³⁹ ILC Draft Articles on Special Missions, YBILC 1967 ii 347ff, 359.
protection under international law.¹⁴⁰ However, as Watts pointed out, the article
does not necessarily see to jurisdictional immunity.¹⁴¹ Also within the context
of their work on the Draft Articles on Jurisdictional Immunities of States and
their Property, the ILC distinguished between the three functions. While it con-
sidered at one point that their draft did ‘not prejudge the extent of immunities
granted by States to heads of Government and ministers for foreign affairs’,¹⁴²
article 3.2 of the Draft Articles only provides thus in respect of heads of state. It
should moreover be pointed out that in a previous report the Commission had in
fact stated that if privileges and immunities were granted to foreign ministers this
was on the basis of comity rather than on the basis of established rules of inter-
national law.¹⁴³
State practice is particularly scarce. Judicial practice of only a handful of juris-
dictions is available. In 1961 the Cour d’Appel de Paris denied immunity to a
minister of state of Saudi Arabia who was in Paris as a member of a delegation at
a UN conference and was sued in respect of a lease of a flat in Paris.¹⁴⁴ The court
implied however that immunity would have been available had the claim con-
cerned a minister of foreign affairs instead. This indirect recognition of personal
immunity of ministers of foreign affairs is however not terribly instructive since
the case concerned an official visit.
The other relevant case law comes from US courts. Upon suggestions of
immunity filed by the State Department courts have granted immunity to
a head of government,¹⁴⁵ and to two ministers of foreign affairs.¹⁴⁶ While the
deferral to the executive, of course, casts a doubt on the relevance of the deci-
sions for the ascertainment of customary international law,¹⁴⁷ courts have stated
that they granted the immunity in conformance with rules of customary inter-
national law.¹⁴⁸ In fact, in cases where the State Department had filed sugges-
tions of immunity in respect to other foreign state officials courts have refused
to follow the suggestions noting that ‘[t]he government . . . seeks to expand the
head-of-state doctrine to encompass all government officials of a foreign state
¹⁴⁰ Cf M Bartoš (1963) 438.

¹⁴¹ A Watts (1994) 108 fn 243.
¹⁴² YBILC 1991 ii 22 (Commentary on art 3).
¹⁴³ YBILC 1989 ii 102–3 (Commentary on art 4).
¹⁴⁴ Ali Ali Reza v Grimpell 47 ILR 275 (France, CA of Paris, 1961).
¹⁴⁵ Saltany and Others v Reagan and Others (US, 1988).
¹⁴⁶ Cf Tachiona v Mugabe (US, 2001), affirmed on diplomatic immunity grounds: Tachiona v
United States 386 F 3d 205 (US, Ct of Apps (2nd Cir), 2004); Chong Boon Kim v Kim Yong Shik and
David Kim 81 ILR 604 (US, CA (1st Cir), 1963), 58 AJIL 1964 186. It is interesting to note that in
Tachiona v Mugabe the court qualified such decisions as head-of-state immunity decisions.
¹⁴⁷ Not because statements of the executive are not relevant for the formation of custom, but
because these statements do not always purport to be based on international law.
¹⁴⁸ Cf in addition to the cases mentioned above also Estate of Silme G Domingo v Ferdinand
Marcos (US, 1982) 306 where the court noted that ‘[u]nder customary rules of international law,
recognized and applied in the United States, the head of a foreign government, its foreign minis-
ters, and those designated by the head of state or members of his official party are immune from the
jurisdiction of the United States federal and state courts’; and Kilroy v Windsor (US, 1978) 606.
to whom the State Department chooses to extend immunity. There is no prece-
dent for such a radical departure from past custom.’¹⁴⁹ It should finally be noted
that in the Tachiona v Mugabe case the court could be seen to qualify the scope
of the suggestion filed by the executive noting that ‘[t]he Government’s asser-
tion of head-of-state immunity as to Mugabe extended to Mudenge, travelling
as Foreign Minister and as a member of Mugabe’s official entourage at the time
he was served.’¹⁵⁰ In fact, both the Tachiona case, as the Chong Boon Kim case,
concerned the service of process on ministers of foreign affairs while on official
business in the US.¹⁵¹ There is room left to argue that ministers of foreign affairs
are not immune while in US territory on a private visit.
The available conventions and case law hardly constitute a general and con-
sistent state practice formative of a rule of customary international law extending
immunity beyond the diplomatic immunity available to special missions. So how
did the Institut de Droit International and the ICJ support their conclusions as
to the scope of the immunity of heads of government and foreign ministers? The
reasoning of the ICJ is most revealing in this respect. The Court commenced its
argument stating that ‘in international law it is firmly established that . . . certain
holders of high-ranking office in a State, such as the Head of State, the Head
of Government and Ministers for Foreign Affairs, enjoy immunities from jur-
isdiction in other States, both civil and criminal.’¹⁵² Referring to the Vienna
Conventions on Diplomatic and Consular Relations and to the Convention on
Special Missions, it considered that ‘[t]hese conventions . . . do not . . . contain any
provision specifically defining the immunities enjoyed by Ministers for Foreign
Affairs. It is consequently on the basis of customary international law that the
Court must decide the questions relating to the immunities of such Ministers’.¹⁵³
The Court then embarked on a most intriguing argumentation. After it had
pointed out that customary international law granted immunity to ministers
of foreign affairs, not for their personal benefit but to ensure the effective per-
formance of their functions, the Court proposed that ‘[i]n order to determine the
extent of these immunities, the Court must therefore first consider the nature of
the functions exercised by a Minister for Foreign Affairs.’¹⁵⁴ The Court consid-
ered that the minister of foreign affairs is in charge of a government’s diplomatic
activities and represents the state in international negotiations. Like the head
of state and the head of government he is presumed to have full powers to act
on behalf of the state by virtue of his office, hence without the need to present
¹⁴⁹ Republic of the Philippines v Marcos 665 F Supp 793 (US, DC for the Northern District of
California, 1987) 797–8. Cf also El-Hadad v Embassy of the United Arab Emirates 69 F Supp 2d 69
(US, DC for the District of Columbia, 1999) 82 fn 10; F 3d 29 (2000).
¹⁵⁰ Tachiona v Mugabe (US, 2001).
¹⁵¹ The case of Saltany v Reagan did concern a civil claim instigated against a foreign head of
government while not present within US territory.
¹⁵² Arrest Warrant Case, 20–1, § 51.
¹⁵³ ibid 21, § 52.
¹⁵⁴ ibid § 53.
letters of credence.¹⁵⁵ To fulfil these duties, the Court considered, the minister is
required to travel abroad frequently and he ‘must be in a position freely to do so
whenever the need should arise’.¹⁵⁶ Accordingly, the Court concluded, ‘the func-
tions of a Minister for Foreign Affairs are such that, throughout the duration of
his or her office, he or she when abroad enjoys full immunity from criminal juris-
diction and inviolability. That immunity and inviolability protect the individual
concerned against any act of authority of another State which would hinder him
or her in the performance of his or her duties.’¹⁵⁷
The form of argumentation of the Court is remarkable. The scope of the law
argument of the Court falls short in light of the limits of coherent argument on
the ascertainment of customary international law discussed in chapter 2 of this
study. In complete disregard of state practice—notably even the limited practice
that was available—the Court derived the scope of immunity from an assessment
of what is necessary to protect the functions of a minister of foreign affairs. The
argumentation of the Court should have been preceded by proof of the existence
of a rule of customary international law providing immunity to ministers of for-
eign affairs on functionality considerations. When such a rule is accepted, the
rationale of the rule may indeed be helpful in the determination of its scope if
uniform state practice is lacking. In this sense Ogdon argued in 1936 that
[i]f a question confronting a domestic court calls for the solution of a problem pertaining
to a matter of diplomatic immunity where no universally accepted practice points to the
existence of a decisive and applicable rule, the tribunal may feel itself free to apply the
standard of what is necessary and adequate as a test in determining the existence or scope
of the immunity that is sought.¹⁵⁸
In the absence of proof that a rule of customary international law exists the Court
can only be seen to approach the ne impediatur legatio principle not as a material
cause of custom but rather as a formative source. The immunity of ministers of
foreign affairs thus acquires the unmistakable flavour of a necessary rule of inter-
national law. In chapter 2 it was explained that the form of such argument is not
necessarily flawed—in particular it was argued that the minimum scope of the
rule of state immunity can thus be ascertained. In the field of the immunities we
discuss in this chapter, the reasoning is however clearly out of place.
In her dissenting opinion Judge Van den Wyngaert criticized the decision of
the Court on this point. She pointed out that:
It is not sufficient to compare the rationale for the protection from suit in the case of
diplomats, Heads of State and Foreign Minister to draw the conclusion that there is a
rule of customary international law protecting Foreign Ministers: identifying a common
raison d’ être for a protective rule is one thing, elevating this protective rule to the status of
¹⁵⁵ Cf art 7.2.a of the 1969 Vienna Convention on the Law of Treaties.
¹⁵⁶ Arrest Warrant Case, 22, § 53.
¹⁵⁷ ibid § 54.
¹⁵⁸ M Ogdon (1936) 206.
customary international law is quite another thing. The Court should have first exam-
ined whether the conditions for the formation of a rule of customary law were fulfilled in
the case of incumbent Foreign Ministers . . .
In the brevity of its reasoning, the Court disregards its own case law on the subject on
the formation of customary international law. In order to constitute a rule of customary
international law, there must be evidence of state practice (usus) and opinio juris to the
effect that this rule exists.¹⁵⁹
The blunt statement of the rule by the Court is unfortunate, but not insuperable.
That ministers of foreign affairs are protected by a form of diplomatic immunity
in order to be able to exercise their functions is widely accepted.¹⁶⁰ Much more
problematic is the substance of the Court’s argumentation. The Court argued that
no distinction can be drawn between acts performed by a Minister for Foreign Affairs
in an ‘official’ capacity, and those claimed to have been performed in a ‘private capacity’,
or, for that matter, between acts performed before the person concerned assumed office
as Minister for Foreign Affairs and acts committed during the period of office. Thus, if
a Minister for Foreign Affairs is arrested in another State on a criminal charge, he or she
is clearly thereby prevented from exercising the functions of his or her office. The conse-
quences of such impediment to the exercise of those official functions are equally serious,
regardless whether the Minister for Foreign Affairs was, at the time of arrest, present in
the territory of the arresting State on an ‘official’ visit or a ‘private’ visit . . . Furthermore,
even the mere risk that, by travelling to or transiting another State a Minister for Foreign
Affairs might be exposing himself or herself to legal proceedings could deter the Minister
from travelling internationally when required to do so for the purposes of the perform-
ance of his or her official functions.¹⁶¹
The issuance of the arrest warrant with the purpose to enable the arrest of Yerodia
on Belgian territory was hence held to violate the personal immunity of the min-
ister even though the warrant was explicitly qualified in respect of official visits.¹⁶²
The conclusion that the functions of a minister of foreign affairs require a full
immunity from foreign criminal jurisdiction whenever the minister is abroad
stretches the functionality argument too far. It was argued earlier that the ne
¹⁵⁹ Arrest Warrant Case, Dissenting Opinion Judge Van den Wyngaert, 143, § 11 and § 12. Cf
also M Kamto, ‘Une troublante ‘immunité totale’ du ministre des affaires étrangères’ (2002) 35
RBDI 518, 519–23.
¹⁶⁰ Cf ch 4 § 2.1.2.2 above.
¹⁶¹ Arrest Warrant Case, 20, § 55.
¹⁶² ibid 29, § 70. See on qualification also 27, § 65 and 28–9, § 68. The Belgian investigating
judge issuing the warrant noted the following: ‘Pursuant to the general principle of fairness in
judicial proceedings, immunity from enforcement must, in our view, be accorded to all State rep-
resentatives welcomed as such on to the territory of Belgium (on ‘official visits’). Welcoming such
foreign dignitaries as official representatives of sovereign States involves not only relations between
individuals but also relations between States. This implies that such welcome includes an under-
taking by the host State and its various components to refrain from taking any coercive measures
against its guest and the invitation cannot become a pretext for ensnaring the individual concerned
in what would be labelled a trap. In the contrary case, failure to respect this undertaking could give
rise to the host State’s international responsibility.’ (28–9, § 68).
impediatur legatio rationale does not guarantee the actual undisturbed exercise of
the functions by any specific individual but rather ensures—on a more abstract
level—that the functions can in theory be exercised without disturbance. A dip-
lomatic agent therefore only enjoys immunity from the jurisdiction of the state
in which he exercises his official functions. Of course, the arrest in state A of the
ambassador of state B accredited in state C hinders the exercise of the diplomatic
functions by this particular ambassador. The exercise of the diplomatic function
does however not require travels in third states—other than transit states—and
the rule of diplomatic immunity based on the functionality rationale does not
extend its protection to diplomatic agents travelling in third states. The Court
decided otherwise in respect of ministers of foreign affairs. The arrest of such a
person while on a private visit abroad, the Court considered, clearly prevents him
from exercising the functions of his office.¹⁶³
The interpretation of the scope of the rule seems to be inspired by the scope
of the rule of head of state immunity, even though in the Arrest Warrant case
the analogy remained largely unarticulated. The reports of the Institut de Droit
International are more instructive in this respect. Verhoeven rhetorically won-
dered ‘[p]ourquoi faire au chef de gouvernement un sort different du chef de
l’Etat, alors qu’il exerce souvent des functions internationals bien plus étendues
que ce dernier?’ The same, he argued, goes for the minister of foreign affairs.¹⁶⁴
It is hard to see, he concluded after a discussion of the functions of these three
offices, how ‘une distinction puisse sérieusement être établie entre eux’.¹⁶⁵
The analogy is based on a flawed understanding of the rationale of the rule of
head of state immunity. It is in this respect interesting to note that Verhoeven
considered that a difference of treatment of heads of state on the one hand and
heads of government, and—as he initially argued—ministers of foreign affairs
¹⁶³ It is noted that in their Joint Separate Opinion Judges Higgins, Kooijmans and Buergenthal
did explicitly recognize that ministers of foreign affairs are not entitled to the same immunities as
Heads of State but found the absolute immunity from criminal jurisdiction to inhere—as the court
did—in the functionality rationale. They argued in relevant part that ministers of foreign affairs
‘may not be subjected to measures which would prevent effective performance of the functions of
a Foreign Minister. Detention or arrest would constitute such a measure and must therefore be
considered an infringement of the inviolability and immunity from criminal process to which a
Foreign Minister is entitled’, 87–8, § 81–4.
The decision of the court has an obvious effect on judicial and doctrinal thinking. UK judges,
for example, refused to issue a warrant for arrest on allegations of crimes against international
law in respect of the head of state of Zimbabwe and the minister of defence of Israel Shaul Mofaz
because of the personal immunity of these foreign state officials, cf C Warbrick, ‘Immunity and
International Crimes in English Law’ (2004) 53 ICLQ 769. Cf also eg C Wickremasinghe (2003)
400: ‘It now seems that serving Heads of Government and serving Ministers for Foreign Affairs
enjoy immunity from jurisdiction ratione personae under international law to a similar extent as
Heads of State, since they perform comparable functions in representing their States in inter-
national relations.’
¹⁶⁴ J Verhoeven (Rapporteur Institut de Droit International), Les immunités de juridiction et
(2000–01) 69 AIDI 482, 543 § 42.
¹⁶⁵ ibid 545 § 43.
on the other ‘peut se concevoir dans un système qui fonde exclusivement ce statut
sur la “représentativité” du chef de l’Etat, lequel en incarne en quelque sorte la
personnalité juridique. Elle ne se comprend guère si une justification purement
fonctionnelle est conférée aux privilèges et immunités dont il bénéficie, ainsi que
cela ne paraît pas contestée dans la pratique contemporaine.’¹⁶⁶ Since Verhoeven
considered the rule of head of state immunity to protect nowadays ‘des besoins
strictement fonctionnels’ he could not but argue that the same rule had to extend
to heads of government and ministers of foreign affairs who in practice often have
more extensive international functions as heads of state.¹⁶⁷
It was explained in section 2.2.1 of this chapter that the scope of head of state
immunity can in fact not be explained on the basis of the functionality ration-
ale. It was argued that the scope of the rule of head of state immunity can only
be understood from the perspective of archaic notions of dignity of kings and
princes and the incarnation of the state in the person of its ruler. These consid-
erations do not apply with the same force to heads of government and ministers
of foreign affairs. In Oppenheims’s International Law we read that the head of
government ‘does not represent the international persona of the state in the same
way in which the Head of State does’.¹⁶⁸ Watts elaborated on this theme stating
that ‘heads of government and foreign ministers . . . do not symbolize or personify
their States in the way that Heads of States do. Accordingly, they do not enjoy
in international law any entitlement to special treatment by virtue of qualities of
sovereignty or majesty attaching to them personally.’¹⁶⁹ The argument against
equating the immunity of heads of government and ministers for foreign affairs
with the immunity of heads of state is therefore a strong one. In anticipation of
chapter 6 of this study it is noted moreover that the scope of personal immunities
should be narrowly interpreted in view of the conflicting rights of individuals
under international human rights law. Heads of government and ministers of for-
eign affairs are the ultimate example of ad hoc diplomatic agents that are covered
by a form of personal diplomatic immunity. This immunity protects them while
on official visits abroad. Head of state immunity extends beyond that. Since
the rule is not strictly based on functionality considerations the position of the
head of government and the minister of foreign affairs cannot be determined by
analogy with the position of the head of state.
¹⁶⁶ ibid 543, § 42. Cf also 498.

¹⁶⁷ Cf p 180 above.
¹⁶⁸ R Jennings and A Watts (eds) (1992) i 1033, § 445.
¹⁶⁹ A Watts (1994) 102. Judge Van den Wyngaert, argued in her Dissenting Opinion that
‘[f]oreign Ministers do not “impersonate” the State in the same way as Heads of State, who are
the State’s alter ego’, § 16. Cf also the Dissenting Opinion of Judge Al-Khasawneh. The Judge
argued that in contrast with heads of state, the minister of foreign affairs ‘does not, in any sense,
personify the State’ and immunity from criminal jurisdiction does not apply on private visits, § 2
and 4. In addition, the Judge noted that in contrast to diplomatic agents the host state cannot influ-
ence who occupies the post of minister of foreign affairs and cannot declare such a person persona
non grata, § 1.
On the specific facts of the Arrest Warrant case this study would hence con-
clude differently than the ICJ.¹⁷⁰ Ministers of foreign affairs cannot be equated to
heads of state. Their personal immunity only applies during official visits abroad.
As long as Belgium clearly states that it will not act upon the warrant during
such official visits of the minister—as in fact it did¹⁷¹—its actions may not be in
accordance with comity but they are not in violation of international law. If—as
The Congo claimed¹⁷²—the warrant hindered official travel of its minister, this
cannot be ascribed to the arrest warrant but only to a mistaken interpretation
thereof.
2.3 The Arrest Warrant Case: Obligations of Third States

under Personal Immunity Rules
The decision of the ICJ in the Arrest Warrant case forces us to reconsider the
obligations of third states under personal immunity rules.¹⁷³ Belgium was found
to have violated the immunity of the Congolese minister of foreign affairs on
two separate accounts. It was explained above that the issuance of the arrest
warrant violated Yerodia’s immunity from Belgian jurisdiction. In addition, how-
ever, the Court engaged the question whether the international circulation of the
warrant constituted a separate violation of the immunity.
The arrest warrant was communicated to Interpol in June 2000 but Belgium
did not request an Interpol red notice until after the abdication of Yerodia as
minister for foreign affairs. Belgium argued that the circulation of the warrant
did not violate the sovereignty of DRC because the warrant had no legal effect on
foreign territory. It stated that
the warrant does not create any obligations for the authorities of any other State to arrest
Mr. Yerodia in the absence of some further step by Belgium completing or validating the
arrest (such as a request for the provisional detention of Mr. Yerodia), or the issuing of an
arrest warrant by the appropriate authorities in the State concerned following a request to
do so, or the issuing of an Interpol Red Notice.¹⁷⁴
The Court did not agree. Since the circulation of the arrest warrant was ‘to
establish a legal basis for the arrest of Mr. Yerodia . . . abroad and his subsequent
extradition to Belgium’ the ‘nature and purpose’ of the warrant was such that it
‘effectively infringed’ the immunity of Yerodia. The Court considered that even
in the absence of ‘further steps’ by Belgium the ‘mere international circulation of
¹⁷⁰ See A Cassese (2002) 855 for support for this part of the decision. Cf ch 5 § 2.3.1 below for
an analysis of the decision on the question whether the immunity of ministers of foreign affairs is
available when a minister is charged with war crimes and crimes against humanity.
¹⁷¹ Arrest Warrant Case, 23 and 25, § 65, 68 and 70.
¹⁷² ibid 26, § 71.
¹⁷³ Arrest Warrant Case.
¹⁷⁴ ibid 27, § 66.
the warrant . . . could have resulted . . . in his arrest while abroad’. The circulation
of the warrant was therefore held to constitute a violation of the rights of DRC.¹⁷⁵
Judges Higgins, Kooijmans, and Buergenthal further explained in their Separate
Opinion that ‘[a]n international arrest warrant, even though a Red Notice has not
yet been linked . . . is already a statement of willingness and ability to act and as
such may be perceived as a threat so to do at a moment of Belgium’s choosing.’¹⁷⁶
Upon close consideration of the Court’s reasoning it can only be concluded
that the circulation was not held to violate the immunity from Belgian jurisdic-
tion but rather the immunity Yerodia enjoyed from foreign jurisdictions. The
considerations are therefore applicable to diplomatic and head of state immunity
alike.¹⁷⁷ Accordingly, in the view of the Court, personal immunity rules do not
only oblige states to refrain from establishing jurisdiction over certain individu-
als; they also oblige states not to request other states—regardless of whether such
request has binding force—to violate these rules. The exercise of functions can be
impeded by actions of third states that do not have jurisdiction over the territory.
This author is not completely persuaded by the argument. In fact, the dissent
of Judge Van den Wyngaert on this point carries some force. According to the
judge the personal immunity from foreign jurisdictions would only be violated
if Belgium asserted ‘enforcement jurisdiction’. The circulation of the warrant,
she subsequently argued, does not qualify as such since the warrant could not
be enforced in third countries without validation by the authorities of the state
where the person mentioned in the warrant is found.¹⁷⁸ This is true—this author
cares to add—for non-binding and binding requests alike. The requesting state
does not in any way assert enforcement jurisdiction by issuing a binding request
for arrest or extradition. The receiving state is merely confronted with two com-
peting obligations under international law. Whether or not the immunity from
jurisdiction of the visiting official is violated depends entirely on the actions of
the receiving state. Arguably, the argument that the international circulation of
an arrest warrant entails the responsibility of the requesting state under inter-
national law because it induces a risk that the receiving state reacts positively
to the non-binding request, together with the risk that a requesting state moves
to a binding request and the risk that the receiving state gives prevalence to the
¹⁷⁵ ibid 29–30, § 70 and 71.

¹⁷⁶ ibid Joint Separate Opinion Judges Higgins, Kooijmans, and Buergenthal, 84, § 69. The
judges however did not agree with the majority on the appropriate remedy. They argued that
‘the illegal consequences attaching to the warrant . . . ceased’ when Yerodia abdicated, 88, § 89.
¹⁷⁷ The court focuses on the risk of arrest in a state where the person enjoys immunity. Had the
court considered that the warrant violated the immunity from Belgian jurisdiction the decision
would not apply to diplomatic agents that are not immune from Belgian jurisdiction.
¹⁷⁸ Arrest Warrant Case, Dissenting Opinion Judge Van den Wyngaert, 180–2, § 78. Cf also
Judge Oda ‘It bears stressing that the issuance of an arrest warrant by one State and the inter-
national circulation of the warrant through Interpol have no legal impact unless the arrest request is
validated by the receiving State . . . There is . . . some doubt whether the Court itself properly under-
stood this . . . The crucial point in this regard is not the issuance or international circulation of an
arrest warrant but the response of the State receiving it.’ Dissenting Opinion Judge Oda, 52, § 13.
obligations towards the requesting state in violation of its obligations towards the
home state of the foreign official, stretches the material scope of personal immun-
ity rules too far.
3 Concluding Remarks
Diplomatic immunity and head of state immunity extend to acts that fall squarely
within the essential competence of the forum state, and do not entail immun-
ity from legal liability. In contrast to state immunity and functional immunity,
diplomatic immunity and head of state immunity are veritable immunities from
jurisdiction. The classic definition of such immunity is that it obliges courts to
refrain from the exercise of otherwise available jurisdiction. In chapter 2 of this
study it was explained that it is better stated that an immunity from jurisdiction
applies distinctly from jurisdictional or liability questions. While the normal jur-
isdictional rules do logically deserve consideration before the rule of personal
immunity—even though in practice courts do not necessarily follow this logical
order¹⁷⁹—the procedural immunity from jurisdiction prevents the courts from
an inquiry into their essential competence or the substantive liability of the
defendant.
The rules moreover are conspicuous examples of rules of customary inter-
national law and are hence—in the terms introduced by Anzilotti and set out
in chapter 2 of this study—voluntary rather than necessary immunity rules.¹⁸⁰
This is not to say that the function of the law of diplomatic immunity is trivial
¹⁷⁹ In the Arrest Warrant case the ICJ for example did not engage the question whether Belgium
could exercise universal jurisdiction in absentia over Mr Yerodia. Several judges however expressed
their dissatisfaction with the order in which the Court approached the issues, cf ch 5 § 1 below.
¹⁸⁰ Cf also H Grotius (1625) ii, 193–200. Even though the rule of head of state immunity may
reflect the idea of personification of the state in its ruler, it cannot be said that the rule has a neces-
sary character since the personification concerns a fiction that is not a constitutional principle of
the international legal order.
In this regard it is also interesting to note that in the Case Concerning United States Diplomatic
and Consular Staff in Tehran (United States of America v Iran) (Provisional Measures) the ICJ ration-
alized the rule of inviolability of diplomatic agents in natural law terms. The Court held ‘there is
no more fundamental prerequisite for the conduct of relations between States than inviolability
of diplomatic envoys and embassies, so that throughout history nations of all creeds and cultures
have observed reciprocal obligations for that purpose; and [ . . . ] the obligations thus assumed, not-
ably those for assuring the personal safety of diplomats and their freedom from prosecution, are
essential, unqualified, and inherent in their representative character and their diplomatic function’.
ICJ Reports 1979 7, 19, § 38 (emphasis added). This type of reasoning was common when Von
Pufendorf wrote in 1672 that ambassadors ‘are inviolable by the very law of nature. For, since per-
sons of that kind are necessary, in order to win or to preserve peace, which the very law of nature
bids us embrace in all honourable ways, it is well understood that the same law has also provided
for the safety of those persons without whom the end which it orders cannot be obtained’. S Von
Pufendorf, Elementorum jurisprudentiae universalis libri duo (1672), trans by W Abbott Oldfather
(Oxford 1931) ii Book I, Definition XII, 166–7. It is questionable, however, whether the reasoning
can convince in light of the theory of custom formation set out in ch 2 of this study.
compared to the law of state immunity—indeed the International Court of
Justice considered in the Teheran Hostages Case that ‘the institution of diplomacy,
with its concomitant privileges and immunities, has withstood the test of cen-
turies and proved to be an instrument essential for effective co-operation in the
international community, and for enabling States, irrespective of their differing
constitutional and social systems, to achieve mutual understanding and to resolve
their differences by peaceful means’.¹⁸¹ The function of the law of head of state
immunity—the protection of the dignity of the office of head of state—does
compare somewhat meagrely to that of both diplomatic and state immunity.
There is no need to dwell on the question as to the parameters of coherent
arguments on the influence of international human rights law and international
criminal law on rules of personal immunity. The scope of the rules can only be
ascertained inductively—although in the absence of uniform state practice the
material cause of the state practice may serve as a guiding principle. Arguments
that proceed from reason or logic are hence necessarily policy arguments. In add-
ition, state of the law arguments may argue that personal immunity rules are
invalidated or forfeited as long as this is consistent with the epistemology of inter-
national law. In respect of a forfeiture argument it must however be realized that
personal immunities do not concern personal rights. The argument that the office
holder forfeits his rights under the rule when he engages in certain behaviour is
hence not coherent in form.
While the debate on the influence of international human rights law and inter-
national criminal law on personal immunity rules is not seriously troubled by
misconceptions of the nature and substance of the immunity rules, it arguably
fails to focus its attention on the most pressing issue. On the basis of the discus-
sion of the nature and substance of personal immunities rules it should be possible
to develop forceful human rights-based policy arguments against these rules. Just
like the rule of absolute immunity, the rules of diplomatic immunity and head
of state immunity may shield an otherwise liable person from the normal jur-
isdiction of the forum state and may therefore deprive private individuals from
their day in court. Accordingly, obligations under personal immunity rules may
clash with the obligation to guarantee the right of access to court and the right to
equality before the law. Personal immunities entail an additional problem. Since
these immunities also apply to serious crimes committed on the territory of the
forum state, the obligations under these rules moreover may clash with the obliga-
tions of states to secure respect for human rights within their territory. Under the
European Convention of Human Rights, for example, states may have positive
obligations to secure the effective respect for the rights under the Convention also
in the sphere of the relations of individuals between themselves. The European
¹⁸¹ Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of
America v Iran) (Provisional Measures), ICJ Reports 1979 7, 19, § 39 (emphasis added). It is in fact
recalled that even jus cogens norms are in principle developed through the customary process.
Court of Human Rights has for example decided that when ‘fundamental val-
ues and essential aspects of private life are at stake . . . [e]ffective deterrence is
indispensable’.¹⁸² Personal immunities—especially diplomatic immunity—are
at times deliberately used as a cloak for the commission of crimes. But more in
general it must be realized that the lack of deterrence may underlie lawless behav-
iour also in a less spiteful sense. Even neglect of rules that may seem relatively
trivial—like traffic regulations—may seriously violate the rights of others. Can a
state allow such ‘lawless’ creatures on its territory without violating its obligations
under the ECHR? Should it not at least make sure beforehand that immunity
does not equal impunity? These policy arguments have arguably yet to be real-
ized to their full potential. It will be argued later in this study that the assessment
of the European Court of Human Rights, that the right of access to court is not
violated by immunity rules that form part of international law, does not satis-
factorily deal with the tension between the rights and interests of states and the
rights and interests of private individuals inherent in immunities of states and its
officials.¹⁸³ The danger of a clash of interests looms particularly large in respect of
personal immunity rules. It will be argued in chapter 6 of this study that there is
room for coherent policy arguments calling for a reconsideration of the balance
of interests reflected in the rules set out above.
¹⁸² X and Y v The Netherlands Series A-91, 8 EHRR 235 (ECHR, 1985).
¹⁸³ Al-Adsani v United Kingdom (ECHR, 2001); Fogarty v United Kingdom 34 EHRR 302, 123
ILR 53 (ECHR, 2001); McElhinney v Ireland 34 EHRR 322, 123 ILR 73 (ECHR, 2001). Cf ch 6
§ 3.2 below.
5
The Immunity of State Officials in the Light
of Obligations of Individuals
under International Law
1 Introduction
International law consists of the body of principles and rules that states agree
apply within the international legal order. States are accordingly the natural
subjects of international law. Some of the rules of international law may how-
ever, in addition, regulate the legal position of non-state entities. While initially
states only set out to delimit their competing sovereignties, more and more rules
regulate the cooperation between states, and states have even assumed uniform
standard setting in areas that do not concern interstate relations at all. Chapter 6
of this study discusses the development of rules recognizing rights of individuals
under international law. This chapter focuses on the fact that states can also, as
the Permanent Court of International Justice already noted in the Jurisdiction of
the Courts of Danzig Case, create obligations for individuals through international
agreement.¹ It stands to reason that such obligations can equally develop under
customary international law.
It is no coincidence that the early examples of individual responsibility under
international law—piracy, slavery, violence against diplomatic agents, illegitim-
ate warfare²—all concerned actions of individuals with detrimental transnational
¹ Jurisdiction of the Courts of Danzig (Advisory Opinion) PCIJ Series B no 15 (1928) 17–18.
² Most commentators qualify these offences as crimes against international law (cf eg H Kelsen
(1944) 75–8). Friedmann argued in this regard that ‘[t]here has always been an “international
criminal law,” of modest and ill-defined proportions.’ W Friedmann, The Changing Structure of
International Law (1964) 167. Brownlie, however, argued that these examples concern ‘the pun-
ishment, under national law, of acts in respect of which international law gives a liberty to all
states to punish, but does not itself declare criminal’, I Brownlie (2003) 303, cf in this sense also
G Schwarzenberger, ‘The Problem of an International Criminal Law’ (1950) 3 Current Legal
Problems 263, 270. For piracy see eg H Halleck, International Law (3rd edn, 1893) i 54; United
States v Klintock 18 US 144 (US, S Ct, 1820); United States v Pirates 18 US 184 (US, S Ct, 1820).
Cf for other examples KC Randall, ‘Universal Jurisdiction under International Law’ (1988)
66 Texas Law Review 785, 791–8. For slavery see KC Randall, 798–800; United States v The La
The Immunity of State Officials and Obligations of Individuals 201
consequences that were generally not committed under state authority and were
hence not attributable to a state.³ International law imposed obligations directly
on the individual only if no state responsibility could be established.
Over the past century, however, this traditional framework proved no longer
adequate to serve the needs of the international community. The experience of
the two world wars precipitated the development of the principle of individual
responsibility for the most serious violations of international law independent of
the question of state responsibility. The Nuremberg Tribunal famously defended
this decisive turn in international law holding that:
Crimes against international law are committed by men, not by abstract entities, and only
by punishing individuals who commit such crimes can the provisions of international
law be enforced.⁴
Article 6 of the Nuremberg Charter provided for individual responsibility for
crimes against peace, war crimes, and crimes against humanity, and today the
principle is firmly established in the international legal order.⁵ Let us take a closer
look at this development.
In the nineteenth century states had started to codify and develop rules on
aspects of interstate warfare in conventional law. In 1864 at a conference in
Geneva the delegates of 16 European nations adopted the Convention for the
Amelioration of the Condition of the Wounded in Armies in the Field.⁶ Four
years later the Declaration of St Petersburg called on States not to use arms that
cause unnecessary suffering and prohibited the use of certain explosive projectiles
Jeune Eugenie 26 F Cas 832 (US, Circuit Court for the District of Massachusetts, 1822) 843.
For violence against diplomats see: Respublica v Longchamps 1 US 111 (US, Pennsylvania S Ct,
1784); United States v Ortega 24 US 467 (US, S Ct, 1826). Cf on illegitimate warfare eg H Kelsen
(1944) 77.
³ Cf in respect of the crime of piracy eg WE Hall, A Treatise on International Law (7th edn,
1917) 268–9.
⁴ Nuremberg Judgment (International Military Tribunal, 1946), reprinted in (1947) 41 AJIL
172, 221. Cf L Oppenheim (ed), The Collected Papers of John Westlake (1914) 269–70 for a very simi-
lar rationalization: ‘The men who form a state are not allowed to disclaim their part in the offences
alleged against it . . . And this is just. Whatever is done or omitted by a state is done or omitted by
the men who are grouped in it, or at least the deed or the omission is sanctioned by them. a state is
not a self-acting machine. The impulse which its wheels receive can only be a human impulse . . .’
⁵ Agreement for the Prosecution and Punishment of Major War Criminals of the European
Axis and Establishing the Charter of the International Military Tribunal, Annex, 1951 82
UNTS 279.
⁶ Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400
Grammes Weight (1868), reprinted in D Schindler and J Toman (eds), The Laws of Armed Conflict:
A Collection of Conventions, Resolutions and other Documents (4th edn, 2004) 91. The Convention
followed the inception of the International Committee of the Red Cross in 1863—or the
International Committee for the Relief of the Military Wounded as it was called until 1876. Cf
G Best, Humanity in Warfare: The Modern History of the International Law of Armed Conflicts (1980)
for earlier developments.
that ‘uselessly aggravate the sufferings of disabled men’.⁷ The Declaration stated
that a balance needed to be achieved between ‘the necessities of war’ and ‘the
requirements of humanity’. The Peace Conferences at The Hague in 1899 and
1907 adopted conventions defining the laws and customs of warfare and several
declarations forbidding or limiting certain practices, including attacks on sur-
rendered soldiers, the bombardment of undefended towns, the use of dumdum
bullets, of ‘projectiles the sole object of which is the diffusion of asphyxiating or
deleterious gases’, and of weapons ‘calculated to cause unnecessary suffering’.⁸
In the preamble of these Conventions it was moreover stated that ‘[u]ntil a more
complete code of the laws of war is issued, the High Contracting Parties think it
right to declare that, in cases not included in the Regulations adopted by them,
populations and belligerents remain under the protection and empire of the prin-
ciples of international law, as they result from the usages established between
civilized nations, from the laws of humanity, and the requirements of the public
conscience.’⁹ Although the First World War had revealed an immeasurable and
disheartening gap between the theory of war-law and the practice of warfare,
states continued to elaborate their conventional obligations by the 1925 Geneva
Protocol on Chemical and Bacteriological Warfare prohibiting the use of asphyxi-
ating and poisonous gases, and the two 1929 Geneva Conventions relating to the
treatment of prisoners of war and the wounded and the sick.¹⁰
In addition to these early rules of international humanitarian law—jus in bello,
the law of armed conflict, or the law of war as it was initially termed—the end of
the First World War prompted efforts to prohibit the resort to war altogether—jus
ad bellum. To this effect the General Treaty for the Renunciation of War—better
known as the Kellogg–Briand Pact—was concluded in 1928.¹¹
It can accordingly be conceded that at the start of the Second World War many
of the norms under which the Nuremberg Tribunal would later judge the conduct
of individuals were unquestionably part of international law. However, the indi-
vidual responsibility under international law for the violations of these norms of
state officials acting under government orders is clearly a distinct question.
Let us start with the second of these two issues. In early twentieth century doc-
trine the question of individual responsibility for war crimes is often seen to pivot
on the distinction between lawful and unlawful belligerency. It was explained in
⁷ Declaration of St Petersburg (1968), reprinted in Conventions and Declarations between the

powers concerning war, arbitration and Neutrality (1915).
⁸ Hague Convention II 1899, and Hague Convention IV 1907 on the Laws and Customs of
War on Land, reprinted in Conventions and Declarations between the powers concerning war, arbitra-
tion and Neutrality (1915).
⁹ This is commonly known as ‘the Martens Clause’, cf A Cassese, ‘The Martens Clause: Half a
Loaf or Simply Pie in the Sky?’ (2000) 11 EJIL 187.
¹⁰ Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and
of Bacteriological Methods of Warfare, 94 LNTS 65; Convention Relative to the Treatment of
Prisoners of War, 118 LNTS 343.
¹¹ The General Treaty for the Renunciation of War (1928) 94 LNTS 57.
chapter 3 of this study that while acts of warfare would normally violate provisions
of national law prohibiting murder, assault, destruction of property and the like,
lawful combatants do not incur personal responsibility under the national law
of the adversary state. Unlawful combatants befalls a different fate. Combatants
that do not wear a distinctive emblem or those that violate the laws and principles
of war in any other way are in principle punishable under the national law of the
adversary state. Accordingly, the Institut de Droit International wrote in its 1880
Manual of the Laws of War on Land that ‘[i]f any of the [rules on warfare] be
violated, the offending parties should be punished, after a judicial hearing, by the
belligerent in whose hands they are.’¹²
Many commentators at the time did not question how the concept of unlawful
belligerency related to the ‘act of state’ doctrine of the McLeod case—or the rule
of functional immunity.¹³ Hereshoff Bartlett formulated this position in the fol-
lowing terms:
Pending hostilities the armed forces have authority to do all that the laws of war permit,
but they have no right to violate those laws with impunity and transgress them. To do
so places them on a level with bandits and outlaws and deprives them of the protection
which the laws of nations and the articles of war extend to justifiable warfare . . . punish-
able . . . irrespective of the fact whether the offender was an officer or soldier acting under
the dominion of his sovereign.¹⁴
The only issue that was seen to possibly interfere with the individual responsibil-
ity of unlawful combatants was the principle of respondeat superior.¹⁵ This prin-
ciple is however clearly distinct from the principle of non-personal responsibility
¹² Institut de Droit International, Manual of the Laws of War on Land 1880, (1881–82) AIDI
174. Art 84 of the Manual therefore provided: ‘Offenders against the laws of war are liable to the
punishments specified in the penal law.’
¹³ Cf eg JW Garner, ‘Punishment of Offenders against the Laws and Customs of War’ (1920)
14 AJIL 70; L Renault, ‘De l’application du droit pénal aux faits de guerre’ (1918) 25 RGDIP 5;
CA Hereshoff Bartlett, ‘Liability for Official War Crimes’ (1919) 35 LQR 177.
¹⁴ CA Hereshoff Bartlett, ibid 178–9.
¹⁵ Latin for ‘let the master answer’: the responsibility for actions by subordinates taken in the
execution of superior orders lies exclusively with the superior. Cf in general on the different views
on this issue JW Garner (1920) 70. L Oppenheim, International Law, A Treatise (AD McNair (ed)
4th edn, 1926) ii 410–11, § 253 stated that ‘[v]iolations of rules regarding warfare are war crimes
only when committed without an order of the belligerent Government concerned. If members of
the armed forces commit violations by order of their Government, they are not war criminals, and
may not be punished . . . In case members of forces commit violations ordered by their command-
ers, the members may not be punished, for the commanders are alone responsible, and the latter
may, be punished as war criminals on their capture by the enemy’; WE Hall (1917) 439; L Renault
(1918) 26–8. In the sixth edition Oppenheim’s International Law changed position. We read: ‘The
fact that a rule of warfare has been violated in pursuance of an order of the belligerent Government
or of an individual belligerent commander does not deprive the act in question of its character
as a war crime; neither does it, in principle, confer upon the perpetrator immunity from punish-
ment by the injured belligerent. A different view has occasionally been adopted . . . but it is difficult
to regard it as expressing a sound legal principle.’ L Oppenheim, International Law, A Treatise
(H Lauterpacht (ed) 6th edn, 1940) ii 253–4, § 253.
for acts of state. It shifts the responsibility to the commander—irrespective of the

authority with which that commander had acted.
This reasoning does not convince. It is recalled that state officials are not per-
sonally responsible for acts committed as arm or mouthpiece of their home state,
and that they are assumed to have thus acted when they exercise state authority
under international law. Unlawful combatants that engage in espionage or sabo-
tage—like in Ex parte Quirin—do not qualify as such.¹⁶ Also unlawful combat-
ants that have violated the rules of warfare acting on individual impulses can be
easily excluded from the rule. The individual responsibility of these two categor-
ies for crimes under the national law of the adversary state is uncontroversial.
However, what is the position of unlawful combatants violating international
law while engaged in military activities and while acting under orders of a foreign
government? The lawful–unlawful combatant distinction is a distinct principle
that does not replace the act of state principle. If the McLeod principle no longer
applied to acts violating the rules of war this needed at least to be supported by
forceful arguments.
Several scholars writing in the first half of the previous century did in fact
argue that soldiers violating the rules of war while participating in military oper-
ations on orders of their government did not incur individual responsibility.
These scholars agreed that ‘[i]nternational law had long recognized the right of a
belligerent to put on trial and summarily execute members of the armed forces of
the enemy who were found guilty of violations of the laws of war’ but limited this
rule to violations ‘not part of military operations’.¹⁷ In other words, international
law did not allow the prosecution of state officials employed by a state wilfully
conducting its military operations in violation of the rules of warfare.¹⁸
The second—less fundamental—issue is whether individuals that act in
contravention of the laws of war violate international law or only national law.
International humanitarian law in principle only obliged states. Article 3 of the
1907 Hague Convention, for example, provides as follows: ‘A belligerent party
¹⁶ Cf for Ex p Quirin (US, 1942) ch 3 p 128 above.

¹⁷ Ch G Fenwick, ‘The Progress of International Law During the Past Forty Years’ (1951-II)
79 RdC 1, 62–3 (emphasis added). Cf also GA Finch, ‘Jurisdiction of Local Courts to Try Enemy
Persons for War Crimes’ (1920) 14 AJIL 218; G Manner, ‘The Legal Nature and Punishment of
Criminal Acts of Violence Contrary to the Laws of War’ (1943) 38 AJIL 407; A Verdross, Völkerrecht
(1937) 298; H Kelsen (1944) 79ff. Finch referred to several decisions of the US Supreme Court
confirming this (eg Dow v Johnson 100 US 158 (1879)). While Hereshoff Bartlett argued that the
fact that the Supreme Court in these cases did not allow prosecution of lawful combatants meant
that prosecution of unlawful combatants was possible (‘Liability for Official War Crimes’ (1919)
35 LQR 177, 186–7), Finch rightly pointed out that the Supreme Court did not allow prosecutions
that alleged the commission of acts in violation of the laws of war.
¹⁸ Röling later distinguished these two categories of unlawful combatants in those that commit
‘individual criminality’ (crimes committed for selfish reasons against the instructions of the own
government) and those that commit ‘system criminality’ (crimes committed on government orders
or encouragement in order to serve the war effort): BVA Röling, ‘The Significance of the Laws of
War’ in A Cassese (ed), Current Problems of International Law, Essays on UN Law and on the Law of
Armed Conflict (1975) 133, 137–8.
which violates the provisions of the said Regulation shall, if the case demands,
be liable to pay compensation. It shall be responsible for all acts committed by
persons forming part of its armed forces.’ In order to ensure the compliance of
their obligations on the international level states did proceed to codify the laws of
war in military penal codes—the 1863 US Lieber Code being the most promin-
ent example.¹⁹ Scholars do not agree on the question whether before Nuremberg
it was accepted that international law imposed obligations directly on the
individual.²⁰
The 1919 Versailles Treaty did not settle these controversies conclusively. The
precedent value of the treaty is in particular limited because Germany consented
to the attribution of individual responsibility to its state officials for the violation
of the laws of war.²¹
What did the Treaty provide? After the First World War the Allied Powers
established a Commission of Fifteen to study the possibility of prosecution and
punishment of war criminals. The Commission reported to the Versailles Peace
Conference that ‘[a]ll persons belonging to enemy countries, however high their
position may have been, without distinction of rank, including Chiefs of States,
who have been guilty of offences against the laws and customs of war or the laws
of humanity, are liable to criminal prosecution.’²² It recommended the establish-
ment of an international tribunal to prosecute individuals suspected of violations
of the laws and customs of war or the laws of humanity.²³
The US members of the Commission opposed the report on several grounds
and annexed reservations to it.²⁴ In the first place the US delegates thought
¹⁹ Instructions for the Government of Armies of the United States in the Field, Prepared by
F Lieber, promulgated as General Orders No. 100 by President Lincoln, 24 April 1863, reprinted in
D Schindler and J Toman (eds) (2004) 3.
²⁰ Cf eg G Manner (1943) 415; RR Baxter (1951), 343–4; H Kelsen (1944) 101–4.
²¹ Cf eg H Kelsen (1994) 110. It is further noted that art 3 of the 1922 Washington Treaty
relating to the Use of Submarines and Noxious Gases in Warfare provided that ‘any person in the
service of any Power who shall violate any of those rules, whether or not such person is under orders
of a governmental superior, shall be deemed to have violated the laws of war and shall be liable to
trial and punishment as if for an act of piracy and may be brought to trial before the civil or military
authorities of any Power within the jurisdiction of which he may be found’. The provision is not
limited to nationals of states party to the treaty and is hence either a violation of international law
or an indication of changing international law on this point.
²² Commission on the Responsibility of the Authors of the War and on Enforcement of
Penalties, Report Presented to the Preliminary Peace Conference, March 29, 1919, reprinted in
(1920) 14 AJIL 95, 117. Cf also the the Joint Declaration of France, UK and Russia on 24 May
1915 warning Turkish leaders that they were personally responsible for the Armenian Massacres:
‘En présence de ces nouveaux crimes de la Turquie contre l’humanité et la civilisation, les gou-
vernements alliés font savoir publiquement à la Sublime-Porte qu’ils tiendront personnellement
responsable desdits crimes tous les membres du gouvernement ottoman ainsi que ce des agents qui
se trouveraient impliqués dans ces pareils massacres’, (1915) 22 RGDIP Documents 215.
²³ Ibid 121–4.
²⁴ Annex II to the Report, Memorandum of Reservations presented by the Representatives of
the United States to the Report of the Commission on Responsibilities, (1920) 14 AJIL 127. Cf also
the reservations of the Japanese delegates: Annex III to the Report, Reservations by the Japanese
Delegation, (1920) 14 AJIL 51.
prosecution should be limited to violations of the laws and customs of war since
the laws and principles of humanity are not ‘a certain standard to be found in
books of authority and in the practice of nations’.²⁵ Second, they opposed the
prosecution of heads of state. Under reference to the Schooner Exchange case they
argued that a head of state is only responsible to his own country. To hold other-
wise, they held, would be ‘denying the very conception of sovereignty’.²⁶ The
delegates underlined that their observations only applied to incumbent heads of
state—‘proceedings against [a head of state who has abdicated or has been repu-
diated by his people] might be wise or unwise, but in any event they would be
against an individual out of office and not against an individual in office and thus
in effect against the state’.²⁷ Finally, and most fundamentally, the delegates cau-
tioned that a newly established international tribunal amounted to the exercise
of ex post facto jurisdiction. They knew, they wrote, ‘of no international statute
or convention making a violation of the laws and customs of war—not to speak
of the laws or principles of humanity—an international crime, affi xing a pun-
ishment to it, and declaring the court which has jurisdiction over the offence’.²⁸
They therefore suggested that ‘the machinery at hand’—meaning the national
courts of the states affected, or, if more states are affected by the same crime, a
tribunal made up of the competent courts of these states—should be utilized
to prosecute the suspects of war crimes rather than ‘an international tribunal
with a criminal jurisdiction for which there is no precedent, precept, practice or
procedure’.²⁹
The Peace Conference reached a compromise. The Versailles Treaty did even-
tually provide for the creation of a special tribunal to prosecute the ex-emperor
William II of Hohenzollern for ‘a supreme offence against international morality
and the sanctity of treaties’.³⁰ In addition, the Treaty provided for the prosecu-
tion of persons ‘accused of having committed acts in violation of the laws and
customs of war’ before the military tribunals of the Allied powers.³¹
Practice failed however to live up to these promises. The Netherlands—where
the emperor had taken refuge after the war—refused to hand William over to
the Allied Powers,³² while Germany was eventually allowed to prosecute other
suspected war criminals itself which resulted in the commonly agreed mock
proceedings known as the Leipzig Trials.³³
²⁵ ibid 133–4 and 144, quotation at 134.

²⁶ ibid 136.
²⁷ ibid 136. Cf also 147–8.
²⁸ ibid 146.
²⁹ ibid 140–2 and 145–7, quotation at 142.
³⁰ Treaty of Peace between the Allied and Associated Powers and Germany (Treaty of Versailles)
1919, Art 227. Notably, the US did not ratify the Treaty because of the inclusion of this article.
³¹ ibid art 228.
³² Cf eg E Decaux, ‘Le statut du chef d’État déchu’ (1980) 26 AFDI 101, 112.
³³ Cf WA Schabas, An Introduction to the International Criminal Court (2nd edn, 2004) 3–4.
The Second World War again incensed the discussion on the individual respon-
sibility of government officials for the waging of war. Already in 1943 the Allied
Powers had stated their intent to bring the Nazi war criminals to justice after the
war.³⁴ At the end of the Second World War the controversy between those that
advocated summary execution of the German political and military leaders and
those that insisted on a trial was decided in favour of the latter when on 8 August
the London Agreement for the Prosecution and Punishment of the Major War
Criminals of the European Axis was signed, to which the Charter establishing the
International Military Tribunal—better known as the Nuremberg Tribunal—
was annexed.³⁵ The Tribunal tried the major war criminals only. It convicted
nineteen of the twenty-four Nazi leaders indicted and imposed the death sen-
tence in twelve cases. Lower ranking officials were prosecuted by Allied mili-
tary tribunals on the basis of Control Council Law no 10 and the International
Military Tribunal for the Far East was established to prosecute crimes against
international law committed on the Eastern front.³⁶
The defendants in the Nuremberg Trials argued that by ignoring the dis-
tinction between norm, and subject of the norm, their prosecution violated
the nullum crimen sine lege principle. In the context of the individual respon-
sibility for crimes against peace, for example, defendants argued that the
Kellogg–Briand Pact ‘does not expressly enact that such wars are crimes, or set
up courts to try those who make such wars’. The Tribunal rejected the argu-
ment reasoning that
[t]he defendants . . . must have known of the Treaties signed by Germany, outlawing the
recourse to war for the settlement of international disputes, they must have known that
they were acting in defiance of all international law when in complete deliberation they
carried out their designs of invasion and aggression. On this view of the case alone, it
would appear that the maxim has no application to the present facts.³⁷
In an a fortiori argument the Tribunal relied on the concept of individual respon-
sibility for war crimes. It argued that since 1907 the prohibitions of the Hague
Convention
³⁴ The Moscow Declaration signed by Roosevelt, Stalin, and Churchill on 1 November 1943,
Declaration of German Atrocities, 1 November 1943, reprinted in (1944 Supplement) 38 AJIL 3,
7–8.
³⁵ Agreement for the Prosecution and Punishment of Major War Criminals of the European
Axis, and Charter of the International Military Tribunal, Annex, 1951 82 UNTS 279. Cf also
The United Nations Commission for the Investigation of War Crimes, Draft Convention for the
Establishment of a United Nations War Crimes Court, Doc C 50(1) 30 September 1944.
³⁶ Control Council Law no 10, adopted 20 December 1945, reprinted in Trials of War Criminals
before the Nuremberg Military Tribunals under Control Council Law No 10 (1946–49) (1949–53)
23; Charter of the International Military Tribunal for the Far East, adopted 19 January 1946,
amended 26 April 1946, reprinted in CI Bevans (ed), Treaties and other international agreements of
the United States of America, 1776–1949 (1968–76) iv 20.
³⁷ Nuremberg Judgment (International Military Tribunal, 1946) 217.
have . . . been crimes punishable as offenses against the law of war; yet the Hague
Convention nowhere designates such practices as criminal, nor is any sentence prescribed,
nor any mention made of a court to try and punish offenders. For many years past, how-
ever, military tribunals have tried and punished individuals guilty of violating the rules
of land warfare laid down by this Convention. In the opinion of the Tribunal, those who
wage aggressive war are doing that which is equally illegal, and of much greater moment
than a breach of one of the rules of the Hague Convention.³⁸
The defendants had further argued that ‘international law is concerned with the
actions of sovereign States, and provides no punishment for individuals; and fur-
ther that where the act in question is an act of State, those who carry it out are not
personally responsible, but are protected by the doctrine of the sovereignty of the
State’.³⁹ The Tribunal equally disposed of that argument:
That international law imposes duties and liabilities upon individuals as well as upon
States has long been recognized. In the recent case of Ex Parte Quirin . . . persons were
charged during the war with landing in the United States for purposes of spying and
sabotage. The late Chief Justice Stone, speaking for the Court, said: ‘From the very begin-
ning of its history this Court has applied the law of war as including that part of the law
of nations which prescribed for the conduct of war, the status, rights, and duties of enemy
individuals.’ . . . Many other authorities could be cited, but enough has been said to show
that individuals can be punished for violations of international law.
...
The principle of international law, which under certain circumstances, protects the
representative of a state, cannot be applied to acts which are condemned as criminal by
international law. The authors of these acts cannot shelter themselves behind their official
position in order to be freed from punishment in appropriate proceedings.⁴⁰
The Tribunal referred to article 7 of the Nuremberg Charter that provides that
[t]he official position of defendants, whether as Heads of State or responsible officials in
Government Departments, shall not be considered as freeing them from responsibility or
mitigating punishment.
And stated that
[h]e who violates the laws of war cannot obtain immunity while acting in pursuance of
the authority of the State if the State in authorizing action moves outside its competence
under international law.⁴¹
The Tribunal hence proceeded as if the principles applied by it were firmly estab-
lished principles of international law. With reference to the many national pros-
ecutions of foreign soldiers for war crimes committed for example during the First
World War or the Franco–German war of 1870–71, many scholars agreed.⁴²
³⁸ ibid 218–19. ³⁹ ibid 220.

⁴⁰ ibid 220–1. ⁴¹ ibid 221.
⁴² Cf L Oppenheim (1952) ii 192, § 52h; Q Wright, ‘The Law of the Nuremberg Trial’ (1947)
41 AJIL 38; HS Levie, The Code of International Armed Conflict (1986) ii 858.
The trials were however not uncontroversial. Several commentators argued that
the prosecution of individuals for crimes against international law did comprom-
ise the nullum crimen sine lege principle since the distinction between violations of
international law and individual criminal responsibility for these violations was
disregarded.⁴³ This author is persuaded by the latter position. The Nuremberg
Tribunal and its supporters relied on state practice regarding the prosecution of
unlawful combatants either for war crimes committed on private impulse or for
the crime of espionage and sabotage. The fact that these categories of unlawful
combatants could be prosecuted under the domestic law of an enemy state for
war crimes is however no precedent for the prosecution of ‘system criminality’.⁴⁴
While individual responsibility under international law for war crimes commit-
ted on the authority of a state was indeed called for—crimes against international
law are committed by men rather than abstract entities—a rule of customary
international law to that effect had yet to be established.
Whatever the merit of the criticism at the time, more than half a century later
the key principles underlying the Nuremberg Charter are firmly established in
international law. The principle of individual responsibility for crimes against
international law and the principle of irrelevance of official capacity for the estab-
lishment of such responsibility was first confirmed in 1946 in a unanimously
adopted resolution of the General Assembly ‘affirming the principles of inter-
national law recognized by the Charter of the Nuremberg Tribunal and Judgment
of the Tribunal’.⁴⁵ Since then they have been restated in the International Law
Commission’s 1950 Principles of International Law Recognized in the Charter
of the Nuremberg Tribunal and in the Judgment of the Tribunal,⁴⁶ and its 1954
Draft Code of Offences Against the Peace and Security of Mankind and 1996
Draft Code of Crimes against the Peace and Security of Mankind,⁴⁷ in the stat-
utes of the International Criminal Tribunal for the Former Yugoslavia (ICTY)
and the International Criminal Tribunal for Rwanda (ICTR),⁴⁸ in the 1998
⁴³ Cf eg H Kelsen (1947); GA Finch, ‘The Nuremberg Trial and International Law’ (1947)
41 AJIL 20; FB Schick, ‘The Nuremberg Trial and the International Law of the Future’ (1947)
41 AJIL 770.
⁴⁴ Cf for the term n 18 above.
⁴⁵ Affirmation of the Principles of International Law recognised by the Charter of the
Nüremberg Tribunal, UN GA Resolution 95(I), 11 December 1946, UN Doc A/64/Add 1 (1946),
reprinted in D Schindler and J Toman (eds) (2004) 1263.
⁴⁶ Reprinted in D Schindler and J Toman (eds) (2004) 1265, Principle 3.
⁴⁷ Art 1 of the 1954 draft, YBILC 1954 ii (part two); Art 7 of the 1996 draft, YBILC 1996 ii
(part 2).
⁴⁸ Art 7 of the Statute of the International Criminal Tribunal for the Former Yugoslavia, (1993)
32 ILM 1192. The Tribunal has on several occasions confirmed that the principle of irrelevance
of official capacity is firmly established in customary international law Cf Prosecutor v Furundžija
(ICTY, 1998) § 140; Prosecutor v Milosević IT–02–54, Trial Chamber, Decision on Preliminary
Motions (2001), § 28–33; Art 6 of the Statute of the International Criminal Tribunal for Rwanda,
(1994) 33 ILM 1598.
Rome Statute of the International Criminal Court (ICC)⁴⁹ and in the Statute of
the Special Court for Sierra Leone (SCSL).⁵⁰ The principles now apply in regard
of a broad range of crimes—including those committed in internal conflicts. The
inclusion of a minimum of humane treatment in armed conflict not of an inter-
national character in common article 3 of the Geneva Conventions was a crucial
step towards a change in nature of international humanitarian law.⁵¹ Change
persisted and culminated in a string of decisions by the ICTY further closing the
gap between the regimes applicable to international and internal conflicts. The
Appeals Chamber in the Tadić case commented in this respect that
[a] State-sovereignty-oriented approach has been gradually supplanted by a
human-being-oriented approach. Gradually the maxim of Roman law hominum causa
omne jus constitutum (all law is created for the benefit of human beings) has gained
a firm foothold in the international community as well. It follows that in the area of
armed conflict the distinction between interstate wars and civil wars is losing its value so
far as human beings are concerned.⁵²
In the wake of the Nuremberg Trials it became accepted that national courts
may exercise criminal jurisdiction over crimes against international law under
the principle of universal jurisdiction—hence regardless of the locus delicti and
the nationality of the victim and the suspect.⁵³ This development warrants brief
discussion since it is at the basis of the increase of cases in which the question of
immunity of foreign state officials may arise.
In the 1950 Wagener case the Italian Supreme Military Tribunal considered
that the laws and customs of war ‘due to their highly ethical and moral content,
⁴⁹ Arts 25 and 27.1 of the Rome Statute of the International Criminal Court, (1998) 37
ILM 999.
⁵⁰ Art 6 of the Statute of the Special Court for Sierra Leone, available at <http://www.sc-sl.org>.
⁵¹ Cf also 1968 UN General Assembly Resolution 2444 (XXIII), 1977 Protocol II to the
Geneva Conventions.
⁵² Prosecutor v Tadić, IT–94–1, Appeals Chamber, Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction (ICTY, 1995), § 96–7, quotation at § 97.
⁵³ The basis of jurisdiction of the Nuremberg Tribunal itself was not entirely clear. The Tribunal
considered that the nations that established the Tribunal were doing ‘together what any one of
them might have done singly’, Nuremberg Judgment (International Military Tribunal, 1946), 216.
Some argued that this meant the Tribunal based its jurisdiction on the universality principle. The
UN Secretary-General stated in a 1949 Report on the Tribunal that the prosecutions may imply
that all states have jurisdiction over crimes against international law but that no definite conclu-
sions could be drawn as yet: The Charter and the Judgment of the Nuremberg Tribunal: History
and Analysis, UN Doc A/CN.4/5 (1949), cf AR Carnegie, ‘Jurisdiction over Violations of the Laws
and Customs of War’ (1963) 39 BYIL 402, 415–24. But since the relevant crimes were also com-
mitted on the territory of the Allied Powers and directed against their nationals and property jur-
isdiction could also be based on the territoriality and passive personality principle. Moreover, it is
often argued that the Allied Powers could exercise territorial jurisdiction over the crimes since they
were acting as the sovereign of Germany, cf G Schwarzenberger (1950) 290–1; H Kelsen (1947)
153, 167; L Oppenheim (1952) ii 580–1. Cf for this argument also FA Mann, ‘The Present Legal
Status of Germany’ (1947) 1 ILQ 314 and the reasoning of the Tribunal itself Nuremberg Judgment
(International Military Tribunal, 1946) 216. Cf KC Randall (1988) 785, 807–10 for the references
to the universality principle in decisions under Control Council Law no 10.
have a universal character, not a territorial one . . . The solidarity among nations,
aimed at alleviating in the best possible way the horrors of war, gave rise to the
need to dictate rules which do not recognise borders, punishing criminals wher-
ever they may be.’⁵⁴ In the French Barbie case the court stated that crimes against
humanity ‘by reason of their nature . . . do not simply fall within the scope of
French municipal law but are subject to an international criminal order to which
the notion of frontiers and extradition rules arising therefrom are completely
foreign’.⁵⁵ And the Supreme Court of Israel explained in the Eichmann case that
‘these crimes constitute acts which damage vital international interests; they
impair the foundations and security of the international community; they violate
the moral values and humanitarian principles that lie hidden in the criminal law
systems adopted by civilised nations . . . they involve the perpetration of an inter-
national crime which all the nations of the world are interested in preventing.’⁵⁶
The recent rise in interest in the universality principle as a basis for the exercise
of criminal jurisdiction has provoked a debate on the limits of the principle.⁵⁷
With reference to the Lotus case it is sometimes argued that states do not at all
need a permissive rule of international law for the exercise of adjudicative juris-
diction in respect of cases relating to acts which have taken place abroad. The
Permanent Court of International Justice (PCIJ) had stated in this respect that
‘[f]ar from laying down a general prohibition to the effect that states may not
extend the application of their laws and the jurisdiction of their courts to per-
sons, property and acts outside their territory, it leaves them in this respect a wide
measure of discretion which is only limited in certain cases by prohibitive rules;
as regards other cases, every State remains free to adopt the principles which it
regards as best and the most suitable.’⁵⁸ However, the reasoning of the Court
already encountered criticism at the time and does certainly not reflect inter-
national law today.⁵⁹ It is generally accepted that international law protects states
from exorbitant claims to jurisdiction of other states by listing the legal bases of
⁵⁴ General Wagener Case Rivista Penale 1950 II 753 (Italy, Supreme Military Tribunal, 1950)
757 (unofficial translation).
⁵⁵ Fédération Nationale des Déportés et Internés Résistants et Patriotes and Others v Barbie
(France, 1983 and 1984) 130. (The Court of Cassation approvingly cited the words of the Court
of Appeal).
⁵⁶ Attorney-General of Israel v Eichmann (Israel, 1962) 291–3. Cf also Demjanjuk v Petrovsky
(US, 1985).
⁵⁷ Notably, even the core of the universality principle is not uncontroversial. Several courts
and scholars defend the view that universal jurisdiction only exists when states have agreed to the
exercise of such jurisdiction. See eg HA Kissinger, ‘The Pitfalls of Universal Jurisdiction’ (July/
August 2001) Foreign Affairs 86; Dissent of Lord Browne-Wilkinson to the Princeton Principles
on Universal Jurisdiction (2001), available at <http://www.princeton.edu/~lapa/unive_jur.pdf>
(fn 20); Individual opinions of Lords Hope and Philips in R v Bow Street Metropolitan Stipendiary
Magistrate and others, ex p Pinochet Ugarte (UK, 1999), (further referred to as Pinochet no 3).
⁵⁸ Case of the SS Lotus (France v Turkey) (1927), PCIJ Reports, Series A, no 9, 19.
⁵⁹ Cf JL Brierly, ‘Règles générales du droit de la paix’ (1936–IV) 58 RdC 1, 146–8; H Lauterpacht
(1970) i 488–9; FA Mann, ‘The Doctrine of Jurisdiction in International Law’ (1964–I) 111 RdC 1,
35–6.
jurisdiction. As Mann put it, a state must establish ‘the intimacy and legitimacy
of its interest in, the facts in issue’.⁶⁰
It is in this respect good to recall that before Nuremberg, the exercise of jur-
isdiction over non-nationals committing crimes against non-nationals outside a
state’s territory was only accepted for the crime of piracy. This was not inher-
ent in the qualification of piracy as a crime against international law but can be
explained by the sui generis jurisdictional aspects of the crime. As Judge Moore
aptly noted in the SS Lotus Case:
the scene of the pirate’s operations is the high seas, which it is not the right or duty of any
nation to police, he is denied the protection of the flag which he may carry, and is treated
as an outlaw, as the enemy of all mankind—hostis humani generis—whom any nation
may in the interest of all capture and punish.⁶¹
In other words, since pirates do not operate within the territorial jurisdiction of
any state they are likely to escape punishment if not all states are recognized to
have a legitimate interest in their arrest.
It is sometimes argued that today the nature of crimes against international
law establishes sufficient interest in all states and that consequently universal
jurisdiction can be exercised in absentia—the absolute universality principle, or
the unilateral universality principle as Reydams has termed it.⁶² There is how-
ever increasing support for the viewpoint that courts can only prosecute crimes
against international law on this basis if the alleged perpetrator is present on the
soil of the forum.⁶³ In Prosecutor v Furundžija the ICTY explicitly stated both the
⁶⁰ FA Mann, Studies in International Law (1973) 80; M Akehurst (1972–73) 167.

⁶¹ Case of the SS Lotus (France v Turkey) (1927), PCIJ Reports, dissenting opinion Judge Moore,
70. Cf also V Lowe, ‘Jurisdiction’ in MD Evans (ed), International Law (2003) 329, 343.
⁶² See A Cassese (2002) 859–65 (a year later Cassese argued however against absolute universal
jurisdiction, cf A Cassese, ‘The Belgian Court of Cassation v. the International Court of Justice:
the Sharon and others Case’ (2003) 1 JICJ 437, 452); Public Prosecutor v Sokolovic 2001 NJW 2728
(Germany, Bundesgerichtshof, 2001), (cf also Public Prosecutor v Jorgic 1999 NStZ 236 (Germany,
Bundesgerichtshof, 1998)); Ordonnance du 6 novembre 1998 (1999) 118 JT 308 (Belgium, Juge
d’instruction VanderMeersch) 308, discussed in L Reydams, ‘Case Note’ (1999) 93 AJIL 700;
Re Sharon and Yaron 127 ILR 110 (Belgium, Court of Cassation (Second Chamber), 2003). Cf for
the terminology, L Reydams, Universal Jurisdiction, International and Municipal Legal Perspectives
(2003) 38–42.
⁶³ Reydams has argued in this respect that the ‘unilateral universality principle has an intrin-
sically arbitrary character. The totally random determination of the forum . . . runs counter to the
fundamental principle of the predictability of criminal law. [It] also does not adequately protect the
interests of States which are more directly concerned [It] erodes the very concept of jurisdiction.’
L Reydams, (2003) 223–5, quotation at 224. The condition of presence is also often mentioned
without entering the discussion: ES Kobrick, ‘The Ex Post Facto Prohibition and the Exercise of
Universal Jurisdiction over International Crimes’ (1987) 87 CLR 1515, 1519; CC Joyner, ‘Arresting
Impunity: The Case for Universal Jurisdiction in Bringing War Criminals to Accountability’
(1996) 59 Law & Contemporary Problems 153, 165 and 170; M Cosnard, ‘Quelques observations
sur les décisions de la Chambre des Lords du 25 Novembre 1998 et du 24 Mars 1999 dans l’affaire
Pinochet’ (1999) 103 RGDIP 309, 323. Even Randall seemed to qualify his assertions in this way,
cf KC Randall (1988) 840. Cf for support in state practice art 689 of the French Code of Criminal
Procedure and two French laws providing jurisdiction over crimes against international law
seriousness of the crime and the presence on the territory to underlie the principle
of universal jurisdiction:
[O]ne of the consequences of the jus cogens character bestowed by the international com-
munity upon the prohibition of torture is that every State is entitled to investigate, pros-
ecute and punish or extradite individuals accused of torture, who are present in a territory
under its jurisdiction. Indeed, it would be inconsistent on the one hand to prohibit torture
to such an extent as to restrict the normally unfettered treaty-making power of sovereign
States, and on the other hand bar States from prosecuting and punishing those torturers
who have engaged in this odious practice abroad. This legal basis for States’ universal jur-
isdiction over torture bears out and strengthens the legal foundation for such jurisdiction
found by other courts in the inherently universal character of the crime.⁶⁴
Several ICJ judges discussed the issue in some detail in the Arrest Warrant case.⁶⁵
Judge Guillaume represented the sceptical school. He emphatically stated that
‘at no time has it been envisaged that jurisdiction should be conferred upon the
courts of every State in the world to prosecute such crimes, whoever their authors
and victims and irrespective of the place where the offender is to be found. To do
this would, moreover, risk creating total judicial chaos. It would also encourage
the arbitrary for the benefit of the powerful, purportedly acting as agent for an
ill-defined “international community”. Contrary to what is advocated by cer-
tain publicists, such a development would represent not an advance in the law
but a step backward.’⁶⁶ Judges Higgins, Kooijmans and Buergenthal and dissent-
ing Judge Van den Wyngaert represented the more liberal view. The first three
cautioned that reliance on state practice to determine the limits of international
law may in this case be deceiving since states are not required to use the juris-
diction allowed by international law.⁶⁷ After the perusal of doctrine and state
practice they concluded that international law does not impose a precondition of
committed in the former Yugoslavia and Rwanda discussed in B Stern, ‘Case Note’ (1999) 93 AJIL
700; Dutch war crimes legislation (Wet Internationale Misdrijven); Bouterse NJ 2002 77 (The
Netherlands, Hoge Raad, 2001) § 8; Guatemala Genocide Case (2003) 42 ILM 686 (Spain, S Ct,
2003) 697ff, § 8 and 9; Peruvian Genocide Case (2003) 42 ILM 1200 (Spain, S Ct, 2003); Regina v
Finta (Canada, 1989).
⁶⁴ Prosecutor v Furundžija, (ICTY, 1998) § 156.
⁶⁵ Arrest Warrant of 11 April 2000 (ICJ, 2002) (further referred to as Arrest Warrant Case).
The Congo complained that a Belgian arrest warrant for its minister for foreign affairs for
crimes against international law violated the personal immunity of the minister. It moreover
complained that the issuance of an arrest warrant for an individual not present on your ter-
ritory could not be based on the universality principle. The Court avoided this latter question
deciding the immunity question only. The judges that did engage the question argued that
the Court denied therewith the logical order of the questions and argued that question of jur-
isdiction should have been answered first. The question is now again before the Court,
cf Certain Criminal Proceedings in France (Republic of the Congo v France), Application of
9 December 2002, available at <http://www.icj-cij.org>.
⁶⁶ ibid Separate Opinion Judge Guillaume, 43, § 15. Cf also the Individual Opinion of Judge
Rezek, 94, § 10 and the Declaration of Judge Ranjeva, 55ff, § 5ff.
⁶⁷ ibid Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, 76, § 45.
presence on the forum’s territory to the exercise of universal jurisdiction.⁶⁸ For

the purposes of this study it is not necessary to take a position in the debate—the
controversy merely serves to sketch the background against which our research
question arises.
The exercise of (non-unilateral) universal jurisdiction is at times mandatory.
States have concluded several multilateral conventions in which they undertake
the obligation to prosecute persons found within their territory suspected of com-
mitting the crime defined in those conventions. The 1948 Genocide Convention
only obliged states that have territorial criminal jurisdiction over alleged per-
petrators to exercise that jurisdiction,⁶⁹ but subsequent conventions moreover
included the obligation to prosecute suspects of crimes against international law
present within a state’s territory on the basis of the principle of universal jurisdic-
tion. The 1949 Geneva Conventions provide the first example of the so-called
aut dedere aut judicare principle. Signatory states are obliged to either extradite
persons present within their territory suspected of committing ‘grave breaches’ of
the Conventions to another state or to prosecute them in their own courts.⁷⁰ The
example of the Geneva Conventions was later followed in multilateral conven-
tions related to specific crimes, the most prominent being the 1984 Convention
Against Torture and Other Cruel, Inhuman and Degrading Treatment or
Punishment (Torture Convention or TC).⁷¹ Article 5.2 of the Convention
provides that
⁶⁸ ibid at p 79, § 54. Cf also the Dissenting Opinion of Judge Van den Wyngaert, 169–73,
§ 52–8.
⁶⁹ Art 6 of the Convention on the Prevention and Suppression of the Crime of Genocide,
78 UNTS 277, provides that ‘persons charged with genocide . . . shall be tried by a competent tri-
bunal of the State in the territory of which the act was committed, or by such international penal
tribunal as may have jurisdiction with respect to those Contracting Parties which shall have
accepted its jurisdiction’.
⁷⁰ Art 49 of the First Geneva Convention for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field (1949) 75 UNTS 31 (1950); Art 50 of the Second Geneva
Convention for the Amelioration of the Wounded , Sick and Shipwrecked Members of the Armed
Forces at Sea (1949) 75 UNTS 85 (1950); Art 129 of the Third Geneva Convention Relative to
the Treatment of Prisoners of War (1949) 75 UNTS 135 (1950); Art 146 of the Fourth Geneva
Convention Relative to the Protection of Civilian Persons in Time of War (1949) 75 UNTS 287
(1950).
⁷¹ Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or
Punishment (1984) 1465 UNTS 85, reprinted in 23 ILM 1984 1027. Cf also the 1971 Montreal
Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, the 1973
Hague Convention for the Suppression of Unlawful Seizure of Aircraft, the 1973 Convention on
the Prevention and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents, the 1979 International Convention Against the Taking of Hostages, the 1980
Convention on Physical Protection of Nuclear Material, and the 1997 International Convention
for the Suppression of Terrorist Bombings. Although the relevant provisions of these conventions
are all worded in slightly different terms, the general mechanism of all conventions is that states
undertake to establish the criminal offence at issue in their national law and to exercise jurisdic-
tion, also on basis of universal jurisdiction.
Each State Party shall . . . take such measures as may be necessary to establish its juris-
diction over [ . . . ] in cases where the alleged offender is present in any territory under its
jurisdiction and it does not extradite him pursuant to article 8 to any State mentioned in
paragraph 1 of this article.
While article 7.1 lays down that:
The State Party in the territory under whose jurisdiction a person alleged to have com-
mitted [acts of torture] is found shall in the cases contemplated in Article 5, if it does
not extradite him, submit the case to its competent authorities for the purpose of
prosecution.
Although exceptionally national courts have claimed that the universality prin-
ciple under international law serves as a jurisdictional basis for the exercise of
jurisdiction, it is more generally agreed that implementing legislation is required,
even if the principle is included in a convention to which the state is a party, as
a French court held with regard to the universal jurisdiction laid down in the
Geneva Conventions ‘ces dispositions revêtent un caractère trop général pour
créer directement des règles de compétence en matière pénale’.⁷² The enactment
of national legislation conferring universal jurisdiction on national courts has
⁷² Javor et autres (France, Cour d’Appel de Paris, 1994), available at <http://www.trial-ch.org>.

See for an example of the first approach Ordonnance du 6 novembre 1998 (Belgium) 308 regard-
ing the Belgian request for extradition of Pinochet from the UK of 6 November 1998. Although
at the time the Belgian law only provided universal jurisdiction over war crimes committed in
international and non-international armed conflicts, it was held that the extradition request could
be based on universal jurisdiction over crimes against humanity under customary international
law. The court reasoned as follows: ‘we find that, before being codified in a treaty or statute, the
prohibition on crimes against humanity was part of customary international law and of inter-
national jus cogens, and this norm imposes itself imperatively and erga omnes on our domestic legal
order . . . Customary international law is equivalent to conventional international law and is dir-
ectly applicable in the Belgian legal order . . . Hence, it follows that even in the absence of a treaty,
national authorities have the right—and in some circumstances the obligation—to prosecute the
perpetrators independently of where they hide . . . For these reasons we find that, as a matter of cus-
tomary international law, or even more strongly, as a matter of jus cogens, universal jurisdiction over
crimes against humanity exists, authorizing national judicial authorities to prosecute and punish
the perpetrators in all circumstances.’ Trans by L Reydams, ‘In re Pinochet, Belgian Tribunal of
First Instance of Brussels’ (1999) 93 AJIL 700, 702–3. Cf Loi relative à la répression des infractions
graves aux Conventions internationales de Genève du 12 août 1949 et aux Protocols I and II du
8 juin 1977, additionnels à ces Conventions, 16 June 1993, Moniteur Belge, 5 August 1993. Later,
in 1999 this law has been amended to enable courts to exercise jurisdiction over perpetrators of
genocide and crimes against humanity, as defined in the Statute of the ICC: Loi relative à la répres-
sion des violations graves de droit international humanitaire, 10 February 1999, Moniteur Belge,
23 March 1999, reproduced in (1999) 38 ILM 918 (cf ns 295–6 below for further amendments).
The controversy was at the basis of the dissent of Lord Millett to the majority opinion in Pinochet
no 3 that torture only became an extra-territorial offence against the law of the United Kingdom
after the entry into force of the 1984 Criminal Justice Act implementing the 1984 Torture
Convention on 29 September 1988, and that hence the double criminality rule in extradition
law only allowed extradition to Spain for acts committed after that date. Cf R Van Alebeek, ‘The
Pinochet Case: International Human Rights Law on Trial’ (2000) 71 BYIL 29, 31 for examples and
arguments that support the majority view; ES Kobrick (1987) Cf differently R O’Keefe, ‘Customary
International Crimes in English Courts’ (2001) 72 BYIL 293. Cf in general R Higgins (1994) 59.
however not kept pace with the developments in international customary law,
or even with the obligations undertaken by states in international conventional
law.⁷³ The legislation enacted by some states after the Second World War was
limited to crimes committed in that war and did not provide courts with a gen-
eral competence to deal with crimes against international law committed abroad.
Only in a handful of cases did national courts actually exercise universal jurisdic-
tion, and these trials—like the Israeli Eichmann case, the French Barbie case, the
Canadian Finta case, and the Australian Polyukhovich case—all concerned Nazi
crimes.⁷⁴
This only changed when the interest in international criminal law was sparked
by the establishment of the ICTY and ICTR in the beginning of the 1990s.
Several states amended their legislation in order to be able to prosecute suspected
war criminals from the former Yugoslavia and Rwanda that took refuge within
their borders. Cases were for example instigated in Austria, Belgium, Denmark,
France, Germany, The Netherlands, Sweden, and Switzerland. In other states,
like Spain and Italy, the renewed interest in international criminal law led pros-
ecutors to investigate crimes committed during the military regimes in South
America. The establishment of the ICC in 1998 further boosted the introduction
of national legislation that makes prosecution of crimes against international law
possible.⁷⁵
It should at this point be noted that the concept of individual responsibility for
crimes against international law also seems to extend to the civil responsibility of
perpetrators. The individual civil responsibility under international law has for
example found expression in the Statute of the ICC. Article 75.2 provides that
‘[t]he Court may make an order directly against a convicted person specifying
appropriate reparations to, or in respect of, victims, including restitution, com-
pensation and rehabilitation.’⁷⁶
Moreover, the universality principle has also started to affect judicial and aca-
demic thinking on the scope of civil jurisdiction of national courts. The issue of
individual civil responsibility under international law came before the courts in
⁷³ R Van Elst, ‘Implementing Universal Jurisdiction Over Grave Breaches of the Geneva
Conventions’ (2000) 13 LJIL 815 gives an overview of the (lack of) implementation of the manda-
tory principle of universal jurisdiction in the four Geneva Conventions of 1949.
⁷⁴ Polyukhovich v The Commonwealth 172 CLR 501 (Australia, High Court of Australia, 1991).
Attorney-General of Israel v Adolf Eichmann (Israel, 1962); Fédération Nationale des Déportés et
Internés Résistants et Patriotes and Others v Barbie (France, 1983, 1984, 1985, 1988); R v Finta
(Canada, 1989).
⁷⁵ The Rome Statute, A/CONF 183/9 Cf for overview of state practice eg Redress, Universal
Jurisdiction in Europe, Criminal prosecutions in Europe since 1990 for war crimes, crimes against
humanity and genocide (1999); International Law Association, report by MT Kamminga, The
Exercise of Universal Jurisdiction in Respect of Gross Human Rights Off ences: Final Report (2000);
ICRC website. Cf however Habré 125 ILR 569 (Senegal, CA of Dakar, Court of Cassation, 2000,
2001) for a recent example of a state that has not implemented the necessary legislation to comply
with its obligations under the 1984 Torture Convention.
⁷⁶ See also rules 94 to 98 of the Rules of Procedure and Evidence, ICC-ASP/1/3.
the 1984 US Filártiga case.⁷⁷ The plaintiffs in this case relied on the Alien Tort
Claims Act which provides that
The district courts shall have original jurisdiction of any civil action by an alien for a tort
only, committed in violation of the law of nations or a treaty of the United States.⁷⁸
A claim was instigated by the parents of a Paraguayan boy tortured to death by
a Paraguayan police officer in Paraguay during the Stroessner regime against the
alleged perpetrator who had immigrated to the United States. The court stated that
‘for purposes of civil liability, the torturer has become—like the pirate and the slave
trader before him—hostis humanis generis, an enemy of all mankind’.⁷⁹ The decision
of the court to award the plaintiffs over $10 million dollar damages launched the
statute—passed into oblivion after its enactment in 1789—into the modern world
of transborder human rights litigation.⁸⁰ In 1992 the Torture Victim Protection
Act (TVPA) was enacted to remedy the gap left by the ATCA as regards the protec-
tion of US nationals.⁸¹ Section 2 of the Act provides, in relevant part, as follows:
(a) Liability—An individual who, under actual or apparent authority, or colour of law,
of any foreign nation—
(1) subjects an individual to torture shall, in a civil action, be liable for damages to
that individual; or
(2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for
damages to that individual’s legal representative, or to any person who may be a
claimant in an action for wrongful death.
Although the US Supreme Court has decided in 2004 that the ATCA only
applies to a narrow class of international norms that can be established with suf-
ficient specifity, claims against foreign state officials for human rights violations
committed abroad are still possible.⁸²
The US approach to civil jurisdiction over extra-territorial torts cannot be said
to receive widespread support.⁸³ Especially civil law countries know strict juris-
dictional limits for the establishment of civil jurisdiction, but also the House of
Lords rejects the broad assertion of civil jurisdiction by US courts.⁸⁴ While we
⁷⁷ Filártiga v Peña-Irala 630 F 2d 876 (US, Ct of Apps (2nd Cir), 1980).

⁷⁸ 28 USC § 1350 (1982), originally the Judiciary Act of 1789, ch 20 § 9 (b), 1 Stat 73, 77.
⁷⁹ Filártiga v Peña-Irala (US, 1980) 890.
⁸⁰ Filártiga v Peña-Irala 577 F Supp 860 (US, DC for the Eastern District of New York, 1984).
⁸¹ 28 USC § 1350.
⁸² Sosa v Alvarez-Machain (2004) 43 ILM 1390 (US, S Ct, 2004), cf ch 6 § 1 below. Cf on
the question of universal civil jurisdiction also Ferrini v Repubblica Federale di Germania (Italy,
2004) § 9 and § 12, and the discussion thereof in A Gattini, ‘War Crimes and State Immunity in
the Ferrini Decision’ (2005) 2 JICJ 224, 238ff.
⁸³ Cf Arrest Warrant Case, Joint Separate Opinion of Judges Higgins, Kooijmans and
Buergenthal, § 48.
⁸⁴ Cf Jones v Saudi Arabia (UK, 2006) § 20, §98. Cf for the common law doctrine of the transi-
tory tort R. Phillimore, Commentaries upon International Law (3rd edn, 1889) 4; JM Blum and RG
Steinhardt, ‘Federal Jurisdiction over International Human Rights Claims: The Alien Tort Claims
can say that these limits are under review in respect of extra-territorial activity
that amounts to a crime against international law,⁸⁵ the customary international
law status of the principle of universal civil jurisdiction is far from clear.⁸⁶
This is the roughly sketched context in which our research question arises.
How do the individual responsibility for crimes against international law and related
developments in international criminal law aff ect the functional and personal
immunity of foreign state officials?⁸⁷
The discussion can be conducted on two distinct levels. In the first place, it can
be questioned whether functional or personal immunity is available in respect of
allegations of crimes against international law. What is the state of the law on this
question? Three recent judicial decisions—the Pinochet case, the Arrest Warrant
case and the Taylor case—pivoted on this question.⁸⁸
In the Pinochet case the House of Lords was asked to decide whether a former
head of state enjoys functional immunity from foreign national jurisdiction
in respect of torture allegations. This chapter will argue that the extension of
the principle of individual responsibility for crimes against international law
to crimes committed under the cloak of state authority and the principle of
the irrelevance of official capacity directly target the rule of functional immunity
of state officials. The House of Lords reasoned in different terms. This chapter
links the reasoning of the House of Lords in the Pinochet case to the findings of
chapter 3 of this study. It sets out to prove that many arguments on the scope of
the rule of functional immunity in light of developments in international crim-
inal law—including those relied on in the Pinochet case—proceed from a flawed
conception of the functional immunity of state officials.
The decision of the International Court of Justice (ICJ) in the Arrest Warrant
Case and the decision of the SCSL in Prosecutor v Taylor both concerned personal
immunities of foreign state officials. The Nuremberg Charter did not deal with
procedural immunity from jurisdiction. The question did in fact only surface
after the establishment of the ICC. This study agrees with the conclusion of the
ICJ in the 2002 Arrest Warrant case that personal immunities apply also in respect
of allegations of crimes against international law. The decision in the 2004 Taylor
case distinguished jurisdiction exercised by national courts from that exercised
Act after Filártiga v Peña-Irala’, in RG Steinhardt and A D’Amato (eds), The Alien Tort Claims Act:
An Analytical Anthology (1999) 49, 58.
⁸⁵ Cf the Hague Conference on Private International Law, Preliminary Draft Convention on
Jurisdiction and Foreign Judgments in Civil and Commercial Matters adopted by the Special
Commission (1999), art 18.3 and the commentary on that art in the Report on the Preliminary
Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters
(P Nygh and F Pocar), Prel Doc No 11 (2000), available at <http://www.hcch.net>.
⁸⁶ Cf further DF Donovan and A Roberts, ‘The Emerging Recognition of Universal Civil
Jurisdiction’, (2006) 100 AJIL 142.
⁸⁷ It is noted that this study does not engage the question which acts qualify as crimes against
international law.
⁸⁸ Pinochet no 3; Arrest Warrant Case; Prosecutor v Charles Ghankay Taylor, (SCSL, 2004).
by international courts. It was concluded that since the SCSL is an international
criminal court it can establish jurisdiction over a sitting head of state. This chap-
ter disputes the premises of the decision in the Taylor case. The decision is based
on a questionable interpretation of the principle of irrelevance of official capacity,
on a questionable interpretation of an ambiguous obiter statement of the ICJ in
the Arrest Warrant case and on circular reasoning as regards the nature of the
jurisdiction of international courts.
In addition to the scope of the rules of functional and personal immunity, we
must inquire into the validity of these rules. One popular argument that will
be considered in particular is that crimes against international law trump the
immunity rules protecting state officials from foreign jurisdiction because of
their jus cogens nature.
The second level on which we can approach the research question is that of pol-
icy. Policy arguments do not assert that the developments in international human
rights law and international criminal law have changed the immunities of foreign
state officials; they assert that states should change these immunities in view of
these developments. The discussion of policy arguments in this study is limited to
the question whether the present scope of the immunity rule violates other rules
of international law. If immunity is still available to foreign state officials it can
be questioned whether the obligations states have under the immunity rules are
compatible with their obligations under international criminal law. Since in case
of competing legal obligations, judges may decide that one should prevail over
the other, policy arguments of this sort could result in the non-application of the
immunity rule.
2 State of the Law Arguments
2.1 Introduction
Are state officials shielded from foreign jurisdiction in respect of allegations of
crimes against international law? What is the state of international law on this
question? Two lines of inquiry must be pursued. The developments in inter-
national criminal law may have effect on the validity as well as the scope of the
immunity rules protecting foreign state officials. The question as to the scope
of the rules distinguishes between the functional and the personal immunity of
foreign state officials.
2.2 The Normative Hierarchy Theory: Voidance

of the Rules in View of International Criminal Law?
The first line of inquiry examines the argument that jus cogens norms of inter-
national criminal law take precedence over the hierarchically lower rules of
personal and functional immunity. The argument was first developed in support
of a human rights exception to the rule of state immunity—as we will see in
chapter 6 below.⁸⁹ It relies on the principle that jus cogens rules invalidate rules
of international law that are in conflict with them.⁹⁰ Kamto, for example, wrote
that since the prohibition of torture is a jus cogens norm ‘sauf à considérer que
le principe de l’immunité du ministre des affaires étrangères est également une
norme du jus cogens . . . l’interdiction de la torture . . . doit prévaloir sur la règle de
l’immunité’.⁹¹
The argument is problematic because it requires sliding from the jus cogens
nature of the prohibition of certain conduct to the nature of the rule allow-
ing or requiring enforcement of that prohibition in foreign national courts. As
Lord Hoffmann pointedly wrote in Jones v Saudi Arabia: ‘To produce a conflict
with . . . immunity, it is therefore necessary to show that the [substantive jus cogens
prohibition] has generated an ancillary procedural rule which, by way of excep-
tion to . . . immunity, entitles or perhaps requires states to assume . . . jurisdiction
over other states in cases in which torture is alleged.’⁹²
It is in this respect interesting to note that Kamto argued that ‘l’immunité d’un
ministre des Affaires étrangères en exercice tombe devant cette exigence partagée
par tous les États de combattre l’impunité en sanctionnant effectivement ses
crimes éventuels qui entreraient dans la catégorie des crimes “les plus graves” ’.⁹³
In contrast to the above quotation this latter statement does indeed refer to two
opposing obligations. However, for the argument to work it must be established
that the obligation to prosecute crimes against international law is of a jus cogens
nature. Accordingly, Judge Al-Khasawneh—dissenting from the majority opin-
ion in the Arrest Warrant case—formulated the argument as follows:
The eff ective combating of grave crimes has arguably assumed a jus cogens character reflect-
ing recognition by the international community of the vital community interests and
values it seeks to protect and enhance. Therefore when this hierarchically higher norm
comes into conflict with the rules on immunity, it should prevail.⁹⁴
⁸⁹ Ch 6 § 2.2 below.
⁹⁰ For the concept of jus cogens see ch 6 § 1 below.
⁹¹ M Kamto, ‘Une troublante “immunité totale” du ministre des affaires étrangères’ (2002)
35 RBDI 518, 528. Cf also A Bianchi, ‘Immunity versus Human Rights: The Pinochet Case’ (1999)
10 EJIL 237, 262; A Bianchi, ‘Individual Accountability for Crimes against Humanity: Reckoning
with the Past, Thinking of the Future’ (1999) 19 SAIS Review 97. The argument was advanced in
Wei Ye v Jiang Zemin (US, 2004), but the court felt obliged to give effect to the executive’s sugges-
tion of head of state immunity.
⁹² Jones v Saudi Arabia (UK, 2006).
⁹³ ibid.
⁹⁴ Arrest Warrant Case, Dissenting Opinion of Judge Al-Khasawneh, 98, § 7 (emphasis added).
It must, in the first place, be pointed out that mandatory universal jurisdiction is
for now still only of a conventional nature.⁹⁵ It can hence not be said that states
have an obligation under customary international law to prosecute all individuals
present within its territory that are suspected of any crime against international
law.⁹⁶ The obligation to prosecute can therefore not be of a jus cogens character.
But also as far as permissive universal jurisdiction is concerned, there is no sup-
port in international law that it classifies under the very select group of jus cogens
norms.
The only obligations that effectively precede obligations under immunity
rules are obligations imposed by the Security Council of the United Nations
(SC) under Chapter VII of the UN Charter. Article 103 of the Charter
provides that ‘[i]n the event of a conf lict between the obligations of the
Members of the United Nations under the present Charter and their obligations
under any other international agreement, their obligations under the present
Charter shall prevail.’⁹⁷ In respect of the ICTY and the ICTR Gaeta put it as
follows:
[T]he Statutes of the two ad hoc Tribunals provide for a derogation from the legal regu-
lation of personal immunities contained in customary international law. Admittedly,
these Statutes do not envisage any such derogation explicitly. However, they lay down
the obligation of all UN Member States to cooperate with the International Tribunals,
in particular by executing arrest warrants. This obligation, being based on a Security
Council binding resolution made under Chapter VII of the UN Charter, by virtue of
Article 103 of the UN Charter takes precedence over customary and treaty obligations
concerning personal immunities. Consequently, whenever a Member State to which
the International Tribunal issues an arrest warrant enjoining the detention of the Head
of State of another UN member who happens to be on its territory executes the arrest
warrant, by doing so it does not breach any customary or treaty obligations vis-à-vis the
foreign State concerned.⁹⁸
⁹⁵ Cf § 1 above. Cf § 3 below for the argument that these conventional obligations do not
extend to individuals clothed with personal immunity.
⁹⁶ There is an argument that exercise of territorial criminal jurisdiction is obligatory. Th is has
however more to do with obligations owed to individuals under human rights law than with obli-
gations owed to other states under international criminal law and is therefore discussed in ch 6
§ 3.4 below.
⁹⁷ While the Security Council can impose obligations on states when acting outside Chapter
VII, the obligation to violate the normal rules of personal immunity can in fact only be imposed
under Chapter VII, cf p 277 below.
⁹⁸ P Gaeta, ‘Official Capacity and Immunities’ in A Cassese, P Gaeta, JRWD Jones (eds), The
Rome Statute of the International Criminal Court: A Commentary (2002) 975, 989.
It is in this respect interesting to note that upon the establishment of the ICTY
the Swiss government saw itself forced to qualify the immunities granted to
participants to the Conference on the former Yugoslavia in Geneva.⁹⁹
2.3 The Scope of the Immunity of State Officials in View

of Individual Responsibility for Crimes against
International Law
2.3.1 Functional Immunity
2.3.1.1 Introduction
In chapter 3 of this study it was explained that there is considerable confusion as
regards the act of state concept that controls the rule of functional immunity.¹⁰⁰
It was argued that state officials enjoy functional immunity from the jurisdic-
tion of foreign courts in respect of acts committed as the arm or mouthpiece of
their home state. These acts are acts of the state that cannot be attributed to state
officials in their personal capacity and officials can accordingly not be called to
account for them in that capacity. Because the determination of the mandate of
state officials is within the exclusive competence of the home state, state officials
are assumed to have acted on behalf of the state whenever they have acted within
the context of the exercise of state authority under international law.
Two diff erent act of state concepts feature however in academic and judicial
thinking on the rule of functional immunity. State officials are seen to enjoy
functional immunity whenever the state would enjoy state immunity had it been
sued instead—act of state as public act—or alternatively state officials are seen to
enjoy functional immunity whenever they are sued in respect of an act that can
be attributed to the state—act of state as act attributable to the state. Accordingly,
the application of the rule is not concerned with the capacity in which the state
official can be sued. The absence of individual responsibility only follows the
application of the rule of functional immunity.
The conception of the rule of functional immunity crucially affects the param-
eters of coherent legal argument on the scope of this rule. In chapter 3 a tip of the
veil was lifted. This section elaborates on the influence of the three distinct con-
ceptions of the rule on the possibility to establish the criminal and civil responsi-
bility of (former) foreign state officials for crimes against international law. It will
be argued that the principle of individual responsibility for crimes against inter-
national law and the principle of irrelevance of official capacity directly affect
the assumption that an official has acted within the scope of his mandate. States
have, in other words, agreed on universal limits on the mandate of state officials.
Crimes against international law do not qualify as acts of the state rather than
⁹⁹ Cf L Caflisch, ‘La Pratique Suisse en matière de droit international public 1998 no 7.2’ (1999)
9 RSDIE 682, 690–1.
¹⁰⁰ This section builds on the findings of ch 3 and assumes that the reader is familiar with the
reasoning developed therein.
acts of the individual that performs the act, and hence are not official acts for the
purpose of the rule of functional immunity. In other words, the rationale of the
rule of functional immunity does not extend to these acts.
Under the two alternative conceptions, however, crimes against international law
normally qualify as acts of state for the purposes of the rule of functional immun-
ity. Developments in international criminal law can only effect an exception to the
immunity for official acts. Immunity is then lacking in spite of the rationale of the rule.
At first blush the question whether the absence of functional immunity for
crimes against international law exists in spite of or within the rationale of the rule
may seem of purely academic interest. This is true, in fact, as long as the attribut-
ability to the state criterion is not linked to the act of state immunity rationale.
However, the conception of functional immunity as being in fact state immunity
ratione materiae does limit the possible scope of an exception for crimes against
international law to criminal proceedings. If the exception were to extend to civil
proceedings this would amount to a general exception to the rule of state immun-
ity ratione materiae in respect of allegations of crimes against international law.
In other words, under this conception there is no rational distinction between the
state and the state official for the purpose of civil responsibility.
This section sets out with a discussion of the reasoning developed from the
perspective of the two alternative conceptions of the rule of functional immun-
ity. The Pinochet case will provide an insightful example of the consequences
of a particular definition of act of state for functional immunity purposes.¹⁰¹
Subsequently, the position advanced in this study will be defended.
2.3.1.2 An exception for crimes against international law

in spite of the rationale of the rule
If official acts are acts that can be attributed to the state, crimes against inter-
national law committed by state officials are, as a rule, official acts. Thus, after
subscribing to attributability as the critical test for official acts Barker stated that
‘[t]o deny the official character of such offences is to fly in the face of reality.’¹⁰²
Consequently, immunity for crimes against international law can only be
removed by a separate rule establishing an exception.¹⁰³
The same is true if official acts are acts in respect of which the state would
enjoy immunity had it been sued instead. The exercise of police authority or the
waging of war are necessarily ‘governmental’ activities for the purposes of the
rule of state immunity. In this sense, Jescheck noted ‘das Völkerstrafrecht hat
es in erster Linie mit staatlichen Hoheitsakten zu tun’.¹⁰⁴ Or, as Lord Millett
formulated it in Pinochet no 3, acts of torture are ‘official and governmental acts
¹⁰¹ Pinochet no 3.
¹⁰² JC Barker (1999) 943.
¹⁰³ Cf eg D Akande, ‘International Law Immunities and the International Criminal Court’
(2004) 98 AJIL 407, 414.
¹⁰⁴ H-H Jescheck, Die Verantwortlichkeit der Staatsorgane nach Völkerstrafrecht, eine Studie zu
den Nürnberger Prozessen (1952) 166.
by any standard’.¹⁰⁵ From this perspective Fox was right to point out that the
absence of immunity for international crimes ‘can only be brought about by the
introduction of an exception to state immunity from criminal proceedings in
respect of the individuals who commit the crimes.’¹⁰⁶
Many authors have argued that such an exception does in fact exist. As Gaeta
put it:
[A]ll state officials, including those at the highest level, are not entitled to functional
immunity in criminal proceedings—either of a national or international nature—if
charged with such offences as war crimes and crimes against humanity . . .
It is apparent that this customary rule constitutes an exception to the general rule grant-
ing functional immunity to State organs for acts they perform in their official capacity.
Clearly, the relationship between the two rules is one of lex specialis to lex generalis.¹⁰⁷
Most of the Law Lords decided Pinochet no 3 adhered to the act of state immun-
ity conception of the rule of functional immunity, or on an amalgam of the act of
state immunity and attributability conception. A closer look at the Pinochet saga
will teach us how this fact influenced the scope of the refusal of immunity to the
former head of state of Chile.
On 17 October 1998 Augusto Pinochet Ugarte was arrested in the United
Kingdom while ill in a London hospital. More than twenty-five years after
Pinochet commanded the violent military coup that evicted the government
of President Allende on 11 September 1973, the Spanish judge Garzon decided
that it was time to end the impunity of the man often held responsible for the
acts of systematic and widespread human rights violations that characterized
the military regime in Chile. A Spanish international warrant of arrest had been
issued on 16 October and was eventually followed by a second international war-
rant and an official extradition request by the Spanish government pursuant to
the 1957 European Convention on Extradition.¹⁰⁸ On the basis of these inter-
national warrants, UK Metropolitan Magistrates issued two provisional warrants
for Pinochet’s arrest under section 8(1) of the UK Extradition Act 1989. The first
warrant alleged the murder of Spanish citizens in Chile, while the second warrant
included allegations of torture, hostage taking, and murder. Applications were
made on behalf of Pinochet for judicial review and habeas corpus in respect of the
¹⁰⁵ Pinochet no 3, 172 (per Lord Millett).

¹⁰⁶ H Fox (1999) 696.
¹⁰⁷ P Gaeta (2002) 982–3. Cf eg A Verdross, Die völkerrechtswidrige Kriegshandlung und der
Strafanspruch der Staaten (1920); A Verdross and B Simma, Universelles Völkerrecht, Theorie und
Praxis (3rd edn, 1984) 773; G Dahm, ‘Völkerrechtliche Grenzen der Inländischen Gerichtsbarkeit
gegenüber ausländischen Staaten’ in Festschrift für Arthur Nikisch (1958) 153, 170; M Bothe (1971)
254; A Watts (1994) 13, 82 and 84; J Salmon (1994) 468; A Cassese (2002) 870ff; D Akande
(2004); S Wirth, ‘Immunities, Related Problems, and Article 98 of the Rome Statute’ (2002)
12 Criminal Law Forum 429; JC Barker (1999) 943–4.
¹⁰⁸ European Convention on Extradition (1957), CETS no 24. Incorporated in UK law by the
European Convention on Extradition Order 1990 as amended by the Extradition Act 1989. The
Spanish request was followed by an extradition request from the French, the Belgian, and the Swiss
government.
two warrants.¹⁰⁹ The central question to be answered by the courts was whether
Pinochet, head of state when he allegedly committed these crimes, could invoke
the rule of functional immunity as a shield against the allegations.¹¹⁰
Section 20.1 of the 1978 UK State Immunity Act (SIA) controlled the debate.
The section provides that:
subject to the provisions of this section and to any necessary modifications, the Diplomatic
Privileges Act 1964 shall apply to
(a) a sovereign or other Head of State;
(b) members of his family forming part of his household;
and
(c) his private servants,
as it applies to the head of a diplomatic mission, to members of his family forming part of
his household and to his private servants.
The Diplomatic Privileges Act 1964 (DPA) gives effect to the 1961 Vienna
Convention on Diplomatic Relations in English law (VCDR). The relevant provision
in the Pinochet trial was article 39.2 of the Convention, which provides as follows:
When the functions of a person enjoying privileges and immunities have come to an end,
such privileges and immunities shall normally cease at the moment when he leaves the
country, or on expiry of a reasonable period in which to do so, but shall subsist until that
time, even in case of armed conflict. However, with respect to acts performed by such a
person in the exercise of his functions as a member of the mission, immunity shall con-
tinue to subsist.
Article 39.2 VCDR reflects the rule of functional immunity under international
law. UK legislation hence allowed the courts to decide the immunity question in
accordance with international law.
Pinochet had his fate decided in a veritable courtroom-drama consisting of
four acts. After a judgment of the Divisional Court,¹¹¹ appeal was made to the
¹⁰⁹ See for a comprehensive overview of the facts of the case Pinochet no 3, 101–4 (per Lord
Browne-Wilkinson).
¹¹⁰ In Pinochet no 3 a second question became central to the proceedings. Because the major-
ity did not regard torture criminal under UK law until s 134.1 of the Criminal Justice Act 1988
incorporating the Torture Convention in UK law came into force on 29 September 1988, the num-
ber of extradition crimes was reduced significantly. It is further noted that it could have been argued
on behalf of Pinochet that an extradition request cannot be merely based on the principle of uni-
versal jurisdiction since the exercise of jurisdiction on that basis requires the presence of the suspect
on the territory of the forum state. Cf on this question also J Dugard, Opinion in the Boutserse case
(on fi le with the author) § 5.6.5. However, the Spanish court did observe that Spain had a legitim-
ate interest because at least fifty Spanish subjects disappeared or were killed in Chile during the
Pinochet regime, implying that jurisdiction could in addition be based on the passive personal-
ity principle: Case 1/98 (Spain, Audiencia Nacional, criminal division, plenary session, 1998), cf
M Del Carmen Márquez and J Alcaide Fernández, ‘Case Note’ (1999) 93 AJIL 690, 691.
¹¹¹ R v Bow Street Metropolitan Stipendiary Magistrate and others, ex p Pinochet Ugarte [1998] All
ER (D) 509 (UK, The Divisional Court of the Queen’s Bench Division, 1998). Lord Bingham of
Cornhill CJ, Collins and Richards JJ unanimously quashed both warrants.
House of Lords. The learned Lords had to decide the case twice. The first deci-
sion of 25 November 1998¹¹² was set aside by a House of Lords Committee on
17 December 1998 because the Appellate Committee had been improperly con-
stituted.¹¹³ A final judgment was given on 24 March 1999.¹¹⁴ All seven members
of the House of Lords delivered individual opinions. A 6–1 majority decided that
there could be no immunity for a former head of state for the torture allegations
under consideration. It is however impossible to derive a common ratio decidendi
from the six majority opinions. The opinions are divided on several critical issues.
In addition, some of the opinions suffer from internal inconsistencies.
The decision has been lauded as providing ‘le critère qui permet de distinguer
parmi les actes d’un gouvernant’.¹¹⁵ Another commentator summarized the deci-
sion as follows: ‘l’ancien Chef d’Etat, en principe au bénéfice de l’immunité de
juridiction pénale pour ses actes de fonction, n’est cependant pas à l’abri des pour-
suites lorsque ces actes revêtent le caractère de crimes de droit international’.¹¹⁶ In
the opinion of this author, the acclaim is in want of some qualification.
Only three Lords agreed unequivocally that there is no immunity from crim-
inal jurisdiction for crimes against international law. But two of them—Lord
Hope and Lord Philips—relied on the Torture Convention to establish the uni-
versal jurisdiction that makes this rule applicable to cases before national courts
as well. Only Lord Hutton can be said to have recognized the absence of func-
tional immunity from the jurisdiction of national courts in respect of all crimes
against international law. Lord Saville of Newdigate and Lord Browne-Wilkinson
based their refusal to grant immunity exclusively on the specific terms of the
Torture Convention. Finally, the opinion of Lord Millett did not purport to rely
on the Torture Convention but his argument seems limited to crimes against
international law that can only be committed by a state official under the colour
¹¹² R v Bow Street Metropolitan Stipendiary Magistrate and others, ex p Pinochet Ugarte (Amnesty
International and others intervening) [1998] 4 All ER 897 (UK, HL, 1998); [1998] 3 WLR 1456
HL (Pinochet no 1). The majority allowed the appeal (Lords Nicholls of Birkenhead, Steyn, and
Hoff mann; Lords Slynn of Hadley and Lloyd of Berwick dissenting).
¹¹³ Lord Hoff mann had failed to disclose his close links with Amnesty International; an inter-
vener in the case. R v Bow Street Metropolitan Stipendiary Magistrate and others, ex p Pinochet Ugarte
[1999] 1 All ER 577 (UK, HL, 1999); [1999] 2 WLR 272, (Pinochet no 2). See on this TH Jones,
‘Judicial Bias and Disqualification in the Pinochet Case’ (1999) Public Law 391.
¹¹⁴ Pinochet no 3. The majority allowed the appeal but did significantly reduce the number of
extradition crimes (Lords Browne-Wilkinson, Hope of Craighead, Hutton, Saville of Newdigate,
Millett, and Philips of Worth Matravers; Lord Goff of Chieveley dissenting). On 2 March 2000
the UK Home Secretary Jack Straw decided that General Pinochet’s ill-health made him unfit to
stand trial before the English courts and that he was allowed to return to Chile. On the basis of a
medical report the Home Secretary decided that Pinochet would not be extradited to Spain. See
on this Straw’s Letter to the Spanish Ambassador. Straw stated that: ‘The principle that an accused
person should be mentally capable of following the proceedings, instructing his lawyers and giving
coherent evidence is fundamental to the idea of a fair trial’, sub 20.
¹¹⁵ M Cosnard (1999) 319.
¹¹⁶ C Dominicé, ‘Quelques observations sur l’immunité de juridiction pénale de l’ancien chef
d’Etat’ (1999) 103 RGDIP 297, 307. Cf also S Wirth, ‘Immunity for Core Crimes? The ICJ’s
Judgment in the Congo v Belgium Case’ (2002) 13 EJIL 877, 892.
of law. In order to ascertain the precedent value of the Pinochet case it is therefore
necessary to closely scrutinize each individual opinion. The scope of the refusal
of immunity can only be grasped when the personal parameters of functional
immunity and international criminal law of each Lord are revealed.¹¹⁷
Lord Goff of Chieveley delivered the only dissent on the immunity issue. As to
the nature of the protection available to Pinochet, Lord Goff agreed with Watts
that the ‘critical question’ in the application of the rule of functional immunity
is ‘whether the conduct was engaged in under colour of or in ostensible exercise
of the Head of State’s public authority’.¹¹⁸ He added that ‘[i]n this context, the
contrast is drawn between governmental acts, which are functions of the head of
state, and private acts, which are not.’¹¹⁹ He asserted that any exclusion of ‘state
immunity’ in respect of crimes of torture should be derived from the Torture
Convention, since the principle of irrelevance of official capacity is only ‘con-
cerned with international responsibility before international tribunals, and not
with the exclusion of state immunity in criminal proceedings before national
courts’.¹²⁰
Article 1.1 of the Torture Convention defines torture as
any act by which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or a third person informa-
tion or a confession, punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a third person, or for
any reason based on discrimination of any kind, when such pain or suffering is inflicted
by or at the instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity. It does not include pain or suffering arising from,
inherent in or incidental to lawful sanctions.
According to Lord Goff the argument on the influence of the Torture Convention
runs as follows:
since torture contrary to the convention can only be committed by a public official or
other person acting in an official capacity, and since it is in respect of the acts of these very
persons that states can assert state immunity ratione materiae, it would be inconsistent
with the obligations of state parties under the convention for them to be able to invoke
state immunity ratione materiae in cases of torture contrary to the convention.¹²¹
He did not accept that argument. In the first place, he held that a waiver of
state immunity by treaty must always be express.¹²² Equally adamant was his
¹¹⁷ Fox rightly noted that ‘the evaluation of the full implications of the case will take years’:
H Fox (1999) 687. My assessment and appreciation of the reasoning of the Lords has changed on
several points since the publication of R van Alebeek (2000).
¹¹⁸ Pinochet no 3 119, referring to A Watts (1994-III) 56.
¹¹⁹ ibid 199.
¹²⁰ ibid 120–1.
¹²¹ ibid 122.
¹²² ibid 123.
rejection of the argument that the Convention removes immunity by implica-

tion. Because treaties are the result of extensive negotiations, compromise, and
even horse-trading, the text of the treaty itself, and the travaux préparatoires
are the only safe guide to its terms. In other words, Lord Goff rejected the idea
that the terms of a treaty must necessarily be ‘logical’ or ‘effective’. Moreover, he
argued that ‘state immunity’ is not inconsistent with the obligations of state par-
ties to the Convention. He asserted that
in the majority of cases which may arise under the convention, no question of state
immunity will arise at all, because the public official concerned is likely to be present in
his own country. Even when such a question does arise, there is no reason to assume that
state immunity will be asserted by the state of which the alleged torturer is a public offi-
cial; on the contrary it is only in unusual cases . . . that this is likely to be done.¹²³
Lord Goff hence concluded that the argument that the ‘state immunity’ is
excluded by an implied term in the Torture Convention or waived by the states
ratifying the Torture Convention is ‘contrary to principle and authority, and
indeed to common sense’.¹²⁴
The opinion of Lord Saville of Newdigate is unambiguous in its exclusive reli-
ance on the terms of the Torture Convention. A former head of state, Lord Saville
noted, is immune for acts done ‘in his official capacity as head of state’.¹²⁵ His
subsequent reasoning reveals that he proceeded from the premise that for the pur-
poses of the rule of functional immunity act of state means either act attributable
to the state or governmental act. According to the Lord there was no exception to
immunity for the international crime of torture before the coming into existence
of the Torture Convention.¹²⁶ He concluded however that since the ratification of
the Torture Convention by the UK on 8 December 1988 Pinochet could no longer
rely on the defence of immunity in respect of allegation of torture since from that
date onwards Spain, Chile and the UK were all parties to the Convention.
According to Lord Saville torture within the definition of article 1.1 of the
Torture Convention automatically qualifies under the rule of functional
immunity:
So far as the states that are parties to the convention are concerned, I cannot see how, as
far as torture is concerned, this immunity can exist consistently with the terms of that
convention. Each state party has agreed that the other state parties can exercise jurisdic-
tion over alleged official torturers found within their territories . . . and thus, to my mind,
can hardly simultaneously claim an immunity from extradition or prosecution that is
necessarily based on the official nature of the alleged torture.¹²⁷
¹²³ ibid 127. ¹²⁴ ibid 123.

¹²⁵ ibid 168. ¹²⁶ ibid 168.
¹²⁷ ibid 169. Inherent in this argument is the conception of act of state as act attributable to the
state, or governmental act.
He pointed out that he ‘did not reach this conclusion by implying terms into the
Torture Convention, but simply by applying its express terms’.¹²⁸ Although acts
of torture would normally qualify for protection under section 20 SIA he consid-
ered the ‘unequivocal terms of the Torture Convention’ to qualify as an express
waiver.¹²⁹
Lord Browne-Wilkinson considered the immunity for official acts performed
in the exercise of the functions of head of state to be the equivalent of state immun-
ity ratione materiae. His reasons for refusal to grant Pinochet ‘state immunity’
appear somewhat ambiguous. The opinion reasons in two minds. First we read
that ‘long before the Torture Convention state torture was an international crime
in the highest sense’.¹³⁰ Lord Browne-Wilkinson noted in this regard that ‘[t]he
jus cogens nature of torture justifies states in taking universal jurisdiction over
torture wherever committed’.¹³¹ Later on, however, he held that torture could
not be described as ‘a fully constituted international crime’ until the Convention
provided states with universal jurisdiction to try alleged torturers.¹³² The same
ambiguity is also reflected in the reasons for denying immunity. At the outset
Lord Browne-Wilkinson wondered—in a sweeping rhetorical question—‘[h]ow
[it can] be for international law purposes an official function to do something
which international law itself prohibits and criminalises.’¹³³ The basis of his deci-
sion is however arguably much smaller. The Lord actually based his decisive argu-
ment against the grant of immunity—as he himself admitted—on the specific
terms of the Torture Convention:
Immunity ratione materiae applies not only to ex-heads of state and ex-ambassadors but
to all state officials who have been involved in carrying out the functions of the state . . . if
the implementation of the torture regime is to be treated as official business sufficient to
found an immunity for the former head of state, it must also be official business sufficient
to justify immunity for his inferiors who actually did the torturing. Under the conven-
tion the international crime of torture can only be committed by an official or someone
in an official capacity. They would all be entitled to immunity. Therefore, the whole elab-
orate structure of universal jurisdiction over torture committed by officials is rendered
abortive and one of the main objectives of the Torture Convention . . . will have been frus-
trated . . . all these factors together demonstrate that the notion of continued immunity
for ex-heads of state is inconsistent with the provisions of the Torture Convention.¹³⁴
In spite of the extensive reference to concepts of international criminal law and
jus cogens Lord Browne-Wilkinson hence accorded a decisive role to the Torture
Convention. This is corroborated by the fact that he held the immunity to be
unavailable since 8 December 1988.¹³⁵
¹²⁸ ibid 169. ¹²⁹ ibid 170.

¹³⁰ ibid 109. ¹³¹ ibid 109.
¹³² ibid 114. ¹³³ ibid.
¹³⁴ ibid 114–15. ¹³⁵ ibid 115.
The construction relied on to justify the conclusion of absence of immunity

makes the opinion internally inconsistent. Lord Browne-Wilkinson considered
that after 8 December organizing and authorizing torture could not be done ‘in
any capacity which gives rise to immunity ratione materiae because such actions
were contrary to international law.’¹³⁶ The acts of torture under consideration
did not therefore qualify for protection under section 20 SIA. However, within
the conception of the rule of functional immunity advanced by the Lord the
notion of official act controls the rule of state immunity ratione materiae. The
parameters of coherent argument inherent in the conception advanced by Lord
Browne-Wilkinson require the formulation of an exception in spite of the official
character of acts.¹³⁷
Lord Hope of Craighead wrote an intricate opinion. He saw the application
of the rule of immunity protecting Pinochet to turn on the distinction between
‘private acts on the one hand or governmental acts done in the exercise of his
authority as head of state on the other’. He considered act of state for the purpose
of functional immunity to be either act attributable to the state—‘[t]he critical
test would seem to be whether the conduct was engaged in under colour of or
in ostensible exercise of the head of State’s public authority’¹³⁸—or governmen-
tal act—‘[t]he sovereign or governmental acts of one state are not matters upon
which the courts of other states will adjudicate.’¹³⁹
Lord Hope asserted that there is not as yet a general exception to the immunity
from jurisdiction of national courts for crimes against international law.¹⁴⁰ He
expressed agreement with the analysis of Lord Slynn of Hadley in Pinochet no 1
who considered that
it is necessary to find provision in an international convention to which the state assert-
ing, and the state being asked to refuse, the immunity of a former head of state for an
official act is party; the convention must clearly define a crime against international law
and require or empower a state to prevent or prosecute the crime, whether or not it is
committed within its jurisdiction and whether or not committed by one of its nationals;
it must make it clear that a national court has jurisdiction to try a crime alleged against a
former head of state, or that having been a head of state is no defence and that expressly or
impliedly the immunity is not to apply so as to bar proceedings against him.¹⁴¹
Accordingly, Lord Hope set out to inquire whether the Torture Convention made
‘it clear that a former head of state has no immunity in the courts of a state which
¹³⁶ ibid.
¹³⁷ The reasoning of Lord Browne-Wilkinson on this point (and of Lords Hutton and Philips
who also argued that crimes against international law are not official acts) has been criticized in
doctrine, but on the basis of arguments not accepted in this study, cf n 208 below.
¹³⁸ ibid 146. Refers to A Watts (1994–III) 13, 56.
¹³⁹ ibid referring to I Congreso del Partido [1983] AC 244 (UK, HL, 1981) 262.
¹⁴⁰ ibid 147.
¹⁴¹ Pinochet no 1, 914, 1474 (per Lord Slynn of Hadley).
has jurisdiction to try the crime?’¹⁴² Since there is no express provision to this
regard it must be questioned whether immunity is removed by necessary implica-
tion. Lord Hope concludes that it is not. Among other things he considered that
‘[t]he risk to which former heads of state would be exposed on leaving office of
being detained in foreign states upon an allegation that they had acquiesced in an
act of official torture would have been so obvious to governments that it is hard to
believe that they would ever have agreed to this.’¹⁴³
However, Lord Hope then returned to considerations of customary inter-
national law to come to a final conclusion on the immunity issue:
Nevertheless there remains the question whether the immunity can survive Chile’s agree-
ment to the Torture Convention if the torture which is alleged was of such a kind or on
such a scale as to amount to an international crime.¹⁴⁴
He underlined that it is an accepted part of international law that ‘individuals
who commit international crimes are internationally accountable for them’.¹⁴⁵
Once it is accepted that national courts can exercise jurisdiction over crimes
against international law committed abroad Lord Hope considers this principle
to apply to national court proceedings as well:
In my opinion, once the machinery which it provides was put in place to enable jurisdic-
tion over such crimes to be exercised in the courts of a foreign state, it was no longer open
to any state which was a signatory to the convention to invoke immunity ratione materiae
in the event of allegations of systematic or widespread torture committed after that date
being made in the courts of that state against its officials or any other person acting in an
official capacity.
...
I would not regard this as a case of waiver. Nor would I accept that it was an implied
term of the Torture Convention . . . It is just that the obligations which were recognised
by customary international law in the case of such serious international crimes by the
date when Chile ratified the convention are so strong as to override any objection by it on
the ground of immunity materiae to the exercise over crimes committed after that date
which the United Kingdom had made available.¹⁴⁶
It now proves that Lord Hope’s earlier finding that this principle does not apply
to national courts was dependent on his restrictive approach to the question of
jurisdiction over crimes against international law. Since the allegations against
Pinochet concerned not incidental acts of torture but torture committed in pur-
suance of a policy to commit systematic torture as an instrument of government
and hence concerned crimes against international law, immunity did not extend
to him.
¹⁴² Pinochet no 3, 148.

¹⁴³ ibid 148–51, quotation at 151.
¹⁴⁴ ibid 151.
¹⁴⁵ ibid 151.
¹⁴⁶ ibid 152.
Lord Hope’s conclusion relies on an interaction between the Torture

Convention and the concept of crimes against international law. In contrast to
Lords Saville and Browne-Wilkinson, he did not rely on the definition of the
crime of torture in the Torture Convention. Rather, he relied on the establish-
ment of universal jurisdiction over the crime of torture, and hence over torture
amounting to a crime against international law, by the Torture Convention. He
considered that the date as from which immunity ratione materiae was lost was
30 October 1988, which was the date that Chile’s ratification of the Torture
Convention took effect, since from that date onwards Chile ‘was deprived of the
right to object to the extra-territorial jurisdiction which the United Kingdom was
able to assert over these offences’.¹⁴⁷
The scope of the refusal of immunity by Lord Philips is difficult to grasp. This
study argues that this scope is similar to that of the refusal by Lord Hope, but due
to some internal inconsistencies the opinion is open to a different interpretation.
Lord Philips approached the immunity issue in a distinct manner. He argued
that there is no customary international law rule granting immunity from crim-
inal jurisdiction for official acts. It should first be explained that Lord Philips did
‘not consider that s 20 of the 1978 Act has any application to conduct of a head
of state outside the United Kingdom’. He held this conduct to be ‘governed by
the rules of public international law’.¹⁴⁸ He argued that there is no custom on
the question of immunity from criminal jurisdiction for official acts since crim-
inal jurisdiction used to be territorial and it ‘seems inherently unlikely . . . that a
foreign head of state should commit a criminal offence in the performance of his
official functions while on a visit and subsequently return after ceasing to be head
of state. Certainly this cannot have happened with sufficient frequency for any
custom to have developed in relation to it.’¹⁴⁹
Lord Philips considered that ‘[i]f immunity from [a novel type of extra-ter-
ritorial criminal jurisdiction] is to be established it seems to me that this can
only be on the basis of applying the established general principles of international
law . . . rather than any specific rule of relating to immunity from criminal
process.’¹⁵⁰ He proposed to consider whether the claimed immunity was sup-
ported by the principle of equality of states and the related rule that one state will
not adjudicate over the governmental acts of another and the principle of non-
intervention in the internal affairs of other states.
The first principle, he argued, applies in civil proceedings against foreign state
officials since ‘to sue an individual in respect of the conduct of the state’s busi-
ness is, indirectly, to sue the state’. Lord Philips hence considered Pinochet to
be immune had the cases concerned civil proceedings in respect of the allegations
of torture.¹⁵¹ He did not however think that this reasoning has application to
¹⁴⁷ ibid. ¹⁴⁸ ibid 192.

¹⁴⁹ ibid 183. ¹⁵⁰ ibid 185.
¹⁵¹ ibid 186 and 182.
criminal proceedings that regard the personal responsibility of the individual.¹⁵²
As regards the second principle he developed the following argument:
[N]o established rule of international law requires state immunity ratione materiae to be
accorded in respect of prosecution for an international crime. International crimes and
extra-territorial jurisdiction in relation to them are both new arrivals in the field of pub-
lic international law. I do not believe that state immunity ratione materiae can co-exist
with them. The exercise of extra-territorial jurisdiction overrides the principle that one
state will not intervene in the internal affairs of another. It does so because, where inter-
national crime is concerned, that principle cannot prevail. An international crime is as
offensive, if not more offensive, to the international community when committed under
colour of office. Once extra-territorial jurisdiction is established, it makes no sense to
exclude from it acts done in an official capacity.¹⁵³
At first sight, it seems that Lord Philips denied immunity ratione materiae to
all crimes against international law.¹⁵⁴ However, on closer consideration, this
is less clear. The argument pivots on the existence of extra-territorial jurisdic-
tion. In combination with the, seemingly passing, assertion that it is not clear
whether international customary law recognizes universal jurisdiction in respect
of international crimes,¹⁵⁵ it could well be argued that the Torture Convention
is indispensable for his conclusion on immunity. Lord Philips’ opinion should
then be read in the light of his restrictive approach to the question of universal
jurisdiction.
However, the obiter dictum that no immunity ratione materiae is available for
acts of genocide either introduces uncertainty since the Genocide Convention
does not provide for universal jurisdiction.¹⁵⁶ This would seem to contradict the
finding that he requires a conventional basis for the exercise of jurisdiction. Lord
Philips omitted to pinpoint a date as from which immunity is no longer available
and leaves us to guess which of the above considerations he himself considered
to be decisive. This study considers it likely that the reference to the Genocide
Convention is based on the understandable but false assumption that that con-
vention provides for universal jurisdiction over the crime of genocide. The Torture
Convention is then at the basis of the opinion of Lord Philips.¹⁵⁷
¹⁵² ibid.
¹⁵³ ibid 189–90.
¹⁵⁴ Cf for this view eg CM Chinkin, ‘Regina v. Bow Street Stipendiary Magistrate, Ex parte
Pinochet Ugarte (No. 3)’ (1999) 93 AJIL 703, 705 fn 15; A Bianchi (1999) 249; N Bhuta, ‘Justice
Without Borders? Prosecuting General Pinochet’ (1999) 23 Melbourne University Law Review
499, 524–6. Although less explicit, a similar interpretation can be found in R Bank, ‘Der Fall
Pinochet: Aufbruch zu neuen Ufern bei der Verfolgung von Menschenrechtsverletzungen?’ (1999)
59 ZaöRV 677, 698–9.
¹⁵⁵ Pinochet no 3, 188–9.
¹⁵⁶ ibid 189–90. Cf n 69 above.
¹⁵⁷ In his individual opinion in Jones v Saudi Arabia and Abdul Aziz & Mitchell a.o. v Al-Dali
a.o. [2005] QB 699 (UK, CA, 2004), Lord Philips confirms this interpretation of his words. He
stated that in the Pinochet case he had ‘held that to claim immunity ratione materiae in respect of
torture was incompatible with Chile’s agreement to the Torture Convention’, § 123.
One other obiter dictum renders the opinion of Lord Philips internally inco-
herent. Lord Philips notes in conclusion that if the 1978 SIA does oblige the grant
of immunity to Pinochet in respect of all acts committed in performance of his
functions as head of state he does ‘not believe that those functions can, as a matter
of statutory interpretation, extend to actions that are prohibited as criminal under
international law’.¹⁵⁸ This finding is however not compatible with his earlier find-
ing that acts of torture are official acts for the purposes of civil proceedings. Also
the consideration that ‘[t]he only conduct covered by [the Torture Convention] is
conduct which would be subject to immunity ratione materiae, if such immunity
were applicable’¹⁵⁹ is not coherent if torture is not considered an official act.
The scope of the refusal of immunity by Lord Millett is debatable. Many com-
mentators have argued that Lord Millett denied immunity for international
crimes in general.¹⁶⁰ And indeed, several of the considerations found in the part in
which he discusses developments in international criminal law point in that dir-
ection. After a discussion of article 7 of the Nuremberg Charter, the Nuremberg
Judgment and the 1946 Principles of International Law adopted by the United
Nations General Assembly he argued that it ‘is no longer possible to deny that
individuals could be held criminally responsibility [sic] for war crimes and crimes
against peace and were not protected by state immunity from the jurisdiction of
national courts’.¹⁶¹ However, the part of his opinion that explicitly deals with the
immunity question seems to base the denial of immunity on a somewhat smaller
basis. He stated:
The definition of torture . . . is in my opinion entirely inconsistent with the existence of a
plea of immunity ratione materiae. The offence can be committed only by or at the insti-
gation of, or with the consent or acquiescence of, a public official or other person acting in
an official capacity. The official or governmental nature of the act, which forms the basis
of the immunity, is an essential ingredient of the offence. No rational system of criminal
justice can allow an immunity which is co-extensive with the offence.¹⁶²
And continued:
If the respondent’s arguments were accepted, [the provision implementing the obliga-
tions of the Torture Convention] would be a dead letter. Either the accused was acting in
a private capacity, in which case he cannot be charged with an offence under the section;
or he was acting in an official capacity, in which case he would enjoy immunity from
prosecution.¹⁶³
¹⁵⁸ Pinochet no 3, 192.

¹⁵⁹ ibid 190.
¹⁶⁰ Cf eg R Wedgwood, ‘International Criminal Law and Augusto Pinochet’ (2000) 40 VJIL
829, 841; CM Chinkin (1999) 705 fn 15; N Bhuta (1999) 524–5. Cf also Jones v Saudi Arabia and
Abdul Aziz & Mitchell a.o. v Al-Dali a.o. (UK, 2004) § 52 (per Mance LJ).
¹⁶¹ Pinochet no 3, 174.
¹⁶² ibid 178–9.
¹⁶³ ibid 179.
He stressed that the acts involved ‘were official and governmental or sovereign
acts by any standard’.¹⁶⁴ The Torture Convention did not, therefore, affect the
possible qualification of acts of torture under section 20 SIA as such. Moreover,
he did not regard the ratification of the Torture Convention to entail a waiver of
immunity since ‘there was no immunity to be waived’.¹⁶⁵ Rather, Lord Millett
concluded that
The offence is one which could only be committed in circumstances which would nor-
mally give rise to the immunity. The international community had created an offence
for which immunity rationae materiae could not possibly be available. International law
cannot be supposed to have established a crime having the character of a jus cogens and
at the same time to have provided an immunity which is co-extensive with the obligation
it seeks to impose.¹⁶⁶
However, not all crimes against international law can only be committed in an
official capacity.¹⁶⁷ It could even be asserted that although formally Lord Millett
did not explicitly rely on the entry into force of the Torture Convention, it is
unclear whether the status of the perpetrator is inherent in the definition of tor-
ture or whether it is a limitation specific to the Torture Convention.¹⁶⁸ In this
latter case Lord Millett’s conclusion in fact relies on the Torture Convention.¹⁶⁹
It should finally be noted that Lord Millett explicitly stated that there is a
difference between civil and criminal proceedings in respect of alleged torture:
acts which attract state immunity in civil proceedings because they are characterised as
acts of sovereign power may, for the very same reason, attract individual criminal liabil-
ity . . . I see nothing illogical or contrary to public policy in denying the victims of state
sponsored torture the right to sue the offending state in a foreign court, while at the same
time permitting (and indeed requiring) other states to convict and punish the individuals
responsible if the offending state declines to take action.¹⁷⁰
Lord Hutton—finally—can be said to have actually based the denial of immun-
ity on the qualification of torture as a crime against international law. The ‘cru-
cial question for decision’, argued Lord Hutton, ‘is whether, if committed, the
acts of torture . . . alleged against Senator Pinochet were carried out by him in the
¹⁶⁴ ibid 172.

¹⁶⁵ ibid 179.
¹⁶⁶ ibid.
¹⁶⁷ Cf eg Kadic v Karadžić (US, 1995) 239–41.
¹⁶⁸ Although the ICTY Statute does not explicitly include this element, the ICTY has held that
the definition of torture in the Torture Convention is now part of customary international law, cf eg
Čelebići Case, IT–96–21 Trial Chamber, Judgment (ICTY, 1998) § 452–9. The Tribunal did how-
ever hold that ‘[i]n the context of international humanitarian law, this requirement must be inter-
preted to include officials of non-State parties to the conflict’, ibid § 473. In the ICC Statute and
the Report of the Preparatory Commission for the International Criminal Court on the Elements
of Crimes (PCNICC/2000/INF/3/Add.2) there is again no mention of the status-requirement.
¹⁶⁹ Cf in this sense eg R Bank (1999) 695.
¹⁷⁰ Pinochet no 3, 179.
performance of his functions as head of state.’¹⁷¹ After a comprehensive review

of relevant developments in international law, and the principles of individual
responsibility and irrelevance of official capacity in particular, he concluded that
since the end of the 1939–45 war there has been a clear recognition by the international
community that certain crimes are so grave and so inhuman that they constitute crimes
against international law and that the international community is under a duty to bring
to justice a person who commits such crimes. Torture has been recognised as such a
crime.¹⁷²
Subsequently he held that since there is no jurisdiction to try Pinochet for acts of
torture prior to 29 September 1988:
it is unnecessary to decide when torture became a crime against international law prior
to that date, but I am of opinion that acts of torture were clearly crimes against inter-
national law and that the prohibition of torture had acquired the status of ius cogens by
that date.¹⁷³
Lord Hutton considered that the alleged acts of torture do not qualify for protec-
tion under the rule of functional immunity.
. . . I do not consider that Senator Pinochet or Chile can claim that the commission of acts
of torture after 29 September 1988 were functions of the head of state. The alleged acts of
torture by Senator Pinochet were carried out under colour of his position as head of state,
but they cannot be regarded as functions of a head of state under international law when
international law expressly prohibits torture as a measure which a state can employ in any
circumstances whatsoever and has made it an international crime.¹⁷⁴
Lord Hutton did allude to the Torture Convention in his final conclusion but
this does not seem to be relevant to his conclusion in any way.¹⁷⁵ This is also clear
from the fact that he adopted the date of 29 September 1988 for the immunity
issue; not because that date is relevant with regard to immunity but only because
there was no jurisdiction prior to that date. On 29 September 1988 the Torture
Convention had not been ratified by the United Kingdom nor Chile. Customary
international law considerations alone must therefore have been sufficient for
Lord Hutton to deny immunity for the torture allegations.
Lord Hutton could be seen to argue in the vein proposed in the next
section—albeit with a less developed view on the rationale of the rule of func-
tional immunity—were it not for his argument on Pinochet’s immunity from civil
proceedings. He held that under international law both Chile and Pinochet could
claim immunity if sued in civil proceedings with respect to the acts involved.
¹⁷¹ ibid 155.

¹⁷² ibid 163.
¹⁷³ ibid 164.
¹⁷⁴ ibid 165. Cf also 166.
¹⁷⁵ See differently H Fox (1999) 697.
Pinochet, he argued, could do so under the principle stated in Jaff e v Miller.¹⁷⁶
This obiter consideration evinces that Lord Hutton did not consider the individ-
ual responsibility of Pinochet for crimes of torture to affect the rationale of the
rule of functional immunity. The finding that for the purposes of criminal pro-
ceedings these acts do not qualify as official acts is therefore not coherent within
the conception of the rule of functional immunity relied on.
So what is the precedent value of the Pinochet case? After the examination of
the individual opinions one cannot but conclude that the common denomin-
ator of the majority judgment is confined to the outcome of the case. The scope
of the denial of immunity to Pinochet is limited by two factors. One factor is
the role of the Torture Convention in at least four of the six majority opinions.
Three Lords—maybe four if we include Lord Millett—did argue that there is
no functional immunity from criminal jurisdiction in respect of crimes against
international law that can be tried on the basis of universal jurisdiction. Only
the opinions of Lord Saville and Lord Browne-Wilkinson reason in a different
vein. However, Lord Hope and Lord Philips consider national courts to have
extraterritorial jurisdiction over crimes against international law only if the rele-
vant states have concluded a convention to that effect. The non-immunity hence
takes effect only upon the ratification of a convention that allows the exercise
of universal jurisdiction. Accordingly, the Torture Convention played a crucial
role in the denial of immunity by Lords Hope and Philips. Moreover, in con-
trast with Lord Hutton and Lord Hope, Lord Philips did not base his opinion on
the principle of irrelevance of official capacity. Rather, he argued that there is no
immunity from criminal jurisdiction for acts committed in an official capacity
at all. Finally, two Lords based their refusal of immunity on another aspect of
the Torture Convention. Lords Saville and Browne-Wilkinson argued that the
obligations of the Torture Convention are incompatible with the continued exist-
ence of a rule of functional immunity in respect of torture allegations because the
crime of torture is co-extensive with the rule of functional immunity.
Reliance on the Torture Convention seriously limits the scope of the deci-
sion. First, not all crimes against international law are supported by a convention
granting universal jurisdiction. Moreover, the explicit limitation to state officials
in the definition of torture is a peculiarity not applicable to all crimes against
international law. The fact that, for example, there is no convention allowing state
parties to exercise universal jurisdiction over the crime of genocide means that
the opinions of Lords Hope and Philips are no precedent in proceedings concern-
ing the prosecution of (former) foreign state officials for this crime. Moreover, the
fact that non-state actors can commit genocide means that the opinions of Lords
Saville and Browne-Wilkinson are no precedent either. Finally, the precedent
value of all four opinions is limited to state parties of the Torture Convention. It
¹⁷⁶ Pinochet no 3, 167. Cf for Jaff e v Miller and Others (Canada, 1993), ch 3 § 3.3 above.
cannot but be concluded that Iraqi or Zimbabwean nationality would have pro-
tected General Pinochet from extradition.
The second factor that limits the scope of the denial of immunity to Pinochet
is inherent in the conception of the rule of functional immunity that was at the
basis of the reasoning of the Lords—and hence applies to all judicial and aca-
demic thinking that proceeds from this conception. The Lords clearly proceeded
from an identification of the rule of functional immunity with the rule of state
immunity ratione materiae. While some Lords did consider that the acts of tor-
ture were not official acts, in the light of their further reasoning it is fair to say
that this is internally inconsistent with the conception of the rule of functional
immunity that they relied on. This has inevitable consequences for the func-
tional immunity from civil jurisdiction. Although only Lords Hutton, Millet
and Philips explicitly stated that Pinochet would have enjoyed immunity had he
been sued in civil proceedings instead, this conclusion is inherent in all six major-
ity opinions. Within the parameters of the conception it is impossible to distin-
guish between the state and the state official. The state official is shielded from
the civil jurisdiction of foreign national courts because, as the Court of Appeal
formulated it in Propend Finance, ‘[t]he protection afforded by the [SIA] to States
would be undermined if employees, officers or . . . “functionaries” could be sued
as individuals for matters of State conduct in respect of which the State they were
serving had immunity.’¹⁷⁷
Accordingly, the 2006 decision of the House of Lords in Jones v Saudi Arabia
reflects the only logical consequence of the conception of functional immunity
prevalent in the Pinochet case.¹⁷⁸ Two joined actions were at the basis of the Jones
case. Both actions concerned allegations of systematic torture in prisons in Saudi
Arabia and were instigated against the state of Saudi Arabia, as well as against the
individual state officials allegedly responsible for the torture. The Court of Appeal
had allowed a distinction between the position of the state and the position of
the individual officials, holding the former immune from its jurisdiction but the
latter not.¹⁷⁹ The House of Lords disagreed. It stated that as a rule ‘the foreign
state is entitled to claim immunity for its servants as it could if sued itself. The
foreign state’s right to immunity cannot be circumvented by suing its servants or
agents.’¹⁸⁰ This rule, it held, applies whenever a state is responsible for an act of
its official under international law. Lord Hoffmann wrote in this respect that ‘[i]t
has until now been generally assumed that the circumstances in which a state will
be liable for the act of an official in international law mirror the circumstances in
which the official will be immune in foreign domestic law. There is a logic in this
¹⁷⁷ Propend Finance Ltd v Sing (UK, 1997) 669.

¹⁷⁸ Jones v Saudi Arabia (UK, 2006).
¹⁷⁹ The decision of the Court of Appeal (2004) is further discussed at p 254ff below. Cf also
Jones v Saudi Arabia and Abdul Aziz 2003 WL 22187644 QBD (UK, High Court, 2003).
¹⁸⁰ Jones v Saudi Arabia (UK, 2006).
assumption: if there is a remedy against the state before an international tribu-
nal, there should not also be a remedy against the official himself in a domestic
tribunal.’¹⁸¹ Referring to, inter alia, articles 4 and 7 of the ILC Articles on State
Responsibility and the commentary thereto,¹⁸² he pointed out that this rule also
applies when the state official has not been acting in accordance with his instruc-
tions or authority. To hold otherwise ‘would produce an asymmetry between the
rules of liability and immunity’.¹⁸³
Consequently, the applicants were forced to argue that, more in general,
immunity ratione materiae could not be claimed in respect of torture allegations.
The substance of this argumentation, and the House of Lord’s rejection thereof,
will be discussed in chapter 6 of this study.
The idea that functional immunity of foreign state officials protects the gov-
ernmental acts of their home states is increasingly echoed in judicial and aca-
demic thinking.¹⁸⁴ The rule of state immunity is applied regardless of the status
of the defendant before the court. It was explained in chapter 3 of this study that
this concerns an unfortunate revival of Kelsen’s act of state immunity concept.
This study proposes a different approach.
2.3.1.3 An exception within the rationale of the rule

The rule of functional immunity of foreign state officials entails a presump-
tion. State officials are not personally responsible for acts committed within the
context of exercise of state authority under international law because they are
presumed to have committed these acts as the state. Accordingly, they cannot
be called to account in regard of these acts in their personal capacity. The non-
personal responsibility of officials that have acted as the arm or mouthpiece of the
state is a principle common to all national legal systems. The international law
variant of this rule does not allow states to determine whether a foreign state offi-
cial has acted ultra vires since the determination of the mandate of a state official
is part of the exclusive competence of the home state. As long as the official acts
within the context of state authority under international law he is presumed to
have acted within the scope of his mandate.
Chapter 3 of this study has explained why the two alternative act of state
concepts fail to convince. In the first place, while all acts covered by the rule of
functional immunity can be attributed to the home state, not all acts that can
be attributed to the state are covered by the rule of functional immunity. For
one, the forum state is allowed to determine the limits of the mandate of foreign
¹⁸¹ ibid § 74. Cf also § 12.

¹⁸² See for the commentary ILC Report on the work of its fifty-third session (2001), A/56/10.
¹⁸³ ibid § 78.
¹⁸⁴ See ch 3 § 3.3 above. Cf recently eg the opinions of the amici curiae in Prosecutor v Charles
Ghankay Taylor (SCSL, 2004), P Sands and A Macdonald, Submissions of the Amicus Curiae on
Head of State Immunity, available at <http://www.icc-cpi.int/library/organs/otp/Sands.pdf> § 108;
D Orentlicher, Submission of the Amicus Curiae on Head of State Immunity (on fi le with the author).
state officials operating on its territory. Acts that fall outside the mandate—like
the example of assassinations carried out by secret service agents on foreign
territory—do not qualify as official acts. In addition, the home state may always
declare that a certain official has acted ultra vires and can hence be sued before
the courts of the forum state. These ultra vires acts may however be attributable
to the home state.¹⁸⁵ Attributability is hence not the correct criterion to deter-
mine the official nature of an act for the purpose of the functional immunity
rule. More problematic even is the position that functional immunity is really
state immunity ratione materiae shielding the governmental acts of the home
state from scrutiny by foreign national courts. The criterion of governmental acts
includes both too much and too little. Too little because state officials can not in
fact be held personally responsible for acts committed on behalf of the state that
are not of a governmental character. Too much because state practice evinces that
international law does not protect governmental acts from foreign judicial scru-
tiny as such. Rather, the determination of the sovereign status of the defendant—
nominally or factually—can be seen to always precede the application of the rule
of state immunity.
The concept of individual responsibility under international law dates from well
before the twentieth century. The novelty of the Versailles Treaty and in particu-
lar of the Nuremberg Charter was that this concept was extended to individuals
acting under state authority. The principle of irrelevance of official capacity can
only be understood against the background of the act of state defence that shields
state officials from foreign jurisdiction in respect of acts committed within the
context of the exercise of state authority under international law. In the absence of
the principle it could be argued that only individuals that act outside the context
of state authority incur individual responsibility for crimes against international
law because, as a rule, international law obliges states to regard acts committed
within the exercise of state authority under international law as acts of state rather
than as personal acts of the individual who performed the acts under the cloak of
state authority. The principle spells out what the list of crimes for which individ-
uals incur personal responsibility in fact already evinces—and is accordingly
more explanatory or declaratory than constitutive in nature. State officials can be
sued in their personal capacity for crimes against international law.
It is in this respect noteworthy that the principle of irrelevance of official
capacity is formulated in the terms of the rule of functional immunity. As the
Nuremberg Charter formulates it:
The official position of defendants, whether as Heads of State or responsible officials in
Government Departments, shall not be considered as freeing them from responsibility.¹⁸⁶
¹⁸⁵ Cf ch 3 § 2.2.1.3 & 2.2.1.4 above.

¹⁸⁶ Art 7 Nuremberg Charter (emphasis added). Cf in particular the ICTY Statute, the
ICTR Statute, and the SCSL Statute, that provide for the principle of individual responsibility and
The principle of individual responsibility for state crimes and the principle of
irrelevance of official capacity hence directly target the functional immunity of
state officials. The principle is not an exception to the rule that state officials are
immune in respect of official acts. Acts are official in nature only when the act
is exclusively attributable to the state and the official does not incur individual
responsibility in their regard. The acceptance of individual responsibility for
crimes against international law defeats the presumption that individuals have
acted as the state whenever they act within the context of state authority under
international law in respect of a limited category of atrocious crimes. In other
words, the acceptance of individual responsibility for these crimes committed
under the ostensible authority of a state may be regarded as a collective, a priori,
defeat of the presumption of authority. The principle relied on in the McLeod
case is not superseded. Rather, states have agreed on normative limits for the
qualification of acts as official for functional immunity purposes. Functional
immunity ends where individual responsibility begins. Crimes against inter-
national law hence do not qualify as official acts (or acts of state) under the rule
of functional immunity.¹⁸⁷ Prosecution does not violate the sovereignty of the
home state. The forum state is not required to determine a limit on the mandate
of the accused foreign state official since the home state has agreed to a universal
limit on authority.¹⁸⁸
Since the principle defines the scope of the rule of functional immunity rather
than that it provides an exception to that rule it is impossible to distinguish inter-
national courts from national courts for the purpose of its application. The ICTY
rightly noted in the Blaškić case that ‘under [the norms of international crim-
inal law prohibiting war crimes, crimes against humanity and genocide] those
responsible for such crimes cannot invoke immunity from national or inter-
national jurisdiction even if they perpetrated such crimes while acting in their
official capacity’.¹⁸⁹
irrelevance of official capacity in one art under the heading of ‘individual responsibility’, arts 7, 6,
and 6 respectively. See for references footnotes 35, 48, and 50 above.
¹⁸⁷ Cf Q Wright (1947) 71; H Lauterpacht, ‘The Subjects of the Law of Nations’ (1947) 63 LQR
438, 442–3.
¹⁸⁸ Notably, international law exceptionally allows the conclusion that a foreign state official
was not exercising state authority under international law, which is crucially different from the con-
clusion that a foreign state official was acting ultra vires. The argument that state officials are not
immune in respect of ultra vires acts—cf M Tomonori (2003)—disregards the crucial role of the
principle of individual responsibility for crimes against international law. The functional immun-
ity rule in fact prevents states determining the mandate of foreign state officials that exercise state
authority under international law.
¹⁸⁹ Prosecutor v Blaškić (ICTY, 1997) § 41 (emphasis added). Cf also Prosecutor v Milosević
(ICTY, 2001) § 33 where the lack of immunity from the jurisdiction of the ICTY in that case is
equalled to the lack of immunity from the jurisdiction of the House of Lords in the Pinochet case.
In the Krstić case, however, the Tribunal refrained from stating the position before national courts,
Prosecutor v Krstić (ICTY, 2003) § 26.
It has been argued that in the Arrest Warrant Case the International Court
of Justice denied that the principle of irrelevance of official capacity applies to
national courts. The contested paragraph of the decision reads as follows:
The Court has carefully examined State practice, including national legislation and those
few decisions of national higher courts, such as the House of Lords or the French Court
of Cassation. It has been unable to deduce from this practice that there exists under cus-
tomary international law any form of exception to the rule according immunity from
criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where
they are suspected of having committed war crimes or crimes against humanity.
The Court has also examined the rules concerning the immunity or criminal respon-
sibility of persons having an official capacity contained in the legal instruments creating
international criminal tribunals, and which are specifically applicable to the latter [refers
to article 7 Nuremberg Charter and progeny]. It finds that these rules likewise do not
enable it to conclude that any such exception exists in customary international law in
regard to national courts.
Finally, none of the decisions of the Nuremberg and Tokyo international tribunals, or
of the International Criminal Tribunal for the Former Yugoslavia, cited by Belgium deal
with the question of the immunities of incumbent Ministers for Foreign Affairs before
national courts. The Court accordingly notes that those decisions are in no way at vari-
ance with the findings it has reached above.¹⁹⁰
Cassese has held that the court here states that the principle of irrelevance of offi-
cial capacity only applies to international criminal tribunals and that ‘no such an
exception exists in customary international law in regard to national courts’.¹⁹¹
A similar criticism is also implicit in the dissenting opinion of Judge Van den
Wyngaert. She complained that the Court had taken ‘an extremely minimal-
ist approach by adopting a very narrow interpretation of the “no-immunity-
clauses” in international instruments’.¹⁹² She argued that the Court had failed
to recognize the customary international law status of the principle of individual
accountability and had consequently failed to balance the ‘two divergent interests
in modern international (criminal) law: the need of international accountability
for such crimes as torture, terrorism, war crimes and crimes against humanity
and the principle of sovereign equality of States, which presupposes a system of
immunities’.¹⁹³
The Court’s words can, however, be read differently. The conclusion that ‘any
such exception’ does not exist in customary international law in regard to national
courts clearly refers to the ‘exception to the rule according immunity from crim-
inal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs’, not
¹⁹⁰ Arrest Warrant Case, 24, § 58.

¹⁹¹ A Cassese (2002) 865. Cf in similar sense J Salmon, ‘Libres propos sur l’arrêt de la C.I.J. du
14 Février 2002 dans l’affaire relative au mandat d’arrêt du 11 Avril 2000 (RDC c Belgique)’ (2002)
35 RBDI 512, 514–15.
¹⁹² Arrest Warrant Case, Dissenting Opinion Judge Van den Wyngaert, 153, § 27.
¹⁹³ ibid 155–7, § 28, quotation at 141, § 5.
to the principle of irrelevance of official capacity. While the reference to ‘national
courts’ may add to the confusion of a casual reader—in fact this author was indig-
nant about the audacity of the argument after a first glance at the judgment—it
is not unthinkable that the Court merely set out to distinguish substantive from
procedural immunity in this paragraph. As it states a little further on:
Immunity from criminal jurisdiction and individual criminal responsibility are quite
separate concepts. While jurisdictional immunity is procedural in nature, criminal
responsibility is a question of substantive law.¹⁹⁴
In this reading of the judgment the Court did recognize the customary inter-
national law status of the principle of irrelevance of official capacity but did not
regard this principle to affect rules of personal immunity—the position defended
in this study. In fact, Judge Van den Wyngaert herself—as well as dissenting
judge Al-Khasawneh—acknowledged that the distinction between substantive
and procedural immunities underlies the decision of the Court.¹⁹⁵
This study does not engage the question of universal civil jurisdiction,¹⁹⁶ but
if national courts can establish civil jurisdiction over crimes against international
law committed by foreign state officials it should be recognized that the absence of
functional immunity necessarily extends to civil proceedings.¹⁹⁷ If an individual
cannot be regarded to have acted as a mere arm or mouthpiece of a foreign state
in the performance of a particularly despicable act he incurs responsibility for the
act in his personal capacity. It makes no sense to argue that the question whether
an act qualifies as an act of state depends on the type of proceedings involved.
When an individual can be prosecuted and convicted for the commission of a
certain crime because the crime is not an act of state but an act also attributable to
the individual personally, he can necessarily be ordered to pay damages from his
personal estate to indemnify the victims of his crime in civil proceedings.
The act of state defence is not commonly discussed in national court proceed-
ings concerning foreign war criminals. All national prosecutions of foreign war
criminals that have acted under the cloak of state authority confirm, however,
implicitly the pertinence of the principle of irrelevance of official capacity to
national court proceedings.¹⁹⁸
The defence was exceptionally raised in the 1960s Israeli Eichmann case.
Eichmann was prosecuted on allegations of crimes against humanity commit-
ted in Germany during the Second World War. The alleged acts, he argued, were
acts of the German state for which he, as an organ of that state, could not be held
¹⁹⁴ Arrest Warrant Case, 25, § 60.

¹⁹⁵ Cf p 271 below.
¹⁹⁶ Cf § 1 above.
¹⁹⁷ The two issues can in fact be considered separately, as the ICJ states in the Arrest Warrant
Case: ‘absence of immunity does not imply jurisdiction’, 24, § 59.
¹⁹⁸ Cf in a similar sense, A Cassese (2002) 870–1; D Akande (2004) 413.
personally responsible. The Israeli Supreme Court formulated the argument as

follows:
The theory of ‘Act of State’ means that the act performed by a person as an organ of
the State . . . must be regarded as an act of the State alone. It follows that only the latter
bears responsibility therefore, and it also follows that another State has no right to pun-
ish the person who committed the act, save with the consent of the State whose mission
he performed. Were it not so, the first State would be interfering in the internal affairs of
the second, which is contrary to the conception of the equality of States based on their
sovereignty.¹⁹⁹
In order to overcome the defence, the court set out to establish limits on the con-
cept of state sovereignty. It cited approvingly the statement of Kunz that ‘[a]ny a
priori or unlimited political concept of sovereignty must, with inescapable logic,
lead to the non-existence of international law as law. Sovereignty is, therefore,
essentially a relative notion; its content depends on the stage of development of
international law.’²⁰⁰ The court held that
there is no basis for the doctrine when the matter pertains to acts prohibited by the law
of nations, especially when they are international crimes of the class of ‘crimes against
humanity’ . . . Of such odious acts it must be said that in point of international law they
are completely outside the ‘sovereign’ jurisdiction of the State that ordered or ratified their
commission, and therefore those who participated in such acts must personally account
for them and cannot shelter behind the official character of their task or mission . . .
...
international law postulates that it is impossible for a State to sanction an act that
violates its severe prohibitions, and from this follows the idea which forms the core of the
concept of ‘international crime’, that a person who was a party to such a crime must bear
individual responsibility for it. If it were otherwise, the penal provisions of international
law would be a mockery.²⁰¹
The court concluded with the words of the district court
The very contention that the systematic extermination of masses of helpless human beings
by a Government or régime could constitute ‘an act of state’, appears to be an insult to
reason and a mockery of law and justice.²⁰²
The act of state defence was hence rejected by reference to the principle of indi-
vidual responsibility for crimes against international law. States agree that these
crimes fall necessarily outside the protective cloak of state authority. Individuals
¹⁹⁹ Attorney-General of Israel v Adolf Eichmann (Israel, 1962) 308–9. Cf for the decision in first
instance Attorney-General of Israel v Adolf Eichmann (Israel, 1961).
²⁰⁰ JL Kunz, ‘The Nottebohm Judgment (Second Phase)’ (1960) 54 AJIL 536, 545.
²⁰¹ Attorney-General of Israel v Adolf Eichmann (Israel, 1962) 309–10.
²⁰² ibid 312.
sued in respect of allegations of committing such crimes must answer in their
personal capacity.²⁰³
It should finally be realized that the criticism on the conclusion that crimes
against international law do not qualify as official acts for functional immunity
purposes is always formulated from the perspective of the alternative act of state
concepts. When the concept of official act controls not only the application of
the rule of functional immunity but also the law of state responsibility and the
definition of certain crimes against international law the argument that individ-
uals that commit crimes against international law act not in an official but in a
private capacity ‘would constitute a remedy more harmful than the wrong it was
intended to remedy.’²⁰⁴
Several scholars have pointed out that the denial of official act status necessar-
ily means that the state does not bear international responsibility for the act con-
cerned. In this vein, Bothe cautioned that ‘wenn man ein bestimmtes Verbrechen
nicht als Amtshandlung gelten lassen will, die unmittelbare völkerrechtliche
Verantwortlichkeit des Heimatstaates des handelnden Staatsorgans entfällt’²⁰⁵
and Barker argued that ‘to deny the official character of such acts would be to
remove any liability which the State might have under both international law and
municipal law for the acts of its officials.’²⁰⁶
In addition, scholars have argued that crimes that can only be committed by
individuals acting in an official capacity—like the crime of torture—necessarily
qualify under the rule of functional immunity. As Lord Millett noted in the
Pinochet case: ‘Either the accused was acting in a private capacity, in which case
he cannot be charged with an offence under the section; or he was acting in an
official capacity, in which case he would enjoy immunity from prosecution.’²⁰⁷
²⁰³ Cf also: Ordonnance du 6 novembre 1998 (Belgium) 308; Bouterse R 97/163/12 Sv &
R 97/176/12 Sv, (Netherlands, Gerechtshof Amsterdam, 2000) § 4.1 and 4.2: The court held that
‘the commission of very grave punishable offences such as those in question cannot be regarded
as the official duties of a head of state’. The terse reasoning of the court however does not reveal
the argumentation underlying this conclusion. The immunity question was not discussed by the
Supreme Court since the conclusion that the Dutch courts did not have jurisdiction over the alleged
crimes because of the principle of non-retroactivity of penal legislation precluded the question,
Bouterse NJ 2002 77 (Netherlands, Hoge Raad, 2001). In the Cavallo case a former Argentinean
state official argued that he could not be extradited by Mexico to Spain to stand trial on accusations
of crimes against international law committed during the military regime in Argentina from 1976
to 1983 because ‘he was a member of the armed forces and obeying orders’. The Mexican Supreme
Court dealt with the argument as being a superior order argument rather than one of functional
immunity. It rejected the argument stating that ‘international legislation and international doc-
trine have considered that when dealing with crimes against humanity or injury to humanity,
responsibility is not waived on the grounds of acting on superior orders’. Decision on the Extradition
of Ricardo Miguel Cavallo (2003) 42 ILM 888 (Mexico, S Ct, 2003) 908.
²⁰⁴ M Spinedi, ‘State Responsibility v. Individual Responsibility for International Crimes:
Tertium Non Datur?’ (2002b) 13 EJIL 895, 897.
²⁰⁵ M Bothe (1971) 255 and 262.
²⁰⁶ JC Barker (1999) 943.
²⁰⁷ Pinochet no 3, 179 (per Lord Millett). Cf also the 2006 decision of the House of Lords in
Jones v Saudi Arabia § 19, § 79.
The argument that crimes against international law do not qualify as an official
act for the purposes of the rule of functional immunity has been said to rely on an
artificial distinction between the official nature of the act of torture as defined in
the Torture Convention and the official nature required for qualification of the
acts under section 20 SIA.²⁰⁸
Many scholars have criticized the reasoning of the ICJ in the Arrest Warrant
Case on these grounds. The Court held in an obiter dictum that a former foreign
state official may, as far as acts committed during his period of office, only be tried
‘in respect of acts committed during that period of office in a private capacity’.²⁰⁹
Salmon pungently noted that ‘[l]a formule adoptée par la Cour—dont il faut
esperér qu’elle fut le fruit d’une inadvertance—est donc particulièrement regret-
table. C’est l’éléphant dans le magasin de porcelaine. Il est certain, en tout état de
cause, qu’elle ne représente en rien le droit coutumier international. Si elle estimait
que des crimes de guerre et contre l’humanité devaient être considerés comme des
actes privés, elle se devait de le dire. En s’abstenant, elle prolonge et envenime la
controverse.’²¹⁰ Cassese wrote in this respect that ‘[i]t is . . . hardly imaginable that
a foreign minister may perpetrate or participate in the perpetration of an inter-
national crime “in a private capacity” . . . This would mean, for example, that the
crimes for which Joachim von Ribbentrop (Reich Minister for Foreign Affairs
from 1938 to 1945) was sentenced to death, namely crimes against peace, war
crimes and crimes against humanity, should be regarded as “private acts” . . .’²¹¹
²⁰⁸ Cf for this criticism of the Pinochet case but also more in general eg D Akande (2004) 414,
fn 46; O Dörr, ‘Statliche Immunität auf dem Rückzug?’ (2003) 41 Archiv des Völkerrechts 201,
214; R Bank (1999) 693; JC Barker (1999) 943: J Bröhmer, ‘Diplomatic Immunity, Head of State
Immunity, State Immunity: Misconceptions of a Notorious Human Rights Violator’ (1999)
12 LJIL 361, 370; I Buffard and U Kriebaum, ‘Der Fall Pinochet: Für und wider die Immunität
(I Buffard, Argumente für die Immunität)’ in W Karl and U Brandl (eds), Völker- und Europarecht
(2000) 25, 39–41; and the doctrine mentioned in n 211 below. Cf also E Denza (1999) for a discus-
sion of this issue.
²⁰⁹ Arrest Warrant case, 25, § 61 (emphasis added). Cf also the Joint Separate Opinion of Judges
Higgins, Kooijmans and Buergenthal, 88, § 85 the judges argued that ‘serious international crimes
cannot be regarded as official acts’.
²¹⁰ J Salmon (2002) 517.
²¹¹ A Cassese (2002) 866–70, 868 and 870. Cf also A Cassese (2003) 437 and 444;
S Wirth (2002); M Spinedi (2002b); M Frulli, ‘The ICJ Judgment on the Belgium v Congo Case
(14 February 2002): a Cautious Stand on Immunity from Prosecution for International Crimes’
(2002) 3 German Law Journal available at <http://www.germanlawjournal.com>; C McLachlan,
‘Pinochet Revisited’ (2002) 51 ICLQ 959, 959; P Gaeta, ‘Ratione Materiae Immunities of Former
Heads of State and International Crimes; The Hissène Habré Case’ (2003) 1 JICJ 186, 189–91; The
briefs of the amici curiae in SCSL, Appeals Chamber, Prosecutor v Charles Ghankay Taylor (2004),
P Sands and A Macdonald (2004) available at <http://www.icc-cpi.int/library/organs/otp/Sands.
pdf> § 113; D Orentlicher (2004) (on fi le with the author); CPR Romano and A Nollkaemper,
‘The Arrest Warrant Against the Liberian President, Charles Taylor’ (June 2003) ASIL insights,
<http://www.asil.org/insights/insigh110.htm>. Dissenting Judge Van den Wyngaert noted in this
respect that ‘[i]t is highly regrettable that the International Court of Justice has not, like the House
of Lords in the Pinochet case, qualified this statement. It could and indeed should have added that
war crimes and crimes against humanity can never fall into this category. Some crimes under inter-
national law . . . can for practical purposes, only be committed with the means and mechanisms of
The apparent tension between the requisites of the law of torture, the law of
state responsibility and the rule of functional immunity exists however only
under a defective interpretation of the latter rule. The immunity for acts per-
formed in the exercise of official functions is more than the words used to define
it. In chapter 3 of this study it was explained that there is a difference between
a legal and a factual approach to the concept of acts committed in an official
capacity. For purposes of the application of the rule of functional immunity the
official capacity in which an act is committed is established from an internal, the-
oretical perspective; while the official capacity requirement in the rules of state
responsibility and the definition of crimes concerns an external, factual perspec-
tive. Acts committed in the apparent or ostensible exercise of official functions
do not qualify under the rule of functional immunity when there was no actual
authority to act; while such apparent or ostensible exercise of official functions is
sufficient for qualification under the definition of torture and the establishment
of state responsibility.²¹²
The reliance on the possibility of attribution to the state to establish the offi-
cial nature of an act includes too much under the rule of functional immunity. It
should at this point be recalled that the murder of Staschynskij, the bombing of
the Rainbow Warrior, or the activity of foreign diplomatic or consular agents out-
side their particular functions for that matter, are not official acts for the purpose
of the rule of functional immunity either. The alternative for official acts is not
purely personal acts that cannot be attributed to the state. The alternative is acts
for which a state official cannot hide behind the authority of the foreign state.
In sum, acting in an official capacity from the factual perspective of the def-
inition of certain crimes under international law or the imputability of acts to
the foreign state under the rules of state responsibility is distinct from acting
in an official capacity from the theoretical perspective of the rule of functional
immunity, that is, from the perspective of performing acts that are in law the
acts of the foreign state only. To avoid confusion the notion ‘acts performed in
an official capacity’ may be best reserved for the definition of the former rules,
while the notion of ‘acts for which an official can be sued in his official capacity
only’ better reflects the nature of the protection available to state officials.²¹³ It is
a State and as part of a State policy. They cannot, from that perspective, be anything other than
“official” acts.’ § 36.
²¹² Cf on the concurrence of individual and state responsibility A Nollkaemper, ‘Concurrence
between Individual Responsibility and State Responsibility in International Law’ (2003) 52 ICLQ
615. A different question is whether the ICJ should have explicitly stated that crimes against inter-
national law do not qualify as official acts. Cf in this sense B Stern, ‘Immunities for Heads of State:
Where Do We Stand?’ in M Lattimer and P Sands (eds), Justice for Crimes against Humanity (2003)
73, 105–6.
²¹³ Cf Hafer v Melo (US, S Ct, 1991) 26: the Supreme Court held that the immunity of the state
official turns on ‘the capacity in which the state official is sued, not the capacity in which the official
inflicts the alleged injury’.
the non-imputability to the state official in his personal capacity, rather than the
imputability to the state that determines qualification under the rule.²¹⁴
Although US courts do not adopt the approach advanced in this study—they
have devised a third alternative act of state concept that controls the applicability
of the FSIA to foreign state officials and the application of the rule of functional
immunity—US case law provides an insightful example of how to distinguish
the official capacity that immunizes state officials from the official capacity that
is necessary to establish state responsibility and is part of the definition of certain
crimes.
In the case of Herbage v Meese—discussed in chapter 3 of this study—the
court held that officials could not be held personally responsible for actions taken
on behest of a foreign state or at least ‘under colour of law’.²¹⁵ It moreover con-
sidered that the acts of the defendants were of a sovereign nature. Accordingly,
the defendants qualified for protection under the FSIA. The court underlined
that there exists no ultra vires exception to the immunity under the FSIA hold-
ing that ‘[t]he FSIA is absolute in this regard, no matter how heinous the alleged
illegalities.’²¹⁶ The court hence relied on a mix of the two alternative conceptions
of act of state.
Scholars pointed out that Herbage v Meese would make the ATCA a dead letter
since acting under ‘colour of law’ would trigger the working of the FSIA while
‘colour of law’ requirements are essential to make out many violations of human
rights norms.²¹⁷ Torture, summary execution, extrajudicial killing, disappear-
ance, arbitrary detention and systematic racial discrimination are all crimes that
can only be committed by a ‘public official or other person acting in an official
capacity’. And although non-state actors can violate international law as well, it
remains the case that once individuals are state actors having acted under the
colour of law they seem protected by the FSIA.²¹⁸
²¹⁴ It is noted that the Resolution on Immunities from Jurisdiction and Execution of Heads of
State and of Government in International Law ((2000–01) 69 AIDI 743) of the Institut de Droit
International attempts to avoid the question whether crimes against international law qualify as
official acts. Art 13 of the Resolution provides that former heads of state only enjoy immunity ‘in
respect of acts which are performed in the exercise of official functions and relate to the exercise
thereof. Nevertheless, he or she may be prosecuted and tried when the acts alleged constitute a crime
under international law’. Cf eg remarks of Salmon (J Verhoeven, (Rapporteur Institut de Droit
International), Les immunités de juridiction et d’exécution du chef d’Etat et de gouvernement en
droit international, Réponses et observations des membres de la Commission, (2000–01) 69 AIDI
554, 575) and Treves (Institut de Droit International (Rapporteur J Verhoeven), Les immunités de
juridiction et d’exécution du chef d’Etat et de gouvernement en droit international, Plenary Session
(2001), (2000–01) 69 AIDI 601, 672) for the background of this formulation. However, since
art 3 of the Resolution provides that incumbent heads of state are only immune from civil proceed-
ings if the ‘suit relates to acts performed in the exercise of his or her official functions’ the question
remains pertinent.
²¹⁵ Herbage v Meese (US, 1990). Cf ch 3 § 3.3 above.
²¹⁶ ibid 108.
²¹⁷ Cf eg J Fitzpatrick, ‘The Future of the Alien Tort Claims Act of 1978: Lessons from in Re
Marcos Human Rights Litigation’ (1993) 67 St John’s Law Review 491, 507.
²¹⁸ Cf on non-state actors and international law Kadic v Karadžić (US, 1995) 239–41.
In order to avoid the catch-22 subsequent courts have abandoned the termin-
ology used in Herbage and have relied on reasoning developed within the context
of the act of state doctrine instead. In the case of Filártiga v Peña-Irala the court
had held that while an ‘action by a state official in violation of the Constitution
and laws of the Republic of Paraguay, and wholly unratified by that nation’s gov-
ernment’ could not properly be characterized as an act of state this ‘does not strip
the tort of its character as an international law violation, if in fact it occurred
under color of government authority’.²¹⁹ Similarly, in Forti v Suarez-Mason the
court considered that ‘[o]fficial action is not necessarily the governmental and
public action contemplated by the act of State doctrine.’²²⁰
The Trajano v Marcos case incorporated this technique in the FSIA test.²²¹
The case concerned a suit against Marcos–Manotoc, the daughter of the former
president of the Philippines Marcos, who was accused of several crimes includ-
ing torture, summary execution and disappearance. The defendant claimed to
be entitled to state immunity under the FSIA because the challenged acts were
premised on her authority as a government agent. The court rejected her claim
holding that the defendant acted on her own authority since the alleged acts were
not taken within any official mandate. Crucially, the court linked this conclu-
sion to an earlier decision. The court considered the conclusion that the defend-
ant was not protected by the FSIA ‘consistent with our earlier decision that the
same allegations against former President Marcos are not nonjusticiable “acts of
state” . . . In so holding, we implicitly rejected the possibility that the acts set out
in Trajano’s complaint were public acts of the sovereign.’²²²
This approach was confirmed in Hilao v Marcos.²²³ The court in this case
rejected the argument that the FSIA immunizes alleged acts of torture and exe-
cution by a foreign official. In the first place, it was held that ‘where the officer’s
powers are limited by statute, his actions beyond those limitations are considered
individual and not sovereign actions’.²²⁴ Marcos’ alleged human rights violations
were held not to have been taken ‘within any official mandate and were therefore
not the acts of an agency or instrumentality of a foreign state within the mean-
ing of the FSIA’.²²⁵ Further, it was held that the court’s previous decision that
Marcos’ acts were not protected by the act of state doctrine implicitly rejected the
possibility that the acts were public acts of a sovereign.²²⁶
²¹⁹ Filártiga v Peña-Irala (US, 1980) 890.

²²⁰ Forti v Suarez-Mason 672 F Supp 1531 (US, DC for the Northern District of California,
1987) 1546. Cf also eg Paul v Avril (US, 1993) 212.
²²¹ Trajano v Marcos (In re Estate of Ferdinand E. Marcos Litigation) 978 F 2d 493 (US, Ct of
Apps (9th Cir), 1992).
²²² ibid 498, fn 10, referring to Trajano v Marcos 878 F 2d 1439 (US, Ct of Apps (9th Cir),
1989).
²²³ Hilao v Marcos (US, 1994). Cf also eg Cabiri v Assasie-Gyimah 921 F Supp 1189 (US, DC for
the Southern District of New York, 1996).
²²⁴ ibid 1470–71, quotation at 1470.
²²⁵ ibid 1472.
²²⁶ ibid 1471. The court refers to Trajano v Marcos (US, 1992) 498 fn 10.
The case of Helen Liu v The Republic of China demonstrates that a disqualifica-
tion of an act as official act does equally not affect the responsibility of the foreign
state employing the state official in respect of that act.²²⁷ The case concerned
a claim of the widow of Henry Liu against the Republic of China (ROC) for
the shooting and killing of her husband in California by two gunmen acting on
orders of the Director of the Defence Intelligence Bureau of the ROC. The court
found that no state immunity was available to the ROC since the exception of
§ 1605(a)(5) applied. The section provides that foreign states are not immune
from US jurisdiction in cases
in which money damages are sought against a foreign state for personal injury or death,
or damage to or loss of property, occurring in the United States and caused by the tor-
tious act or omission of that foreign state or of any official or employee of that foreign
state while acting within the scope of his office or employment; except this paragraph
shall not apply to:
(a) any claim based upon the exercise or performance or the failure to exercise or per-
form a discretionary function regardless of whether the discretion be abused, or
(b) any claim arising out of malicious prosecution, abuse of process, libel, slander, mis-
representation, deceit or interference with contract rights.
The ROC argued that the Director of the Defence Intelligence Bureau had acted
on a personal grudge against Liu and had accordingly not acted within the scope
of his employment since the murder of Liu had not been authorized nor sanc-
tioned by the ROC and violated internal Chinese law. These alleged facts, though
probably sufficient to deny the Director a right to invoke the FSIA when a claim
should be instigated against him, did not remove the responsibility of the ROC
for the acts.
In sum, even if foreign state officials act under colour of law and in the official
capacity required by several definitions of crimes and the rules of vicarious state
responsibility this does not mean that the relevant act qualifies as an official act
for the purpose of functional immunity. The distinction applied by the US courts
makes it possible to sue a foreign state official in a personal capacity for acts for
which the state bears vicarious liability.
The act of state concept that controls the immunity of foreign state officials
from the jurisdiction of the US courts does not however rely on the principle of
individual responsibility for crimes against international law.²²⁸ Rather, it seems
to rely on the factual possibility to isolate the acts of the defendant from the
acts of the home state. If an act is clearly performed in the exercise of sovereign
authority, concerns the official policy of a foreign state, or is ratified by a foreign
state it is not unlikely that the defendant would be allowed the protection of the
²²⁷ Helen Liu v The Republic of China (US, 1989).

²²⁸ Cf also FL Kirgis, ‘Alien Tort Claims, Sovereign Immunity and International Law in US
Courts’ (1988) 82 AJIL 323, 329.
FSIA.²²⁹ The 1995 decision in Xuncax and Others v Gramajo and Ortiz v Gramajo
explicitly confirmed the controlling role of the foreign state in the qualification
under the FSIA.²³⁰ The plaintiffs in these cases sought compensatory and puni-
tive damages from Gramajo, the former minister of defence of Guatemala, for
injuries sustained at the hand of Guatemalan military forces. The challenged acts
included summary execution, disappearance, torture, arbitrary detention and
cruel, inhuman and degrading treatment in Xuncax, and kidnap, torture, and
sexual abuse in Ortiz. Gramajo relied on the FSIA in defence to the allegations.
The court considered that ‘such immunity would in any event be unavailable in
suits against an official arising from acts that were beyond the scope of the offi-
cial’s authority’. The fact that the Guatemalan government had not characterized
the actions as officially authorized was considered a factor relevant to the out-
come of the case.²³¹
The so-called ‘Flatow Amendment’ to the terrorist state exception in the 1976
Foreign Sovereign Immunities Act confirms that crimes against international law
can qualify as acts of state for the purpose of the applicability of the FSIA to indi-
vidual state officials. In 1996 the Antiterrorism and Effective Death Penalty Act
(AEDPA) amended the Foreign Sovereign Immunities Act to include an excep-
tion for certain human rights violations. The exception provides redress for US
nationals who seek money damages against a foreign state designated ‘state spon-
sor of terrorism’ by the State Department ‘for personal injury or death that was
caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage tak-
ing, or the provision of material support or resources . . . for such an act if such act
or provision of material support is engaged in by an official, employee, or agent
of such foreign state while acting within the scope of his or her office, employ-
ment, or agency’.²³² A mere five months later an amendment to the AEDPA was
enacted. The amendment allows for non-economic and punitive damages against
an official, employee or agent of a foreign state designated as ‘terrorist’ and made
²²⁹ In Kadic v Karadžić (US, 1995) the court considered that the act of state doctrine only
applies when a claim concerns an act related to the ‘officially approved policy of a state’, 250.
Commenting on the possible friction between the Torture Victim Protection Act and the act of
state doctrine Senator Specter considered that ‘[t]he act of state doctrine does not provide a shield
from liability under this act. This doctrine precludes US courts from sitting in judgment on the
official public acts of a sovereign government . . . Because this doctrine applies only to public acts,
and no foreign government commits torture as a matter of official policy, this doctrine cannot be
violated by allowing a cause of action for torture.’ In addition, the FSIA, ‘would not normally pro-
vide a defense to an action under this act’. This would only be so, he argued, when the state official
had an ‘agency relationship’ with the foreign state requiring that the state ‘admit some knowledge
or authorization of relevant acts’, 138 Cong Rec S2668 (daily ed 3 March 1992). Cf also the House
Report, HR Rep No 367, 102d Cong, 2d Sess 5 (1992), reprinted in 1992 USCCAN 84, 88; Senate
Report on the TVPA, S Rep 102–249, 102d Cong, 1st Sess at 8 (1991).
²³⁰ Xuncax and Others v Gramajo and Ortiz v Gramajo 886 F Supp 162 (US, DC, District of
Massachusetts, 1995); 104 ILR 165.
²³¹ ibid 176, fn 10.
²³² § 1605 (7) FSIA. Antiterrorism and Effective Death Penalty Act, Pub L No 104–32, 110
Stat 1214 (1996). Cf ch 6, p 314–15 and p 354–7 below.
clear that the state sponsored terrorism exception to the FSIA applies to claims
against foreign states and foreign state officials alike.²³³ The amendment lays
down that such an official
while acting within the scope of his or her office, employment, or agency shall be liable to
a United States national or the national’s legal representative for personal injury or death
caused by acts of that official, employee, or agent for which the courts of the United States
may maintain jurisdiction under section 1605(a)(7) of title 28, United States Code, for
money damages which may include economic damages, solatium, pain, and suffering,
and punitive damages if the acts were among those described in section 1605(a)(7).
It further provides that
[n]o action shall be maintained under this action . . . if an official, employee, or agent of
the United States, while acting within the scope of his or her office, employment, or
agency would not be liable for such acts if carried out within the United States.
The Flatow case concerned a claim brought by the parents of a US college student
killed in a suicide attack on a bus passing through the Gaza strip, claimed by a
faction of the Palestine Islamic Jihad.²³⁴ In accordance with the amendment the
court held the state sponsored terrorism exception to extend to state officials that
have acted as agents in the implementation of state policy.
It is clear that the amendment proceeds from the assumption that individual
state officials accused of ‘state sponsored terrorism’ are in principle covered by the
FSIA. Hence, crimes against international law can be ‘acts of state’ for the pur-
pose of the rule of immunity of foreign state officials from the jurisdiction of the
US courts.
The US approach recalls the theory on the prosecution of war crimes before
the concept of individual responsibility for crimes committed under the author-
ity of the state was established and Röling’s distinction between ‘individual’ and
‘system’ criminality.²³⁵ However, as long as the foreign state does not object to
the exercise of jurisdiction over its (former) official the US courts are prepared
to accept limits of the mandate of senior state officials who would most probably
have been assumed to exercise state authority under the ‘old’ approach.²³⁶
²³³ Civil Liability for Acts of State Sponsored Terrorism, Pub L 104–208, div A, title I, Sec
101(c) (title V, Sec 589), Sept 30, 1996, 110 Stat 3009–121, 3009–172. Cf HR Conf Rep 863,
104th Cong, 2nd sess 1996 reprinted at 1996 USCCAN 924. In Flatow v Islamic Republic of Iran
1998) 13 it was explained that ‘[i]nterpretation in pan materia is . . . the most appropriate approach
to the construction of both provisions . . . The amendment should be considered to relate back to the
enactment of 28 U.S.C. §1605(a)(7) as if they had been enacted as one provision, . . . and the two
provisions should be construed together and in reference to one another.’
²³⁴ Flatow v Islamic Republic of Iran (US, 1998).
²³⁵ Cf n 18 above.
²³⁶ Cf eg Doe et al v Lumintang, Civ A No 00–674 (US, DC for the District of Columbia, 2001
and 2004): The Deputy Chief of the Indonesian Army was held individually responsible under the
principle of command responsibility for a wide range of human rights abuses committed by the
Indonesian military.
In sum, the (dis)qualification under the US notion act of state does not
unequivocally entail a normative judgement. It appears that the authority of for-
eign states to ratify acts of its officials is unlimited. The interference of the for-
eign state on behalf of its (former) official—like that of Chile in the proceedings
against Pinochet—appears to be sufficient to include the official in the protection
of the FSIA. In practice the reach of the ATCA and TVPA may accordingly be
limited to state officials that have fallen in disgrace or that are too unimportant
for the home state to put its reputation on the line for. The Flatow Amendment
evinces the unconvincing nature of the construction. Officials of states desig-
nated ‘state sponsor of terrorism’ qualify under the protection of the FSIA but
are then responsible with their personal estate because of an exception to the rule
of state immunity. The amendment provides that foreign officials can only be
held responsible when US officials would bear responsibility in similar circum-
stances. However, when US officials can be sued in their personal capacity this
is not an exception to the rule of state immunity but the non-applicability of
the rule of state immunity and a perfect comparison between the two situations
would result in the non-applicability of the FSIA to foreign state officials that
can be sued in their personal capacity.²³⁷ The current approach to the question of
the applicability of the FSIA to individuals incorporates the US act of state doc-
trine in the rule of state immunity and the relevant case law accordingly does not
reflect international law.
In conclusion it must be admitted however that although the possibility to sue
individual state officials in respect of crimes committed under the colour of law
in the US courts is more limited than under the proposal advanced in this study,
it is positively preferable over Kelsen’s act of state immunity theory.
From the perspective proposed in this study the immunity question at issue
in the Pinochet case appears in a fundamentally different light. The rule of state
immunity ratione materiae only applies if a state official cannot be sued in his
personal capacity. As explained in chapter 3 of this study, the rule of functional
immunity is a prerequisite for the applicability of the rule of state immunity.²³⁸
States have agreed on a universal limit on the mandate of their state officials
in respect of these crimes, which accordingly do not qualify as official acts for
the purposes of the rule of functional immunity. Acts of torture are never
committed in an official capacity in the legal sense of that term. Pinochet could
therefore be sued in his personal capacity for the allegations of crimes against
international law.²³⁹
²³⁷ Cf eg Hafer v Melo (US, 1991) discussed in ch 3 above.

²³⁸ It was suggested in ch 3 that it may be better to declare such suits inadmissible than to apply
the rule of state immunity, cf § 2.2.2.
²³⁹ Notably, Pinochet was not sued on the basis of vicarious responsibility, as Lord Millett
rightly pointed out in Pinochet no 3, 179: ‘ . . . Senator Pinochet is not alleged to be criminally liable
because he was head of state when other responsible officials employed torture to maintain him
in power. He is not alleged to be vicariously liable for the wrongdoing of his subordinates. He is
The difference with Pinochet no 3 is obvious. The conception of the rule of

functional immunity advanced in this study reveals a direct link between that
rule and the principle of individual responsibility and the principle of irrelevance
of official capacity. In contrast, when the focus is on the official capacity in which
an act is committed in the factual sense of the term it is necessary to establish an
exception for crimes against international law that is not only applicable to inter-
national proceedings. Moreover, while in Pinochet no 3 the conception of the rule
of functional immunity necessitated the conclusion that functional immunity
had been available in civil proceedings in respect of the same allegations, the reli-
ance on the attribution of the act to the state official in his personal capacity does
not allow a distinction between civil and criminal proceedings.
The position defended in this study received support from the 2004 decision
of the UK Court of Appeal in Jones v Saudi Arabia.²⁴⁰ Contrary to the House of
Lords two years later,²⁴¹ the Court of Appeal unanimously found for the claim-
ants. The judgment does not however unequivocally state the reasons for the
refusal to grant immunity to the individual state officials. The argumentation of
the judges remains somewhat obscure because of the insistence that their conclu-
sion is compatible with the Pinochet precedent. Both Mance LJ—who wrote the
opinion of the court—and Lord Philips—who added an individual opinion—
ultimately based the denial of immunity on the ground that no rational distinc-
tion can be made between the exercise of criminal jurisdiction and the exercise of
civil jurisdiction. However, the distinction between criminal and civil jurisdic-
tion formed exactly the thrust of Pinochet no 3.
At the outset, Mance LJ rejected the argument of defendants that the rule of
functional immunity is co-extensive with the crime of torture. He argued that
the requirement that the pain or suffering be inflicted by a public official does no
more . . . than identify the author and the public context in which the author must be
acting. It does not lend to the acts of torture themselves any official or governmental
character or nature, or mean that it can in any way be regarded as an official function to
inflict, or that an official can be regarded as representing the state in inflicting, such pain
and suffering. Still less does it suggest that the official inflicting such pain or suffering can
be afforded the cloak of state immunity . . . The whole tenor of the Torture Convention is
to underline the individual responsibility of state officials for acts of torture . . . and I do
not consider that one can derive from its definition of torture . . . any conclusion on the
different question whether a state can assert immunity in respect of a civil claim against
its officials based on allegations of systematic torture.²⁴²
alleged to have incurred direct criminal responsibility for his own acts in ordering and directing a
campaign of terror involving the use of torture.’
²⁴⁰ Jones v Saudi Arabia and Abdul Aziz & Mitchell a.o. v Al-Dali a.o. (UK, 2004).
²⁴¹ Jones v Saudi Arabia (UK, 2006), discussed in § 2.3.1.2 above.
²⁴² ibid § 71.
He then moved to the examination of the argument that the proceedings
impleaded Saudi Arabia. Mance LJ based the rejection of that argument on the
Pinochet case. He argued that the ‘statements by three members of the House of
Lords (Lords Hutton, Millett, and Philips) assuming or maintaining the con-
tinued existence of immunity ratione materiae in respect of a former head of
state or other official in civil proceedings (even proceedings based on systematic
torture)’²⁴³ were completely obiter.²⁴⁴ ‘It is not easy to see’, wrote Mance LJ, ‘why
civil proceedings against an alleged individual torturer should be regarded as
involving any greater interference in or a more objectionable form of adjudication
upon the internal affairs of a foreign state . . . Nor is it easy to see why a civil claim
against an individual torturer should be regarded as indirectly impleading the
foreign state in any more objectionable respect than a criminal prosecution.’²⁴⁵
He concluded that ‘[t]here would . . . be considerable incongruity in a solution
whereby an alleged torturer who was and remained within the jurisdiction could
be prosecuted but not sued.’²⁴⁶
Lord Philips was one of the three judges in Pinochet no 3 who explicitly stated
that Pinochet would have been immune from civil suit in respect of the same
allegations.²⁴⁷ He felt therefore obliged to explain his shift in position in an indi-
vidual opinion.
His argumentation differed somewhat from that relied on by Mance LJ. He set
out to restate the Pinochet precedent in the following terms:
It . . . emerges clearly from the majority that a state cannot assert immunity ratione mate-
riae in relation to a criminal prosecution for torture in as much as torture is a breach of jus
cogens under international law. Th is does not merely apply to those states who are party
to the Torture Convention. The Torture Convention reflects the position under public
international law.
...
Pinochet demonstrates that torture can no longer fall within the scope of official duties
of a state official.²⁴⁸
He then asserted that
[o]nce the conclusion is reached that torture cannot be treated as the exercise of a state
function so as to attract immunity ratione materiae in criminal proceedings against indi-
viduals, it seems to me that it cannot logically be so treated in civil proceedings against
individuals.
...
²⁴³ ibid § 57, in general § 54–7.

²⁴⁴ ibid § 74.
²⁴⁵ ibid § 75–6.
²⁴⁶ ibid § 81.
²⁴⁷ Cf p 232 above.
²⁴⁸ Jones v Saudi Arabia and Abdul Aziz & Mitchell a.o. v Al-Dali a.o. (UK, 2004) § 124 and
§ 126.
If civil proceedings are brought against individuals for acts of torture in circumstances
where the state is immune from suit ratione personae, there can be no suggestion that the
state is vicariously liable. It is the personal responsibility of the individuals, not that of the
state, which is in issue. The state is not indirectly impleaded by the proceedings.²⁴⁹
It must be concluded that both judges have engaged in a deductive argumen-
tation on the basis of the outcome of the Pinochet case rather than in an induct-
ive argumentation based on the theoretical conception of the rule of functional
immunity that was at its basis. The decision in Pinochet no 3 proceeded from
the assumption that the rule of state immunity ratione materiae in principle
applied to the proceedings. Not because the decision necessarily implicates Chile
but because the decision necessarily implicated the sovereign activity of Chile.
The Lords did not rely on the principle of individual responsibility for crimes
against international law to determine the status of the defendant before the
court. Mance LJ preferred to ignore this. Lord Philips went even one step further
and restated the ratio decidendi of Pinochet no 3 in terms that are not supported
by close study of that decision. Lord Philips stated that an act cannot be official
for the purposes of civil immunity and unofficial for the purposes of criminal
immunity. This is very right indeed. However, the statement that Pinochet no 3
declared acts of torture to be unofficial simply does not hold true.²⁵⁰
By stating that civil proceedings against a state official in respect of torture
allegations do not implead the home state the court has implicitly restated the
rule of functional immunity in terms that are very close to those proposed in this
study. Lord Philips in particular acknowledged that the state is not impleaded
whenever the individual has incurred personal responsibility in respect of the
alleged acts. It cannot but be admitted that the conception of the rule of func-
tional immunity that shines through the argumentation of the judges is very dif-
ferent from that at the basis of Pinochet no 3. The immunity of state officials is
no longer merely a question of state immunity ratione materiae. Rather, the rule
of functional immunity and the concept of ‘official act’ acquire a distinct role.
Just as this study argued in chapter 3, the rule of functional immunity for official
acts is seen as a prerequisite for the application of the rule of state immunity to
proceedings against foreign state officials. In sum, the decision of the Court of
Appeal in Jones v Saudi Arabia and Abdul Aziz silently moved away from the con-
cept of act of state immunity that was prevalent in Pinochet no 3.
It is a pity that the shift in conception of the rule of functional immunity was
not admitted openly. Also in conclusion Lord Philips attempted to fit his argu-
mentation in the mould of precedent. He stated that the principle of Propend
Finance ‘has no application if . . . the subject matter of the action does not rank
²⁴⁹ ibid § 127 and § 128.

²⁵⁰ It is in this respect noteworthy that judge Mance held the prohibition of torture not to be
co-extensive with the rule of functional immunity (ibid § 71) while the majority of the Lords in
Pinochet no 3 had reasoned otherwise (cf the discussion of the opinions of Lords Saville, Browne-
Wilkinson, Philips, and Millett above).
as “matters of State conduct” ’.²⁵¹ This conclusion assumes a room for reason in
the Propend principle that really does not exist. A proper conclusion would have
been that the principle of Propend Finance has been formulated in overbroad
terms. Instead of the application of the rule of state immunity to proceedings
against foreign state officials that have acted as an arm or mouthpiece of the
foreign state, the principle espouses an act of state immunity in the sense pro-
posed by Kelsen. The rewriting of history is not a satisfactory solution to flawed
precedent.
2.3.1.4 . . . That may not conclusively settle the competence of the court
At this point we should come back to an issue touched upon in chapter 3 of this
study, namely the distinction of different types of international crimes as pro-
posed by De Sena.²⁵² According to De Sena national courts in principle refrain
from exercising jurisdiction over international crimes like the crime of genocide,
the crime of aggression, or crimes against humanity. Since the imputability to
the state constitutes the context in which the individual responsibility for these
crimes necessarily inserts itself, the ascertainment of this responsibility requires
an inquiry into the overall government policy of which they are, by definition,
the expression. We can in this regard think of cases that require a national court
to determine the legality of a particular military intervention, of the use of cer-
tain weapons in an armed conflict, or of certain strategies of warfare. Especially
cases against senior government officials like the (former) head of state, (former)
ministers, or (former) army commanders are likely to involve the decision of this
type of question.²⁵³ This is different with other international crimes. While the
question of imputability of the act may form a constituent of the definition of the
crime—as in the case of torture—and the responsibility of the state under the
law of state responsibility may be inferred from the ruling, the imputability of
international responsibility to the state is in substance irrelevant.
The identification of this difference by De Sena is pertinent, but this study
does not agree that it relates to the rule of functional immunity. Rather, it may
be seen to give rise to a residual competence issue. This study does not purport to
deal with this issue in any detail—the relevance lies primarily in its articulation
and its distinction from immunity rules—but one or two suggestions as to its
possible substance will be made.
At the outset the issue should be distinguished from the non-justiciability
rule that is sometimes propounded in national courts. In the Buttes Gas case the
²⁵¹ ibid § 130.

²⁵² Ch 3 § 2.3.
²⁵³ The distinction is hence different from that between ‘individual’ and ‘system’ criminality as
defined by Röling (cf n 18 above). While Röling saw the killing of prisoners of war, the torture of
captured people to obtain information, or the killing of civilians to spread terror when ordered by
the government to support the war effort as ‘system criminality’ (128), these examples would qual-
ify under individualized crimes under the distinction proposed here.
House of Lords needed to take sides in an inter-state territorial dispute in order to

decide a dispute between two private individuals.²⁵⁴ Lord Wilberforce held:
[T]he essential question is whether . . . there exists in English law a more general prin-
ciple that the courts will not adjudicate upon the transactions of foreign sovereign states.
Though I would prefer to avoid argument on terminology, it seems desirable to consider
this principle, if existing, not as a variety of ‘act of state’ but one for judicial restraint or
abstention . . . In my opinion there is, and for long has been, such a general principle, start-
ing in English law, adopted and generalised in the law of the United States of America,
which is effective and compelling in English courts. This principle is not one of discre-
tion, but is inherent in the very nature of the judicial process.²⁵⁵
He referred to the views of the Legal Advisor to the US Department of State
attached to the amicus curiae brief filed in the proceedings on the same issue
before US courts and to the decisions of those courts.²⁵⁶ In the attached letter to
the Attorney-General, the Legal Advisor considered
We believe that the political sensitivity of territorial issues, the need for unquestionable
U.S. neutrality and the harm to our foreign relations which may otherwise ensue, as
well as the evidentiary and jurisprudential difficulties for a U.S. court to determine such
issues, are compelling grounds for judicial abstention . . .
We do not believe that this judicial self-restraint should turn on such analytical ques-
tions as whether the so-called Act of State doctrine which is traditionally limited to gov-
ernmental actions within the territory of the respective state can apply to an exercise of
disputed territorial jurisdiction. It rather follows from the general notion that national
courts should not assume the function of arbiters of territorial conflicts between third
powers even in the context of a dispute between private parties.
The US court had considered that the determination of the questions put to it
was ‘constitutionally reserved to the executive branch’.²⁵⁷ In addition, it had con-
cluded that
[t]he issue of sovereignty is political not only for its impact on the executive branch, but
also because the judicial or manageable standards are lacking for its determination. To
decide the ownership of the concession area it would be necessary to decide (1) the sover-
eignty of Abu Musa, (2) the proper territorial water limit and (3) the proper allocation of
continental shelf. A judicial resolution of the dispute . . . is clearly impossible.²⁵⁸
²⁵⁴ Buttes Gas v Hammer [1982] AC 888 (UK, HL, 1981).

²⁵⁵ ibid 931–2.
²⁵⁶ Cf Occidental Petroleum Corporation v Buttes Gas and Oil Company 331 F Supp 92 (US, DC
for the Central District of California, 1971) affirmed by the Ct of Apps (9th Cir), 461 F 2d 1261
(1972); Occidental of Umm al Qaywayn Inc v A Certain Cargo of Petroleum Laden Aboard the Tanker
Dauntless Colocotronis 577 F 2d 1196 (US, Ct of Apps (5th Cir), 1978).
²⁵⁷ Occidental of Umm al Qaywayn Inc v A Certain Cargo of Petroleum Laden Aboard the Tanker
Dauntless Colocotronis (US, 1978) 1203.
²⁵⁸ ibid 1204. In rationalizing its finding the court conveyed a startling thesis on international
law in general: ‘In their external relations, sovereigns are bound by no law; they are like our ances-
tors before the recognition or imposition of the social contract. A prerequisite of law is a recog-
nized superior authority whether delegated from below or imposed from above where there is no
The decision in the US courts clearly relied heavily on domestic conceptions of the
relation between judiciary and executive.²⁵⁹ Lord Wilberforce did acknowledge
this but found that a more general principle could be seen to ultimately underlie
the decision. Most pertinently, he considered that the question ‘what issues are
capable, and what are incapable, of judicial determination must be answered in
closely similar terms in whatever country they arise, depending, as they must,
upon an appreciation of the nature and limits of the judicial function’.²⁶⁰ He
concluded that the issues that had to be decided
are not issues upon which a municipal court can pass. Leaving aside all possibility of
embarrassment in our foreign relations . . . there are . . . no judicial or manageable stand-
ards by which to judge these issues, . . . the court would be in a judicial no-man’s land: the
court would be asked to review transactions in which four sovereign states were involved,
which they had brought to a precarious settlement, after diplomacy and the use of force,
and to say that at least part of these were ‘unlawful’ under international law.²⁶¹
Crawford argued that the prohibition at issue in Buttes was of an international law
character.²⁶² The bearing of international law principles on the questions at issue
in Buttes is however dubious—to say the least. It must be realized that the pro-
hibition keeps a court from deciding disputes that of itself fall within its essential
jurisdiction. Since in this type of case a ruling does not directly affect the foreign
state involved it may be argued that the balance of interests tips to the side of the
parties to the dispute. As Singer put it:
One would search far to find support in international law for the proposition that the
courts of one country ought not to describe in apt terms the acts of the government of
another country.²⁶³
For the purposes of this study the question needs no definite answer. The con-
sideration of the Buttes type case principally serves as an example for distinction.
For one, in the conflict of laws cases represented by Sabbatino and Oetjen the role
of the question as to the violation of international law differs from that in Buttes.
It was explained in chapter 2 that states may deviate from the normal conflict of
recognized authority, there is no law. Because no law exists binding these sovereigns and allocating
rights and liabilities, no method exists to judicially resolve their disagreements. The ownership of
the island, and derivatively its waters, has long been the subject of dispute. Were we to resolve this
dispute we would not only usurp the executive power, but also intrude the judicial power beyond its
philosophical limits.’ (1204–05).
²⁵⁹ In Baker v Carr the Supreme Court stressed that ‘[t]he nonjusticiability of a political ques-
tion is primarily a function of the separation of powers.’ 369 US 186 (1962) 210.
²⁶⁰ Buttes Gas v Hammer (UK, 1981) 936.
²⁶¹ ibid 938. Cf for a case with similar problems: Petrotimor Companhia de Petroleos SARL v
Commonwealth of Australia [2003] FCAFC 3 (Australia, Federal Court of Australia, New South
Wales District Registry, 2003).
²⁶² J Crawford, ‘Decisions of British Courts During 1982 involving Questions of Public or
Private International Law’ (1982) 53 BYIL 259, 265.
²⁶³ M Singer, ‘The Act of State Doctrine of the United Kingdom: An Analysis with Comparisons
to United States Practice’ (1981) 75 AJIL 283, 291.
law rules when a foreign law violates international law.²⁶⁴ In other words, as a
consequence of a finding of violation of international law acts of state may not be
recognized in a foreign court. The outcome of the question determines whether a
foreign state will enjoy its normal ‘right’, namely the application of its laws to situ-
ations that are regulated by it under the normal conflict of laws rules. The discre-
tion of courts to set aside the normal rules calls for appropriate safeguards since a
finding of violation of international law does affect the rights of the foreign state
involved. Mann in fact acknowledged that the scope of the principle he advanced
was not unlimited. The fact that foreign acts of state may be refused effect when
contrary to international law does not mean, he cautioned, that courts are free
to declare foreign acts of state contrary to international law. Mann argued that
national courts may only refuse to give effect to foreign acts of state if there has
been a clear breach of a clear international duty. Courts, he wrote, may only come
to the conclusion that a foreign law amounts to an international delinquency
when ‘both the law and the facts are clearly established’.²⁶⁵
When the prosecution of a foreign state official requires the settlement of a
controversy on the rights and obligations of the home state in terms of inter-
national law it cannot be said that such settlement only constitutes ‘a prelimin-
ary to the decision of a question of private rights which in itself is subject to the
competency of the Court of law’. The requirement that law and facts are clearly
established hence applies with much greater force to the determination of the
illegality of state action that creates the competence of the national court. When
civil or criminal proceedings are instigated against (former) foreign state offi-
cials for crimes against international law the finding of the violation of the inter-
national law norm creates the possibility to prosecute these officials. If an act does
not amount to torture but merely to ‘assault and battery’ the state official alleged
to have committed the act can claim to have acted as the state.²⁶⁶
According to De Sena, the rare examples of national prosecution of foreign
state officials for context-crimes—like the Eichmann,²⁶⁷ Barbie,²⁶⁸ Demjanjuk,²⁶⁹
Finta,²⁷⁰ and Karadžić²⁷¹ cases—must be understood in the context of action
undertaken by the international community in respect of these crimes: the estab-
lishment of the Nuremberg Tribunal as part of the systematic dismantling of the
²⁶⁴ Ch 2 § 3.2.3.
²⁶⁵ FA Mann, ‘International Delinquencies before Municipal Courts’ (1954) 70 LQR 181, 196.
See in the same sense P Weil, ‘Le contrôle par les tribunaux nationaux de la licéité internationale
des actes des États étrangers’ (1977) 23 AFDI 9, 47.
²⁶⁶ Cf Jones v Saudi Arabia and Abdul Aziz & Mitchell a.o. v Al-Dali a.o. (UK, 2004) § 94.
²⁶⁷ Attorney-General of Israel v Eichmann (Israel, 1961), confirmed by the Supreme Court
(1962).
²⁶⁸ Féderation National des Déportées et Internés Résistants et Patriotes and Others v Barbie
(France, 1983 and 1984; 1985; 1988).
²⁶⁹ Demjanjuk v Petrovsky (US, 1985).
²⁷⁰ Regina v Finta (Canada, 1989).
²⁷¹ Kadic v Karadžić (US, 1995).
overall organization of the German state, and the establishment of the ad hoc
international criminal tribunal for the former Yugoslavia.
Alternatively, recalling the words of Mann, it could be said that the law and the
facts of these context-crimes were clear. In this respect a parallel may be drawn to
the non-justiciability doctrine. Lord Wilberforce distinguished the case of Buttes
Gas v Hammer from cases where the question as to the situation under inter-
national law ‘may . . . be capable of determination as a matter of fact’. The question
at issue in Buttes, he considered, could not ‘be decided simply as an issue of fact
upon evidence: it calls, on the contrary, for adjudication upon the validity, mean-
ing and effect of transactions of sovereign states’. In another relevant passage he
stressed that ‘it is not to be assumed that these matters have now passed into his-
tory, so that they now can be examined with safe detachment.’²⁷² A second case
that deserves mention in this respect is the 2002 decision of the House of Lords
in Kuwait Airways Corporation v Iraqi Airways Company and Others.²⁷³ The case
provides an important example of how consensus in the international commu-
nity on the illegality of certain actions may allow national courts to also regard
those actions illegal in proceedings between private persons that affect the rights
of foreign states. The dispute between the two companies required passing on
the legality of the invasion and annexation of Kuwait by Iraq in 1990. The Lords
rejected the non-justiciability argument advanced by Iraqi Airways Company
(IAC). They relied on the string of Security Council resolutions condemning
the annexation to corroborate the proposition that it was ‘plain beyond argu-
ment’ that that seizure and assimilation ‘were flagrant violations of rules of inter-
national law of fundamental importance’.²⁷⁴ The conclusion of Lord Nicholls
reads in relevant part:
A breach of international law of this seriousness is a matter of deep concern to the world-
wide community of nations. This is evidenced by the urgency with which the UN
Security Council considered this incident and by its successive resolutions. Such a fun-
damental breach of international law can properly cause the courts of this country to
say that, like the confiscatory decree of the Nazi government of Germany in 1941, a law
depriving those whose property has been plundered of the ownership of their property in
favour of the aggressor’s own citizens will not be enforced or recognised in proceedings
in this country. Enforcement or recognition of this law would be manifestly contrary to
the public policy of English law. For good measure, enforcement or recognition would
also be contrary to this country’s obligations under the UN Charter. Further, it would
sit uneasily with the almost universal condemnation of Iraq’s behaviour and with the
military action, in which this country participated, taken against Iraq to compel its with-
drawal from Kuwait. International law, for its part, recognises that a national court may
²⁷² Buttes Gas v Hammer (UK, 1981).

²⁷³ Kuwait Airways Corporation v Iraqi Airways Company and Others [2002] 2 AC 883 (UK,
HL, 2002); 125 ILR 602, 677.
²⁷⁴ ibid 682, § 20.
properly decline to give effect to legislative and other acts of foreign states which are in
violation of international law . . .²⁷⁵
Lord Steyn, moreover, stated that although not all violations of international law
trigger the public policy exception, the invasion and annexation of Iraq is a para-
digm case since the prohibition of the use of force is jus cogens, SC resolutions
under chapter VII are binding in law on all members of the UN, and ‘a universal
consensus’ on the illegality of Iraq’s aggression existed.²⁷⁶
The invasion of Kuwait by Iraq is indeed a paradigm example. It is not difficult
to see how the illegality of that act under international law may be regarded an
‘issue of fact upon evidence’. The condemnation of the international community
was immediate and universal, and the SC quickly moved to adopt resolutions
under chapter VII in which it emphatically stated the illegal nature of the inva-
sion and annexation of Kuwait.²⁷⁷ A similar international consensus was dis-
played in respect of the conflicts in the former Yugoslavia and Rwanda—when
the SC decided to establish international criminal tribunals to prosecute those
responsible for the crimes committed, and most prominently after the defeat of
Nazi Germany—with the dismantling of the German state and the Nuremberg
trials.²⁷⁸ In addition, certain controversial questions may become less so with
the passing of time. For example, after regime changes many countries in South
America have launched inquiries into the human rights abuses allegedly commit-
ted by the military regimes in the 1970s and 1980s and the atrocities committed
in Argentina and Chile can now be safely stated as facts upon evidence.²⁷⁹ As
Lord Browne-Wilkinson rightly held in Pinochet no 3, ‘[t]here is no real dispute
that during the period of the . . . Pinochet regime appalling acts of barbarism were
committed in Chile and elsewhere in the world: torture, murder and the unex-
plained disappearance of individuals, all on a large scale.’²⁸⁰
Recent controversies as regards the exercise of universal jurisdiction can be
seen to be caused by a disregard for this residual competence issue. The case insti-
tuted against General Tommy Franks, the commander of the US troops in Iraq,
²⁷⁵ ibid 685, § 29.

²⁷⁶ ibid 709, § 113, 711–12, § 114 (per Lord Steyn).
²⁷⁷ Cf also Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia (Australia,
2003) § 63, where the court held that ‘the facts in the present case are much closer to those in Buttes
than to those in the Kuwait case’ because in Kuwait ‘the breach of international law had been deter-
mined by the Security Council acting under the United Nations Charter’.
²⁷⁸ See for the establishment of the ICTY, SC Resolution 827 (1993); and for the establishment
of the ICTR, SC Resolution 955 (1994).
²⁷⁹ Cf eg CS Nino, Radical Evil on Trial (1996).
²⁸⁰ Pinochet no 3, 101. The events that took place in Chile during the military regime have
been the subject of thorough investigation, both in Chile (eg Report of the Chilean National
Commission on Truth and Reconciliation (The Rettig Report) (translation PE Berryman 1993) as well
as on the international level (eg Amnesty International, United Nations). See for more informa-
tion: International Commission of Jurists, Crimes against Humanity: Pinochet Faces Justice (1999);
RJ Wilson, ‘Prosecuting Pinochet: International Crimes in Spanish Domestic Law’ (1999) 21
Human Rights Quarterly 927.
in respect of alleged war crimes committed by the US military in Iraq is a case in
point. The complaint included, inter alia, the use of cluster bombs and looting
protected by or under orders from the US army. The United States was furious
about the instigation of criminal proceedings and threatened Belgium with vari-
ous retaliation measures if the proceedings were to go ahead. While this study
argues that General Franks does not enjoy functional immunity in respect of
allegations of crimes against international law, the accusations against him set
out to question the legality of US policy in Iraq on the basis of an interpretation
of the law and the facts that is highly controversial.
In this respect the dissent of Lord Browne-Wilkinson to the 2001 Princeton
Principles on Universal Jurisdiction is notable. He wrote:
I am strongly in favour of universal jurisdiction over serious international crimes if, by
those words, one means the exercise by an international court or by the courts of one state
of jurisdiction over the nationals of another state with the prior consent of that latter
state, i.e. in cases such as the ICC and the Torture Convention.
But the Princeton Principles propose that individual national courts should exercise
such jurisdiction against nationals of a state which has not agreed to such jurisdiction.
Moreover, the principles do not recognise any form of sovereign immunity: Principle 5(1).
If the law were to be so established, states antipathic to Western powers would be likely to
seize both active and retired officials and military personnel of such Western powers and
stage a show trial for alleged international crimes. Conversely, zealots in Western states
might launch prosecutions against, for example, Islamic extremist for their terrorist activ-
ities. It is naïve to think that, in such cases, the national state of the accused would stand
by and watch the trial proceed: resort to force would be more probable. In any event, the
fears of such legal actions would inhibit the use of peacekeeping forces when it is otherwise
desirable and also the free interchange of diplomatic personnel. I believe that the adoption
of such universal jurisdiction without preserving the existing concepts of immunity would
be more likely to damage than to advance chances of international peace.²⁸¹
This study suggests however that universal jurisdiction and the absence of func-
tional immunity is no open sesame to the exercise of jurisdiction over foreign
state officials. The concerns of Lord Browne-Wilkinson would be met—at least
in part—if states refrain from the exercise of universal jurisdiction over highly
controversial allegations of crimes against international law that require a deci-
sion on the context of state policy.
The issue is—to put it mildly—not devoid of problems. The reliance on the
expression of consensus through international institutions is far from ideal.
The (in)actions of the international community often reflect political expe-
diency rather than legal standards.²⁸² This author does not purport to offer a
²⁸¹ The Princeton Project on Universal Jurisdiction, The Princeton Principle on Universal
Jurisdiction (2001), dissent Lord BrowneWilkinson (in fn 20), available at <http://www.princeton.
edu/~lapa/unive_jur.pdf>.
²⁸² Cf eg P Klein, ‘Responsibility for Serious Breaches of Obligations deriving from Peremptory
Norms of International Law and United Nations Law’ (2002) 13 EJIL 1241, 1247.
comprehensive answer. The contribution of this study is limited to the identifi-

cation and articulation of the issue and its distinction from immunity law. Apart
from De Sena no author or court has recognized the relevance of the distinction
between isolated crimes and crimes that are necessarily inserted in the context of
state policy. While De Sena thought the issue to reflect an aspect of the rule of
functional immunity, this study insists that it is a separate residual issue concern-
ing the competence of national courts.²⁸³ The acknowledgement of the pertinence
of the issue is a first step to the formulation of more institutionalized solutions to
the problem. The international community could for example agree to give a UN
organ a specific mandate to report on situations that warrant the exercise of uni-
versal jurisdiction.²⁸⁴
In conclusion, one final observation is called for. The identified residual limit
on the competence of national courts casts an interesting light on the debate on
the jurisdiction of the International Criminal Court over nationals of non state
parties. In contrast with the ICTY and the ICTR, the ICC is not established by
a resolution of the UN Security Council. The Court has been established by the
Treaty of Rome and can hence only bind states that have accepted its jurisdiction.
The Statute of the Court provides that the Court may exercise jurisdiction when
the Security Council refers a situation to the prosecutor under Chapter VII of the
Charter of the UN, or when a situation is referred to the prosecutor by either the
state on the territory of which the conduct in question occurred, or the state of
which the person accused of the crime is a national, is party to the statute or has
accepted the court’s jurisdiction, or when the prosecutor initiates an investigation
into crimes committed on the territory of such state.²⁸⁵ In other words, the Court
may exercise jurisdiction over nationals of non state parties if these nationals are
suspected of committing certain crimes within the territory of a state party. This
aspect of the Court’s jurisdiction has met fierce opposition.²⁸⁶ Especially the
²⁸³ Cf P De Sena (1996) 139. Also in P De Sena (1997) 367; P De Sena (1999) 964ff, discussed
in ch 3 § 2.3 above. Cf also JL Brierly, ‘The Nature of War Crimes Jurisdiction’ in H Lauterpacht
and CHM Waldock (eds), The Basis of Obligation in International Law and Other Papers by the Late
JL Brierly (1958) 297 (original text in (1944) 2 The Norseman): ‘political acts, such as the making
of aggressive war, . . . may well be right to punish, but . . . cannot properly be made the object of legal
process’.
²⁸⁴ Cf in this respect the proposals regarding the determination of the occurrence of serious
breaches of obligations under peremptory norms of international law as controlling the Articles
on the Responsibility of States for Internationally Wrongful Acts (2001), mentioned in NHB
Jørgensen, The Responsibility of States for International Crimes (2000) 212 and 214.
²⁸⁵ Arts 12 and 13 Rome Statute of the ICC.
²⁸⁶ See eg DJ Scheffer, ‘The United States and the International Criminal Court’ (1999) 93
AJIL 12; R Wedgwood, ‘The International Criminal Court: An American View’ (1999) 10 EJIL
93; G Hafner et al, ‘A Response to the American View as Presented by Ruth Wedgwood’ (1999)
10 EJIL 108; M Zwanenburg, ‘The Statute for an International Criminal Court and the United
States: Peace Without Justice?’ (1999) 12 LJIL 1. Notably, the drafters of the Statute did even pro-
ceed from the position that neither the state of territoriality nor the state of nationality needed to
be a party to the Statute for the Court to be able to establish jurisdiction because of the principle of
universal jurisdiction, cf M Scharf, ‘The ICC’s Jurisdiction over the Nationals of Non-Party States:
A Critique of the US Position’ (2001) 64 Law & Contemporary Problems 67, 77.
United States has criticized the scope of the Court’s jurisdiction and has tried to
ensure the exemption of its officials operating abroad.²⁸⁷
We will not enter the intricate discussion between proponents and opponents
of the jurisdictional provisions of the Rome Statute in any detail here. It is how-
ever noted that, as Judge Huber stated in the Island of Palmas case, ‘whatever
may be the right construction of a treaty, it cannot be interpreted as disposing
of the rights of independent third Powers’.²⁸⁸ Accordingly, if national courts are
not competent to decide certain allegations of crimes against international law
against foreign state officials, neither are international courts that cannot bind
the home state of such official.²⁸⁹ While the US attack on the ICC is overbroad—
the US argues that there can be jurisdiction over its nationals unless it consents to
the jurisdiction of the Court—this study suggests that some legitimate concern
as to the scope of the jurisdictional provisions of the ICC Statute does exist.
2.3.2 Personal Immunity

2.3.2.1 Customary international law
It was explained in the previous section that the principle of irrelevance of offi-
cial capacity secures the responsibility of the individual who commits crimes
against international law. The principle does not however secure the jurisdiction
of the court. In other words, the principle regards the substantive but not the pro-
cedural immunity of state officials.²⁹⁰ The principle of individual responsibility
²⁸⁷ Cf The American Servicemembers’ Protection Act (ASPA) 2002 (title II of Public Law
107–206); M Benzing, ‘U.S. Bilateral Non-Surrender Agreements and Art 98 of the Statute of the
International Criminal Court; an Exercise in the Law of Treaties’ (2004) 8 Max Planck Yearbook
of United Nations Law 181; R Van Alebeek, ‘From Rome to The Hague, Recent Developments on
Immunity Issues in the ICC Statute’ (2000) 13 LJIL 485, 488–93.
²⁸⁸ Island of Palmas (Miangas) Case (The Netherlands v United States) (PCA, 1928) 842. Cf also
art 34 of the Vienna Convention on the Law of Treaties (1969): ‘A treaty does not create either obli-
gations or rights for a third State without its consent’, reprinted in (1969) 8 ILM 697.
²⁸⁹ It should in this respect be noted that it has been argued—outside the context of the present
discussion—that even when national courts do have jurisdiction this does not mean that this jur-
isdiction can be exercised by an international court since the latter exercises a more intrusive form
of jurisdiction, cf M Morris, ‘High Crimes and Misconceptions: The ICC and Non-Party States’
(2001) 64 Law & Contemporary Problems 13, 30: ‘An even remotely successful international court
will have significant prestige and authority. The political repercussions of such a court’s determin-
ing that a state’s acts or policies were unlawful would be substantial indeed, and categorically dif-
ferent from the repercussions of the same verdict rendered by a national court. If a guilty verdict
were passed by a national court in an official-acts case, the matter would remain a disagreement
among equals, one state maintaining that an unlawful act had been committed, the other disput-
ing its occurrence or defending its lawfulness. By contrast, were the ICC to pronounce an official
act to constitute a crime, the decision would bear the authoritative weight and resulting political
impact of categorically different nature.’
²⁹⁰ Cf in similar sense eg The Princeton Project on Universal Jurisdiction, The Princeton
Principles on Universal Jurisdiction (2001), available at <http://www.princeton.edu/~lapa/unive_
jur.pdf>, Commentary on Principle 5; A Cassese (2002). Cf also H Fox (2002) 429–33, at 431 we
read: ‘Nothing specific as to immunity was included in the Nuremberg Charter, nor was there any
mention of immunity in the Statutes of the International Criminal Tribunals for Yugoslavia and
Rwanda.’
for crimes against international law and the principle of irrelevance of official
capacity accordingly do not affect the personal immunity enjoyed by foreign
diplomatic agents and foreign heads of state during their term of office.
Thinking about it, this is really almost a trite thing to say. Of course there is a
difference between the responsibility of a person and the jurisdiction of the court
to determine that responsibility. In fact, the whole purpose of personal immunity
is to shield certain state officials from foreign jurisdiction in respect of allegations
of acts for which they bear personal responsibility. The personal immunity of
diplomatic agents and heads of states while in office was never an issue before the
Nuremberg Tribunal and has not been given thought by commentators either.
Only recently states have started to take their jurisdiction under international
criminal law seriously. It is not surprising that the haphazard prosecution of a
handful of elderly Nazi war criminals no longer representing the German state
has not brought the question to the surface. It is fair to say that until article 27.2 of
the ICC Statute the personal immunity from the jurisdiction of courts in respect
of crimes against international law was a commonly overlooked issue. The ques-
tion was only debated in the Commission that studied the possibility of prosecu-
tion and punishment of war criminals after the First World War. It is recalled
that one of the principal reasons why the US delegates to the Commission did not
agree with the report sent to the Versailles Peace Conference was the assertion of
the Commission that jurisdiction could be established over incumbent heads of
state.²⁹¹
The International Law Commission is responsible for the only authority that
the principle of irrelevance of official capacity also entails an exception to the
personal immunities of state officials. In the commentary to article 7 of the 1996
Draft Code of Crimes against the Peace and Security of Mankind we read:
The absence of any procedural immunity with respect to prosecution or punishment in
appropriate judicial proceedings is an essential corollary of the absence of any substantive
immunity or defence. It would be paradoxical to prevent an individual from invoking his
official position to avoid responsibility for a crime only to permit him to invoke this same
consideration to avoid the consequences of this responsibility.²⁹²
But why would it be paradoxical to lift the functional immunity of thousands
and thousands of state officials because the idea that they are not personally
responsible for these acts is outrageous, but to retain the personal immunity of
a limited group of state officials while they are in office because the conduct of
international diplomacy so requires? The rationale of diplomatic immunity and
head of state immunity—as set out in chapter 4 of this study—applies regardless
of the nature of the alleged crime or tort.²⁹³
²⁹¹ Cf § 1 above.
²⁹² YBILC 1996 ii (part 2) 27.
²⁹³ The argument that prosecution for acts of violence ‘would not hinder the diplomatic pro-
cess since violence is not part of that process’ confuses the functionality rationale of the rule of
In the context of the Nazi atrocities Glueck argued that head of state immun-
ity ‘is based on international comity and courtesy; and this in turn depends upon
the sovereign in question conducting himself in conformity with international
law as a respectable and trustworthy member of the Family of Nations. By invad-
ing neighboring countries in flagrant violation of treaty obligations and for pur-
poses of aggression, conquest and the mass-extermination of human beings,
a sovereign strips himself of any mantle of immunity he may have claimed by
virtue of international comity. He outlaws himself.’²⁹⁴
This argument denies the international law status of the rule of head of state
immunity. Alternatively it makes the rights (and obligations?) of international
law dependent on qualifications that recall the outdated distinction between civi-
lized nations that are part of the ‘Family of Nations’ and barbaric people that are
not.²⁹⁵ This study does not accept that personal immunity rules can be shoved
aside on this argumentation.
This does not of course mean that no exception to these rules may develop.
This would be a policy decision to be made by states, not a state of the law find-
ing of judicial institutions.²⁹⁶ If states agree that the interests of prosecution of
these crimes outweigh the interests protected by the rules they may decide to
develop an exception for crimes against international law. However, the principle
of irrelevance of official capacity can in itself not be interpreted as a step in that
direction. A closer look at state practice is hence required.
A string of recent judicial decisions confirms that personal immunities from
foreign national jurisdiction also apply in the face of allegations of crimes against
international law. The House of Lords emphasized in Pinochet no 3 that its rea-
soning did not affect the immunity of incumbent heads of state.²⁹⁷ A few weeks
earlier, the Spanish Audiencia Nacional had come to the same conclusion. The
court held that the jurisdiction of the Ley Orgánica del Poder Judicial—the Law
on Judicial Power—could not be exercised in criminal proceedings instigated
against Fidel Castro, in respect of allegations of crimes against international law.
Article 21.2 of that law provides for an exception to jurisdiction whenever rules
of public international law so require. In contrast to a former head of state, a
serving head of state, the court reasoned, is absolutely immune from the criminal
personal immunity with the official character of acts at the basis of functional immunity, cf for this
argument SL Wright, ‘Diplomatic Immunity: A Proposal for Amending the Vienna Convention
to Deter Violent Criminal Acts’ (1987) 5 Boston University International Law Journal 177, 184
and 206; JMT Labuschagne, ‘Diplomatic Immunity as Criminal Defence: An Anthropo-legal
Anachronism?’ (1997) 22 South African Yearbook of International law 32.
²⁹⁴ S Glueck, War Criminals, Their Prosecution & Punishment (1944) 121–32, quotation at 122.
²⁹⁵ Ch 6 § 2.3.2.3 below discusses this further.
²⁹⁶ Cf on policy arguments § 3 below.
²⁹⁷ Pinochet no 3, eg 179 (per Lord Millett) and 181 (per Lord Philips). In 2004 two UK dis-
trict judges refused to issue warrants of arrest on allegations of crimes against international law in
respect of the head of state of Zimbabwe, Mugabe, and the minister of defence of Israel, Mofaz,
because of the personal immunity of these foreign state officials, cf C Warbrick (2004).
jurisdiction of foreign courts.²⁹⁸ In 1999, the German prosecuting authorities

refused to initiate criminal proceedings against Saddam Hussein for serious
human rights violations because the incumbent head of state of Iraq enjoyed per-
sonal immunity from the German criminal jurisdiction. The Oberlandesgericht
Köln confirmed this decision.²⁹⁹ In 2003 the Belgian Court of Cassation ruled
that a claim against the Israeli Prime Minister Sharon was inadmissible because
of the rule of head of state immunity even though the allegations concerned
crimes against international law.³⁰⁰ The United States courts have granted diplo-
matic immunity³⁰¹ and head of state immunity³⁰² in civil proceedings concern-
ing crimes against international law. In France, a criminal complaint filed against
Colonel Ghaddafi, the serving head of state of Libya, did not survive the claim of
head of state immunity. The colonel was accused of complicity in acts of terror-
ism that had resulted in the destruction of a French civil aircraft in which all pas-
sengers were killed. The prosecutor argued that no head of state immunity existed
with regard to this type of crimes against international law. The French Cour de
Cassation disagreed. It held that
[i]nternational custom precludes Heads of State in office from being the subject of pro-
ceedings before the criminal courts of a foreign State, in the absence of specific provisions
to the contrary binding on the parties concerned . . . in the current state of international
law the alleged crime, however serious, did not constitute one of the exceptions to the
principle of the jurisdictional immunity of foreign Heads of State in office . . .³⁰³
In 2005, a Dutch court was asked to order the Dutch state to arrest US president
Bush when he would visit the Netherlands for the official commemoration of the
end of the Second World War.³⁰⁴ Claimants argued that Bush bears ‘command
and aider and abettor liability’ for a large amount of crimes against international
law—inter alia, the killing of civilian population in Iraq and Afghanistan and
the torture of prisoners. The court rejected the claim arguing in relevant part that
the rule of head of state immunity would render such arrest illegal under inter-
national law.³⁰⁵
²⁹⁸ Fidel Castro, no 1999/2723 (Spain, Audiencia Nacional, 1999) § 1–5 Legal Grounds, dis-
cussed in A Cassese (2002) fn 19.
²⁹⁹ Beschl v 16 May 2000 NStZ 667 (Germany, Oberlandesgericht Köln, 2000). Cf Also JMT
Labuschagne, ‘Immunity of the Head of State for Human Rights Violations in International
Criminal Law’ (2001) 26 South African Yearbook of International law 180.
³⁰⁰ Re Sharon and Yaron (Belgium, 2003). Note that the decision was taken after the decision of
the ICJ in the Arrest Warrant case, discussed p 269ff below.
³⁰¹ Aidi v Yaron 672 F Supp 516 (US, DC for the District of Columbia, 1987); Tachiona v
Mugabe and Mudenge (US, 2001); Tachiona v United States (US, 2004).
³⁰² Lafontant v Aristide (US, 1994); Tachiona v Mugabe and Mudenge (US, 2001) (the Second
Circuit Court of Appeals decided on grounds of diplomatic immunity only); Abiola v Abubakar
(US, 2003); Wei Ye v Jiang Zemin (US, 2004).
³⁰³ Gaddafi 125 ILR 490 (France, CA, Court of Cassation, 2000 and 2002) 509.
³⁰⁴ De Haagse Stadspartij e.a. v De Staat der Nederlanden KG 05/432 (The Netherlands,
Rechtbank ‘s-Gravenhage, Voorzieningrechter in Kort Geding, 2005).
³⁰⁵ ibid § 3.6–3.7.
The position that personal immunity does not yield to the jurisdiction of
national courts over crimes against international law is widely shared in doc-
trine³⁰⁶ and has been confirmed by the International Court of Justice in the 2002
Arrest Warrant Case (The Democratic Republic of the Congo (DRC) v Belgium).³⁰⁷
The distant cause for the dispute between the DRC and Belgium can be seen to
lie in the Statute of the International Criminal Court. In 1999 Belgium adapted
its war crimes legislation to the standards set in the ICC Statute. In a remarkable
contrast with the Nuremberg Charter and all the formulations of the principle of
irrelevance of official capacity that followed the Charter, article 27 of the Statute
provides:
1. This Statute shall apply equally to all persons without any distinction based on official
capacity. In particular, official capacity as a Head of State or Government, a mem-
ber of a Government or parliament, an elected representative or a government official
shall in no case exempt a person from criminal responsibility under this Statute, nor
shall it, in and of itself, constitute a ground for reduction of sentence.
2. Immunities or special procedural rules which may attach to the official capacity of a person,
whether under national or international law, shall not bar the Court from exercising its
jurisdiction over such a person.³⁰⁸
Consequently, in 1999 Belgium decided to change its legislation to conform to
the ICC standard. Article 5.2 of the 1993 Belgian war crimes legislation provided
that
Le fait que l’accusé a agi sur l’ordre de son gouvernement ou d’un supérieur hiérarchique
ne dégage pas sa responsabilité, si, dans les circonstances existantes, l’ordre pouvait mani-
festement entraîner la perpétration d’une infraction grave aux Conventions de Genève du
12 août 1949 et à leur premier protocole additionnel du 8 juin 1977.³⁰⁹
The 1999 legislation added a third paragraph to article 5:
L’immunité attachée à la qualité officielle d’une personne n’empêche pas l’application de
la présente loi.³¹⁰
³⁰⁶ Cf eg A Cassese, International Criminal Law (2003) 271–3; H Fox (2002) 430–3;
J Verhoeven, (Rapporteur Institut de Droit International), Les immunités de juridiction et
(2000–01) 69 AIDI 482, 517–18; The Princeton Project on Universal Jurisdiction, Princeton
Principles on Universal Jurisdiction (2001), available at <http://www.princeton.edu/~lapa/unive_
jur.pdf>, Commentary on Principle 5; B. Conforti (2002) 231.
³⁰⁷ Arrest Warrant Case.
³⁰⁸ Art 29 Rome Statute of the ICC (emphasis added).
³⁰⁹ Loi du 16 juin 1993 relative à la répression des infractions graves aux Conventions inter-
nationales de Genève du 12 août 1949 et aux Protocoles I et II du 8 juin 1977, Moniteur Belge,
5 August 1993.
³¹⁰ In translation: ‘The immunity attributed to the official capacity of a person, does not pre-
vent the application of the present Act.’ Loi de 1993 telle que modifiée par la loi du 10 février 1999
relative à la répression des violations graves du droit international humanitaire Art 5 para. 3, Loi
relative à la répression des infractions graves de droit international humanitaire, 10 February 1999,
Moniteur Belge, 23 March 1999, reproduced in (1999) 38 ILM 918, 924 (§ 2 was rephrased in
The new legislation hence did not recognize any immunity—nor substantive,
nor procedural—in respect of allegations of crimes against international law. On
the basis of this law, Belgium instigated several criminal investigations into the
acts of foreign state officials whose position would arguably normally give rise to
immunity ratione personae from the Belgian jurisdiction, like the Israeli Prime
Minister Ariel Sharon and the Cuban leader Fidel Castro.³¹¹
In response to the issuance and circulation of an international arrest warrant
by Belgium for the Congolese minister of foreign affairs Yerodia, the DRC filed
an application with the International Court of Justice complaining that Belgium
had violated its rights by not respecting the immunity ratione personae of its min-
ister of foreign affairs.³¹² Belgium relied on the principle of irrelevance of official
capacity as found in the Nuremberg Charter and the ICC Statute and argued that
accordingly ‘immunities accorded to incumbent Ministers for Foreign Affairs
can in no case protect them where they are suspected of having committed war
crimes or crimes against humanity’.³¹³
The Court found for the applicant. It held the immunity from criminal
jurisdiction of ministers of foreign affairs ratione personae to be absolute.³¹⁴ In
particular, it pointed out that it had
carefully examined State practice, including national legislation and those few decisions
of national higher courts, such as the House of Lords or the French Court of Cassation.
It has been unable to deduce from this practice that there exists under customary inter-
national law any form of exception to the rule according immunity from criminal jur-
isdiction and inviolability to incumbent Ministers for Foreign Affairs, where they are
suspected of having committed war crimes or crimes against humanity.
The Court has also examined the rules concerning the immunity or criminal respon-
sibility of persons having an official capacity contained in the legal instruments creating
international criminal tribunals, and which are specifically applicable to the latter [refers
to article 7 Nuremberg Charter and progeny]. It finds that these rules likewise do not
enable it to conclude that any such exception exists in customary international law in
regard to national courts.
Finally, none of the decisions of the Nuremberg and Tokyo international tribunals, or
of the International Criminal Tribunal for the Former Yugoslavia, cited by Belgium deal
with the question of the immunities of incumbent Ministers for Foreign Affairs before
national courts. The Court accordingly notes that those decisions are in no way at vari-
ance with the findings it has reached above.³¹⁵
similar terms but with the additional reference to the crime of genocide and crimes against human-
ity as defined in the 1999 Act). Cf also Belgium, Juge d’instruction VanderMeersch, Ordonnance
du 6 novembre 1998, 308.
³¹¹ Cf also SR Ratner, ‘Belgium’s War Crimes Statute: A Postmortem’ (2003) 97 AJIL 888.
³¹² Arrest Warrant Case.
³¹³ ibid 23, § 56.
³¹⁴ It is recalled that this study disagrees with the Court’s position that the immunity of
ministers of foreign affairs is the same as that of heads of state, see ch 4 § 2.2.2.3 of this study for a
critique on the Court’s reasoning on the scope of the rule.
³¹⁵ Arrest Warrant Case, 24, § 58.
Accordingly, the Court concluded that issuance and circulation of the arrest war-
rant had violated the rights of the DRC under international law.³¹⁶
It was argued earlier that in the quoted paragraph the Court set out to distin-
guish between procedural and functional immunity rules. This was explicated
in one of the following paragraphs in which the Court stated that ‘[i]mmunity
from criminal jurisdiction and individual criminal responsibility are quite sep-
arate concepts. While jurisdictional immunity is procedural in nature, criminal
responsibility is a question of substantive law.’³¹⁷ In this reading of the judgment
the Court hence did recognize the customary international law status of the prin-
ciple of irrelevance of official capacity but did not regard this principle to affect
rules of personal immunity.
Judge Van den Wyngaert rejected the view that the said ‘immunity clauses’
only regarded the substantive but not the procedural immunity of state officials:
At the heart of [the principle of irrelevance of official capacity] is the debate about indi-
vidual versus State responsibility, not the discussion about the procedural or substantive
nature of the protection for government officials. This can only mean that, where inter-
national crimes such as war crimes and crimes against humanity are concerned, immun-
ity cannot block investigations or prosecutions to such crimes, regardless of whether such
proceedings are brought before national or before international courts.
...
In adopting the view that the non-impunity clauses in the relevant international instru-
ments only address substantive, not procedural immunities, the International Court of
Justice has adopted a purely doctrinal proposition, which is not based on customary or
conventional international law or on national practice and which is not supported by a
substantial part of legal doctrine.³¹⁸
According to Judge Van den Wyngaert ‘most authorities do not mention the dis-
tinction at all and even reject it.’³¹⁹ However, she only refers to the ILC commen-
tary to article 7 to support this assertion. As explained earlier, the distinction
between substantive and procedural immunities is far more than ‘a doctrinal
proposition’. In fact, it is the proposition that official capacity is not only irrele-
vant for the responsibility of an official but also for the jurisdiction of the court
that requires support from state practice for it to attain the status of more than a
doctrinal proposition.
It is interesting to note that in fact Judge Van den Wyngaert did not argue that
the principle curtailed the personal immunity of defendants directly. Rather, she
³¹⁶ ibid 29–30, § 71. Cf ch 4 § 2.3 above for a critical discussion of the question whether the
international circulation violated the immunity the minister enjoyed in other countries.
³¹⁷ ibid 25, § 60.
³¹⁸ Arrest Warrant Case, Dissenting Opinion Judge Van den Wyngaert, 158 and 159, § 31 and
§ 33. Cf also the dissent of Judge Al-Khasawneh, 97, § 5. The dissent of Judge Al-Khasawneh did
not rely on the scope of the rule of personal immunity but on the invalidiation of that rule by jus
cogens and was accordingly discussed in § 2.2 above.
³¹⁹ ibid 158, § 30.
seemed to argue that the interests in preventing impunity outweigh the interests
protected by rule of personal immunity. With all respect, this author believes that
that reasoning confuses a policy argument for a state of the law argument. As the
elaboration on this issue in the Separate Opinion of Judges Higgins, Kooijmans
and Buergenthal evinces, the interests in the prosecution of war criminals are
balanced against the interests protected by personal immunity; this balancing
act is however not relevant for a court determining the scope of the rule of per-
sonal immunity but is part of the policy decision to be taken by states as to what
the scope of that rule should be. The judges observed that while for now ‘[t]he
law of privileges and immunities . . . retains its importance since immunities are
granted to high State officials to guarantee the proper functioning of the network
of mutual inter-State relations, which is of paramount importance for a well-
ordered and harmonious international system’, but suggested that ‘the weights
on the two scales are not set for all perpetuity’.³²⁰ As said earlier, however, judges
can only establish a changing balance through the inductive approach. While
the law may of course develop through judicial interpretation—judicial decisions
are never value-free in that respect—judges cannot engage in the balancing act
themselves in defiance of clear state practice. Their decision should reflect what
the law is, not what the law should be.
In response to the decision of the Court Belgium again changed its war crimes
legislation. The third paragraph of article 5 came to read as follows:
L’immunité attachée à la qualité officielle d’une personne n’empêche l’application de la
présente loi que dans les limites établies par le droit international.³²¹
When a few months later the war crimes law was incorporated in the general
Belgian penal code and code of penal procedure article 5 was split up and formu-
lated in less uncertain terms.³²² The second paragraph of article 5 is now part of
the penal code.³²³ While article 1bis of the code of penal procedure reads:
§ 1. Conformément au droit international, les poursuites sont exclues à l’égard:
— des chefs d’Etat, chefs de gouvernement et ministres des Affaires étrangères
étrangers, pendant la période où ils exercent leur fonction, ainsi que des autres
personnes dont l’immunité est reconnue par le droit international;
³²⁰ Arrest Warrant Case, Joint Separate Opinion of Judges Higgins, Kooijmans, and
Buergenthal, 85, § 75. Cf in general 84–5, § 70–5 and § 3 of this chapter below.
³²¹ In translation: ‘International immunity derived from a person’s official capacity does not
prevent the application of the present law except under those limits established under international
law.’ ‘Loi de 1993 telle que modifiée par la loi du 23 avril 2003 relative à la répression des violations
graves du droit international humanitaire et l’art 144 ter du Code judiciaire, reproduced in (2003)
42 ILM 749, 755. Criminal actions that had already been instigated were after the decision of the
ICJ declared inadmissible. Cf eg Re Sharon and Yaron (Belgium, 2003).
³²² Loi du 5 août 2003 relative à la répression des infractions graves au droit international
humanitaire, reproduced in (2003) 42 ILM 1258.
³²³ ibid art 12 at 1265–66 adding art 136octies.2 to the Code Pénal.
— des personnes qui disposent d’une immunité, totale ou partielle, fondée sur un
traité qui lie la Belgique.
§ 2. Conformément au droit international, nul acte de contrainte relatif à l’exercice
de l’action publique ne peut être posé pendant la durée de leur séjour, à l’encontre
de toute personne ayant été officiellement invitée à séjourner sur le territoire du
Royaume par les autorités belges ou par une organisation internationale établie en
Belgique et avec laquelle la Belgique a conclu un accord de siège.³²⁴
Today only one state claims the right to subject foreign heads of state to its jurisdic-
tion. While the United States recognizes the doctrine of head of state immunity
they do not recognize that international law imposes limitations on the jurisdic-
tion of the United States in this regard. As with the rule of state immunity the US
asserts that ‘head of state immunity is a matter of grace and comity, rather than a
matter of right’.³²⁵ After the AEDPA introduced a terrorist-state exception to the
FSIA and the so-called ‘Flatow Amendment’ to that exception was accepted the
United States courts decided that they could very well withhold that grace and
comity from the heads of state of states designated state sponsor of terrorism.³²⁶
In Flatow v Islamic Republic of Iran the court reasoned as follows:
The Flatow Amendment overrides the common law doctrine of head of state immunity, as
it expressly provides for the application of 28 U.S.C. §1605(a)(7)’s exception to immunity
to ‘[a]n official, employee, or agent of a foreign state . . . acting within the scope of his or
her office, employment, or agency.’ This provision was directed at those individuals who
facilitate terrorist acts which cause the injury or death of American citizens. The provi-
sion does not qualify or in any way limit its application only to non-heads of state. Given
that state sponsorship of terrorism is a decision made at the highest levels of government,
unless the Flatow Amendment is interpreted as abrogating head of state immunity under
the limited circumstances of 28 U.S.C. §1605(a)(7), the provisions cannot give full effect
to Congressional intent, and the federal cause of action created by the two amendments
would be irreparably and unreasonably hobbled. This Court therefore concludes that
³²⁴ In translation:
‘1. In accordance with international law there shall be no prosecution with regard to:
—Heads of State, heads of government, and foreign ministers of foreign affairs, during their
term of office, and any other person whose immunity is recognized by international law.
—Persons who have immunity, full or partial, based on a treaty by which Belgium is bound.
2. In accordance with international law, no act of coercion involving the bringing of criminal pro-
ceedings may be initiated during the time of their stay, against any person officially invited to
stay in the territory of the Kingdom by the Belgian authorities or by an international organiza-
tion established in Belgian [sic] and with which Belgium has concluded a headquarters agree-
ment.’ Ibid art 13 art 13 at p 1265 adding art 1bis to the Code de Procédure Pénale. Cf also
art 16 of the Dutch Wet van 19 juni 2003 houdende regels met betrekking tot ernstige schend-
ingen van het internationaal humanitair recht (‘Wet Internationale Misdrijven’), Staatsblad
2003, nr 270.
³²⁵ Lafontant v Aristide (US, 1994), citing Hilton v Guyot 159 US 113 (US, S Ct, 1895) 163–4.
³²⁶ For Flatow Amendment cf p 251–252 above, for the exception in general ch 6, p 354–7
below.
the defense of head of state immunity is not available in actions brought pursuant to 28
U.S.C. §1605(a)(7) and 28 U.S.C.A. §1605 note.³²⁷
A 2003 decision of the district court for the Southern District of New York has
given an interesting twitch to the discussion. The case of Smith and Soulas v The
Islamic Emirate of Afghanistan and Iraq concerned a tort claim of relatives of
two victims of the terrorist attack on the World Trade Centre in New York on
11 September 2001 against, inter alia, the then head of state of Iraq Saddam
Hussein.³²⁸ The court recalled that one of the requirements of the Flatow
Amendment is that ‘[n]o action shall be maintained under this action if an offi-
cial, employee, or agent of the United States, while acting within the scope of his
or her office, employment, or agency would not be liable for such acts if carried
out within the United States.’ It concluded that since ‘a claim against a U.S. presi-
dent for the conduct identical to that alleged against Saddam Hussein would be
barred because of the president’s absolute immunity from damages for conduct
associated with the exercise of his official duties . . . the plaintiffs cannot satisfy
this element as against Saddam Hussein and so the claim against him must be
dismissed.’³²⁹
This is of course only a stopgap for the fundamentally problematic nature
of the FSIA terrorist-state exception. Head of state immunity is a rule of inter-
national law that imposes obligations on all states in respect of the heads of state
of all other states. The US approach is comparable to that of Glueck introduced
earlier in this section. The unilateral tampering with the rule to suit US foreign
policy goals violates international law and is unacceptable.
In chapter 4 of this study it was explained that courts and scholars disagree on
the scope of head of state immunity from civil jurisdiction. In conclusion it must
be noted that this uncertain scope triggers discussion on the question whether
foreign heads of state may be sued for damages on allegations of crimes against
international law. Of course, the diplomatic immunity protecting foreign state
officials on diplomatic missions shields foreign heads of state from enforcement
measures or service of process while abroad on an official visit. However, such
enforcement measures are not always necessary to instigate civil proceedings, and
heads of state may moreover travel abroad on private visits as well. It is recalled
that this author opines that immunity from civil jurisdiction should at least be
available in respect of all acts related to the exercise of the functions of head of
state. Were immunity to be limited to ‘official acts’ that qualify under the func-
tional immunity rule the exercise of the function of head of state could become
seriously impeded by civil actions related to allegations of crimes against inter-
national law.
³²⁷ Flatow v Islamic Republic of Iran 999 (US, 1998).

³²⁸ Smith and Soulas v The Islamic Emirate of Afghanistan and Iraq 262 F Supp 2d 217 (US, DC
for the Southern District of New York, 2003).
³²⁹ ibid referring to Nixon v Fitzgerald 457 US 731 (US, S Ct, 1982) 749.
2.3.2.2 A critical intermezzo: Personal immunities
before international courts
At this point an intriguing question presents itself. If national courts cannot exer-
cise jurisdiction over state officials protected by personal immunity, why would this be
any diff erent for international courts? Recent judicial and academic thinking on
the question tends to distinguish national courts from international courts: while
personal immunities continue to apply unabatedly in national courts, it is argued
that they do not prevent the exercise of jurisdiction by international courts. This
author begs to disagree.
The jurisdiction of international courts over diplomatic agents is indeed evi-
dent. Diplomatic agents only enjoy personal immunity from the jurisdiction
of the state to which they are accredited or through which they transit. Other
states can freely exercise their adjudicative jurisdiction over these agents, so can
international courts.³³⁰ Head of state immunity, however, applies erga omnes and
independent of the presence of the head of state on foreign territory.³³¹ It is there-
fore not immediately clear how that immunity can be circumvented by the deci-
sion of a group of states to establish an international court if the home state is not
bound by that agreement. In fact, close examination of the issue will prove that the
jurisdiction of international courts over heads of state is not unqualified. In add-
ition, a second issue troubles the prosecution of individuals clothed with personal
immunity, whether applicable erga omnes or not. An international court that can-
not exercise jurisdiction in absentia must always rely on the arrest and surrender
of suspects by states. In this respect, personal immunity shields heads of state and
diplomatic agents representing states not bound by the statute of an international
court from the jurisdiction of international courts in practice.
The two issues will be discussed here in turn. Subsequently, the decision of the
SCSL in Prosecutor v Taylor will be discussed on the basis of the legal framework
set out.³³² The central question in that case was whether the issuance and circu-
lation of an arrest warrant for an incumbent head of state by the Special Court
violated the rule of head of state immunity. Without much ado the question was
shoved aside. We will see, however, that it is highly questionable whether inter-
national law allowed the SCSL to issue and circulate the warrant for the arrest of
the incumbent head of state of Liberia.
Let us start with the first issue—that of the jurisdiction of international courts
over individuals clothed with personal immunity from foreign national juris-
diction. It may be clear that a reliance on the principle of irrelevance of official
³³⁰ On the assumption of course that the jurisdiction of the court over the diplomatic agent
is not only based on the jurisdiction from the receiving state. Moreover, the jurisdiction of the
international court to request arrest and surrender are limited, cf p 281 below. Cf also the Oshima
Case decided by the Tokyo Tribunal, in BVA Röling and CF Rüter (eds), The Tokyo Judgment, The
International Military Tribunal for the Far East, 29 April 1946–12 November 1949 (1977) 456.
³³¹ It is noted that in the Arrest Warrant case the ICJ held this erga omnes personal immunity
also to apply to ministers of foreign affairs. This study disagrees. Cf ch 4 § 2.2.2.3 above.
³³² Prosecutor v Charles Ghankay Taylor (SCSL, 2004).
capacity as included in the instruments establishing international tribunals is

not coherent as that principle does not regard procedural immunities.³³³ Most
scholars therefore attempt to establish that personal immunities do not apply to
international courts as of principle. Gaeta argued in this respect that
[s]trictly speaking, under international law individuals are only entitled to enjoy personal
immunities vis-à-vis the authorities of the State where they are authorized to discharge
official functions (the ‘receiving or territorial State’). Clearly, these immunities cannot
be relied upon before the ICC, hence they cannot preclude the exercise of the Court’s
jurisdiction.³³⁴
This argument does not however extend to head of state immunity which applies
erga omnes. A more popular argument asserts that the par in parem rationale that
underlies personal immunities clearly only applies between states.³³⁵ Whatever
the exact reasoning, the fact is that commentators—and judges as we will see
at the discussion of the case of Prosecutor v Taylor below—eagerly parrot the
proposition.
However, as one perceptive commentator recently noted ‘[t]he view that inter-
national law immunities may never be pleaded in proceedings instituted before
international courts and tribunals oversimplifies the matter.’³³⁶ Since until the
ICC Statute there was no state practice on the issue, a coherent proposition on the
scope of the rule must reason within the parameters of rules and principles of inter-
national law. The argument that personal immunity does not apply before inter-
national courts because the par in parem rationale does not apply to international
courts reasons in a circle.³³⁷ The fundamental question that requires a clear
³³³ Cf for such reliance eg C Wickremasinghe (2003) 407; B Stern (2003) 73, 86; C Ragni,
‘Immunity of Heads of State: Some Critical Remarks on the Decision of the Special Court for
Sierra Leone in the Charles Taylor Case’ (2004) 14 Italian Yearbook of International Law 273, 281;
T Stein, ‘Limits of International Law Immunities for Senior State Officials in Criminal Procedure’,
in C Tomuschat and J-M Thouvenin (eds), The Fundamental Rules of the International Legal Order,
Jus Cogens and Obliogations Erga Omnes (2006) 249, 251ff.
³³⁴ P Gaeta (2002) 991. Cf also eg J Verhoeven, (Rapporteur Institut de Droit International),
Les immunités de juridiction et d’exécution du chef d’Etat et de gouvernement en droit international,
Rapport provisoire (2000), 69 AIDI (2000–01) 482, 518.
³³⁵ Cf eg P Gaeta (2003) 194; S Meisenberg, ‘Die Anklage under der Haftbefehl gegen
Charles Ghankay Taylor durch den Sondergerichtshof für Sierra Leone’ (2004) 17 Humanitäres
Völkerrecht 30, 38; B Stern (2003) 73, 75 and 85–6; R Jennings, ‘The Pinochet Extradition
Case in the English Courts’ in L Boisson de Chazournes and V Gowlland-Debbas (eds), The
International Legal System in Quest of Equity and Universality: Liber Amicorum Georges Abi-Saab
(2001) 677, 692 Cf also without explanation C Dominicé (1999) 307. It is furthermore noted that
the Commentary to Principle 5 of the Princeton Principles of Universal Jurisdiction (2001)—while
recognizing that the principle of irrelevance of official capacity regards substantive immunities and
applies to national and international courts alike—also explicitly states that personal immunities
continue to apply ‘to proceedings before national tribunals’ (emphasis added), available at <http://
www.princeton.edu/~lapa/unive_jur.pdf>. Cf for early support for the argument Q Wright, ‘War
Criminals’ (1945) 39 AJIL 257, 269.
³³⁶ D Akande (2004) 416.
³³⁷ Moreover, if we take the personal immunity of a head of state to have a ‘functional necessity’
rationale—as the ICJ did in the Arrest Warrant case—the argument can be made that ‘proceedings
answer in a coherent proposition is why states would be able to do together what
they cannot do individually. The statement that two states cannot circumvent the
right to immunity of a third state by establishing an international criminal court
is uncontroversial. But if two states cannot do so, why would sixty?³³⁸
The principle that a treaty cannot abrogate the rights of states not bound by it is
central to our investigation.³³⁹ States cannot establish a court with judicial powers
over third states or their officials that would violate international law had these
states acted individually. Accordingly, international courts may only have juris-
diction over state officials normally protected by an immunity ratione personae
applying erga omnes if the court has the power to bind the state they represent.
Hence, the US delegates to the Commission established by the Allied Powers
after the First World War to study the possibility of prosecution and punish-
ment of war criminals were right to oppose the conclusion of the Commission
that ‘[a]ll persons belonging to enemy countries, however high their position may
have been, without distinction of rank, including Chiefs of States, who have been
guilty of offences against the laws and customs of war or the laws of humanity,
are liable to criminal prosecution.’³⁴⁰
The ICTY and the ICTR derive their power to bind states from their establish-
ment by a Security Council Resolution under Chapter VII of the UN Charter.³⁴¹
While pursuant to articles 24 and 25 of the UN Charter action of the Security
Council binds UN member states irrespective of whether it concerns pacific settle-
ment of disputes under Chapter VI or action with respect to threats to the peace,
breaches of the peace and acts of aggression under Chapter VII, the Security
Council can only dispose of the sovereign rights of UN member states when act-
ing under Chapter VII of the Charter.³⁴² The establishment of an international
before both national and international criminal courts may hamper the discharge of official functions
and endanger the smooth conduct of international relations’, M Frulli, ‘The Question of Charles
Taylor’s Immunity, Still in Search of a Balanced Application of Personal Immunities?’ (2004) 2 JICJ
1118, 1128.
³³⁸ Cf D Akande (2004) 417. Cf also MA Tunks, ‘Diplomats or Defendants? Defining the
Future of Head of State Immunity’ (2002) 52 Duke Law Journal 651, 665 fn 75: ‘no other coun-
try has jurisdiction over a third party’s head of state, and consequently, no two states (or group of
states) may agree by treaty to waive the immunity of a third party’s head of state without that other
nation’s consent’.
³³⁹ Cf the words of Judge Huber quoted at n 288 above.
³⁴⁰ Cf p 206 above.
³⁴¹ SC Resolution 808 (1993); SC Resolution 955 (1994) respectively.
³⁴² Art 24.1 of the UN Charter reads: ‘In order to ensure prompt and effective action by the
United Nations, its Members confer on the Security Council primary responsibility for the main-
tenance of international peace and security, and agree that in carrying out its duties under this
responsibility the Security Council acts on their behalf ’. And art 25 UN Charter reads: ‘The
Members of the United Nations agree to accept and carry out the decisions of the Security Council
in accordance with the present Charter’. Art 2.7 of the Charter provides: ‘Nothing contained in
the present Charter shall authorize the United Nations to intervene in matters which are essentially
within the domestic jurisdiction of any state or shall require the Members to submit such matters
to settlement under the present Charter; but this principle shall not prejudice the application of
enforcement measures under Chapter Vll’. Cf Z Deen-Racsmány, ‘Prosecutor v Taylor, The Status
court with jurisdiction over state officials irrespective of personal immunities by

Security Council Resolution hence requires the Chapter VII signature.
Notably, the Security Council can of course always decide to oblige states to
accept the jurisdiction of an international court over individuals clothed with
personal immunity subsequent to the court’s establishment in a separate resolution
adopted under Chapter VII.³⁴³ Article 13 sub b of the ICC Statute is notable
in this respect. The article provides that the Court may exercise jurisdiction if
‘[a] situation in which one or more of such crimes appears to have been committed
is referred to the Prosecutor by the Security Council acting under Chapter VII
of the Charter of the United Nations.’ If the Security Council decides to refer
a situation to the Court it may also decide that personal immunities of offi-
cials of UN member states are no impediment for the exercise of the Court’s
jurisdiction.
States can of course consent to the exercise of jurisdiction over their officials
by an international court. This is the principle behind the jurisdiction of the
International Criminal Court—which is a treaty-based organization.
At the time of writing the ICC Statute binds a hundred or so states.³⁴⁴ The
Statute must hence be careful not to violate the rights of about the same number
of states that have not consented to the jurisdiction of the Court. Article 27.2 falls
short in this respect. The article provides that
[i]mmunities or special procedural rules which may attach to the official capacity of a per-
son, whether under national or international law, shall not bar the Court from exercising
its jurisdiction over such a person.
In other words, personal immunities are declared a priori inapplicable before the
ICC. Article 98 of the Statute—discussed below—only impedes the prosecution
of officials of non party states clothed with personal immunity in practice—not
in theory. If the Court were to have jurisdiction to prosecute in absentia there
would—from the perspective of the Statute—be no impediment to the exercise
of jurisdiction over a head of state of a non party state suspected of having com-
mitted crimes within the jurisdiction of the court on the territory of a state party
to the Statute. Akande noted in this respect:
[W]hile Article 27 provides that a state official’s possession of international immunity
shall not bar the ICC from exercising jurisdiction, Article 98 directs the Court not to
take action that would result in the violation by states of their international obligations to
accord immunity to foreign officials.³⁴⁵
of the Special Court of Sierra Leone and its Implications for Immunity’ (2005) 18 LJIL 299, 307ff
for a more elaborate discussion of this issue.
³⁴³ Cf also the text at n 323 and 324 above.
³⁴⁴ In December 2007 105 states had ratified the Statute. Cf <http://www.icc-cpi.int/asp/
statesparties.html>.
³⁴⁵ D Akande (2004) 420.
In less objective but broadly similar terms Triff terer put it as follows:
[A] failure to proceed successfully according to Article 98 may in practice and contrary to
the wording of Article 27, ‘bar the Court from exercising its jurisdiction over such a per-
son’, if the Court cannot secure the attendance of the person in any other way because the
Rome Statute does not provide a trial in absentia.³⁴⁶
This is in fact the only correct interpretation of the Statute. Arguing that because
of article 98, article 27.2 is limited to nationals of state parties would be trying
to fit a square peg in a round hole. Accordingly, article 27.2 violates international
law in that it negates the personal immunity from the jurisdiction of the ICC of
officials of non party states.
The discussion throws an interesting light over an obiter dictum of the
International Court of Justice in the Arrest Warrant case. The Court held that
an incumbent . . . Minister for Foreign Affairs may be subject to criminal proceedings
before certain international courts . . . Examples include the International Criminal
Tribunal for the Former Yugoslavia, and the International Criminal Tribunal for
Rwanda, established pursuant to Security Council resolutions under Chapter VII of the
United Nations Charter, and the future International Criminal Court created by the
1998 Rome Convention. The latter’s Statute expressly provides, in Article 27, paragraph 2,
that ‘[i]mmunities or special procedural rules which may attach to the official capacity
of a person, whether under national or international law, shall not bar the Court from
exercising its jurisdiction over such a person.³⁴⁷
Notably, the Court limited its observation to certain international criminal
courts. It emphasized the juridical basis of the ICTY and ICTR that makes estab-
lishment of jurisdiction over persons clothed with personal immunity possible.
The scope of the statement as regards the ICC is however controversial. Surely the
Court did not mean to say that the ICC can establish jurisdiction over all incum-
bent heads of state because article 27.2 says so? Arguably the ICJ only meant to
emphasize the possibility of conventional waiver of personal immunity. A benign
interpretation of the statement allows the assertion that the ICJ recognized that
article 27.2 only has consequences for ICC party states. We will see later that this
somewhat ambiguous obiter statement is at the basis of some very definite asser-
tions as to the non-applicability of personal immunity before all international
courts. This study rejects that interpretation. If the obiter in the Arrest Warrant
case stands for something it is for the proposition that personal immunity is not a
priori inapplicable before international courts.
Even if the argument that personal immunities do not apply before inter-
national tribunals were to be accepted, there is the additional issue of the personal
³⁴⁶ O Triff terer, ‘Irrelevance of Official Capacity: Article 27’ in O Triff terer (ed), Commentary
on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (1999)
501, 513 (emphasis added).
³⁴⁷ Arrest Warrant Case, 25–6, § 61 (emphasis added).
immunity from arrest and surrender by national jurisdictions. For the arrest of
suspects, as well as all other acts within the exclusive territorial competences of
a state, international criminal courts depend heavily on the cooperation and
assistance of states. In this respect, Cassese’s metaphor for the ICTY—which he
described as ‘a giant without arms and legs [that] needs artificial limbs to walk
and work’³⁴⁸—is equally apposite to the ICC.
Because of their Chapter VII-based powers, the ICTY and the ICTR can
oblige all UN member states to cooperate, in particular by executing arrest war-
rants. As the Secretary-General of the UN put it in respect of the ICTY:
[A]n order by a Trial Chamber for the surrender or transfer of persons to the custody of
the International Tribunal shall be considered to be the application of an enforcement
measure under Chapter VII of the Charter of the United Nations.³⁴⁹
Pursuant to article 103 UN Charter the duty to cooperate applies irrespective of
interstate obligations under personal immunity rules.³⁵⁰
A treaty-based organization like the ICC however can not affect the rights
and obligations of non party states. Of course, the Security Council can always
decide to oblige states to arrest and surrender individuals clothed with personal
immunity to the jurisdiction of an international court in a resolution adopted
under Chapter VII of the UN Charter, for example when it would refer a situ-
ation to the Prosecutor under article 13 sub b of the ICC Statute.³⁵¹
The treaty-based jurisdiction of the ICC means in the first place that the
ICC Statute cannot oblige non party states to cooperate with the court. Part 9 of
the Statute—regulating the cooperation and assistance of states—does indeed
make clear that only states parties can be obliged to cooperate with the Court.
Article 86 provides that ‘States Parties shall, in accordance with the provisions of
this Statute, cooperate fully with the Court in its investigation and prosecution
of crimes within the jurisdiction of the Court.’ Article 87.1 sub a provides that
‘[t]he Court shall have the authority to make requests to States Parties for cooper-
ation.’ In particular, article 89.1 provides that ‘[t]he Court may transmit a request
for the arrest and surrender of a person . . . to any State on the territory of which
³⁴⁸ A Cassese, ‘On the Current Trend towards Criminal Prosecution and Punishment of
Breaches of International Humanitarian Law’ (1998) 9 EJIL 1, 13.
³⁴⁹ Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution
808 (1993), UN Doc S/25704 (1993) reprinted in (1993) 14 HRLJ 201, § 125–6.
³⁵⁰ Art 103 UN Charter reads as follows: ‘In the event of a conflict between the obligations
of the Members of the United Nations under the present Charter and their obligations under
any other international agreement, their obligations under the present Charter shall prevail’. Cf
A Ciampi, ‘The Obligation to Cooperate’ in A Cassese, P Gaeta and JRWD Jones (eds), The Rome
Statute of the International Criminal Court (2002) 1607, 1631; B Swart, ‘Arrest and Surrender’ in
A Cassese, P Gaeta and JRWD Jones (eds), The Rome Statute of the International Criminal Court
(2002) 1639, 1680–81; P Gaeta (2002) 989.
³⁵¹ Cf S Villalpando and L Condorelli, ‘Can the Security Council Extend the ICC’s Jurisdiction?’
in A Cassese, P Gaeta and JRWD Jones (eds), The Rome Statute of the International Criminal Court
(2002) 571. Cf also A Ciampi (2002) 1611–12; B Swart (2002) 1677 (on art 13).
that person may be found and shall request the cooperation of that State in the
arrest and surrender of such a person. States Parties shall, in accordance with the
provisions of this Part and the procedure under their national law, comply with
requests for arrest and surrender.’ This obligation is explicated in article 59.1 that
provides that ‘[a] State Party which has received a request for provisional arrest
or for arrest and surrender shall immediately take steps to arrest the person in
question in accordance with its laws and the provisions of Part 9.’ As regards
non party states article 87.5 sub a provides: ‘The Court may invite any State not
party to this Statute to provide assistance under this Part on the basis of an ad hoc
arrangement, an agreement with such State or any other appropriate basis.’
However, the obligations of states parties to the Statute may also not violate the
rights of non party states. Since the Court also purports to exercise its jurisdiction
over nationals of non party states and article 27.2 provides that there exist no
immunities from the jurisdiction of the Court, the personal immunity of officials
of non party states from the jurisdiction to arrest and surrender of states party
needed to be secured in the Statute. Article 98.1 therefore provides that
[t]he Court may not proceed with a request for surrender or assistance which would
require the requested State to act inconsistently with its obligations under international
law with respect to the State or diplomatic immunity of a person or property of a third
State, unless the Court can first obtain the cooperation of that third State for the waiver
of the immunity.³⁵²
In other words, the ICC cannot oblige a state party to cooperate when that state
party would have to violate the personal immunity of a national of a non party
state to comply.³⁵³
It should be realized that article 98 should not only secure the obligations of
state parties to non state parties, it should secure the obligations of the Court itself
towards non state parties. Akande supported this assertion with the following
argument:
since the ICC operates in effect by ‘delegation’ from (or in the place of) its states parties,
the immunity of officials of nonparties applies not only in relation to states parties, but
³⁵² Cf also Rule 195 of the Rules of Procedure and Evidence, ICC-ASP/1/3. There has been
some debate on whether the provision secures the personal immunity of nationals of all states or of
nationals of non-party states only. The arguments for the latter interpretation are forceful. In par-
ticular, states party to the Statute have lost the right to prevent surrender of their nationals to the
Court on the basis of an immunity rule that runs counter to art 27.2 of the Statute and in fact to
the aim of state parties—as stated in the preamble—to put an end to impunity and to ensure that
the most serious crimes do not go unpunished Preamble § 4 and 5. Cf for a comprehensive discus-
sion of arguments: P Gaeta (2002) 993–6; S Wirth (2002) 452–4; D Akande (2004) 421–30.
³⁵³ It is notable in this respect that the implementation legislation of certain party states seems
to disregard this. The Canadian ‘Crimes against Humanity and War Crimes Act 2000’ inserts the
following § 6 into chapter 18 of the Extradition Act 1999: ‘no person who is the subject of a request
for surrender by the International Criminal Court . . . may claim immunity under common law
or by statute from arrest or extradition under this Act’ (chapter 24 § 48 War Crimes Act). Cf also
New Zealand, International Crimes and International Criminal Court Act 2000 no 26, § 31.1. Cf
for an example of correct implementation UK, International Criminal Court Act 2001 section 23.1.
also in relation to the ICC itself. Thus, the Court itself is prevented by international law
from taking steps that would amount to a violation of those immunities.³⁵⁴
A more direct argument would be that as an international organization the court
is obliged to respect the rules of international law.³⁵⁵ In any event, the Court
itself violates the rights of non party states under personal immunity rules when
it requests a party state to arrest and surrender a national of a non party state pro-
tected under these rules. The Statute must hence be careful not to grant powers to the
Court that may violate the rights of non party states.
Are the rights of non party states under personal immunity rules adequately
secured by article 98.1? The decision of the ICJ in the Arrest Warrant case warrants
the question whether the Statute does not still allow the Court to take action that
can violate customary international law on personal immunities.
The ICJ held the issuance of the arrest warrant by Belgium to violate the immun-
ity of Yerodia because the warrant orders ‘all bailiffs and agents of public author-
ity . . . to execute this arrest warrant’ and was hence enforceable in Belgium.³⁵⁶
In addition, however, the Court engaged the question whether the international
circulation of the warrant constituted a separate violation of the immunity. The
arrest warrant was communicated to Interpol in June 2000 but Belgium did not
request an Interpol red notice until after the abdication of Yerodia as minister
for foreign affairs. Belgium argued that the circulation of the warrant did not
violate the sovereignty of DRC because the warrant had no legal effect on for-
eign territory. The Court did not agree with the criterion relied on by Belgium.
Since the circulation of the arrest warrant was ‘to establish a legal basis for the
arrest of Mr. Yerodia . . . abroad and his subsequent extradition to Belgium’ the
‘nature and purpose’ of the warrant was such that it ‘effectively infringed’ the
immunity of Yerodia. The Court considered that even in the absence of ‘fur-
ther steps’ by Belgium the ‘mere international circulation of the warrant . . . could
have resulted . . . in his arrest while abroad’. The circulation of the warrant was
therefore held to constitute a violation of the rights of DRC.³⁵⁷ Judges Higgins,
Kooijmans and Buergenthal further explained in their Separate Opinion that
‘[a]n international arrest warrant, even though a Red Notice has not yet been
linked . . . is already a statement of willingness and ability to act and as such may
be perceived as a threat so to do at a moment of Belgium’s choosing.’³⁵⁸
The criterion of the ICJ is a strict one—arguably too strict this author
admits.³⁵⁹ What are the consequences of this approach for the proceedings
before international courts? Upon close consideration the consequences are
³⁵⁴ D Akande (2004) 421.

³⁵⁵ Cf eg HG Schermers and NM Blokker, International Institutional Law (4th edn, 2003)
1002, § 1579.
³⁵⁶ Arrest Warrant Case, 29, § 70.
³⁵⁷ ibid 29–30, § 70–1.
³⁵⁸ ibid Joint Separate Opinion Judges Higgins, Kooijmans and Buergenthal, 84, § 69.
³⁵⁹ Cf ch 4 § 2.3 for a more elaborate discussion of the issue.
arguably not limited to the power to circulate arrest warrants—as it is in respect
of arrest warrants issued by national courts. Since the issuance of an arrest war-
rant by an international court is by definition to establish a legal basis for arrest
outside the jurisdiction of the court and the subsequent surrender to the court, it
can be argued that the nature and purpose of issuance is the same as that of cir-
culation in the Arrest Warrant case and that accordingly the distinction between
issuance and circulation is blurred. Or, the arguments that supported the finding
that the circulation of the arrest warrant for Yerodia violated his immunity from
foreign jurisdictions arguably applies to the issuance of an arrest warrant by an
international court.
The ICC Statute arguably fails to comply with this strict criterion. Article 98.1
does not prevent the Pre-Trial Chamber from issuing a warrant of arrest of such
a person under article 58. In this respect the absence of the possibility to indict
individuals before formulating an arrest warrant is notable.³⁶⁰
Before we move to the discussion of the Taylor case a final—but not
unimportant—observation is called for. In addition to the two issues of prin-
ciple troubling the exercise of jurisdiction over state officials clothed with per-
sonal immunity by international courts, there is a third, more technical issue
that must be taken into account. For an international court to be able to exercise
jurisdiction irrespective of personal immunity rules, the statute that regulates
the court’s jurisdiction must contain a provision to that effect. It is recalled that
a provision concerning the irrelevance of official capacity for the responsibility of
suspects does not suffice in this respect. An article 27.2–like provision is indis-
pensable.³⁶¹ It is in this respect, for example, questionable whether the ICTY
had jurisdiction to indict Milosević while he was the incumbent head of state of
the Federal Republic of Yugoslavia.³⁶² The question was never put to the ICTY.
The Trial Chamber has only been asked to consider whether the Tribunal lacked
competence because of the status of Milosević as a former head of state—an argu-
ment that could easily be rejected under article 7.2 of the Statute.³⁶³ However,
since the ICTY Statute does not provide that personal immunities do not apply
before the Tribunal Milosević was not amenable to the jurisdiction of the ICTY
at the time the initial indictment was formulated.
The 2004 decision of the Appeals Chamber of the SCSL in Prosecutor v Taylor
advances the, in this study, disputed position on the first issue, fails to recognize
³⁶⁰ Cf in contrast arts 18 and 19 ICTY Statute.

³⁶¹ Cf p 269 above. Cf for an apparently different view D Akande, (2004) 417.
³⁶² Milosević was head of state from the FRY from July 1997 until October 2000. The ICTY
first indicted him on 22 May 1999.
³⁶³ Prosecutor v Milosević (ICTY, 2001) § 26–34. Milosević did argue that the Tribunal ‘does
not have jurisdiction over the person of President Milosevic’, but the amici curiae and the Court
interpreted this argument as a denial of the validity of art 7.2 of the ICTY Statute. This argument
was rejected, cf n 48 above.
the pertinence of the second issue, and completely ignores the third issue.³⁶⁴ Let
us take a closer look at the facts of the case, the influential submissions of Sands
and Orentlicher as amici curiae of the Court, and the reasoning and conclusions
of the Court in order to substantiate that assertion.³⁶⁵
In 2002 the SCSL was established by an agreement between the Secretary
General of the United Nations and Sierra Leone pursuant to Security Council
Resolution 1315 (2000).³⁶⁶ Resolution 1315 stated ‘that the situation in Sierra
Leone continues to constitute a threat to international peace and security in the
region’ and that ‘persons who commit or authorize serious violations of inter-
national humanitarian law are individually responsible and accountable for those
violations and that the international community will exert every effort to bring
those responsible to justice in accordance with international standards of justice,
fairness and due process of law’. The Security Council requested ‘the Secretary-
General to negotiate an agreement with the Government of Sierra Leone to
create an independent special court consistent with this resolution’. It further
‘recommends . . . that the special court should have personal jurisdiction over per-
sons who bear the greatest responsibility for the commission of [crimes against
humanity, war crimes and other serious violations of international humanitar-
ian law, as well as crimes under relevant Sierra Leonean law committed within
the territory of Sierra Leone], including those leaders who, in committing such
crimes, have threatened the establishment of and implementation of the peace
process in Sierra Leone’.
The Secretary-General proposed to establish a Special Court that in contrast
to the ICTY and ICTR would not be established by a Security Council reso-
lution but by treaty and that is consequently ‘a sui generis court . . . not anchored
in any existing system (i.e. United Nations administrative law or the national law
of the State of the seat)’. The Secretary-General underlined that the Special Court
did not have primacy over national courts in third states and ‘lacks the power to
request the surrender of an accused from any third State and to induce the com-
pliance of its authorities with any such request’. He further suggested that ‘[i]n
examining measures to enhance the deterrent powers of the Special Court, the
Security Council may wish to consider endowing it with Chapter VII powers
for the specific purpose of requesting the surrender of an accused from outside
the jurisdiction of the Court.’³⁶⁷ In 2002 the Agreement on the Establishment
³⁶⁴ Prosecutor v Charles Ghankay Taylor (SCSL, 2004). It is noted that on the basis of the same
facts Liberia did also fi le an application seeking to bring proceedings against Sierra Leone before
the ICJ. The Court cannot however engage the application since Sierra Leone has not accepted the
jurisdiction of the Court. Cf Press Release 2003/26 (available at <http://www.icj-cij.org>).
³⁶⁵ P Sands and A Macdonald (2004); D Orentlicher (2004) (on fi le with the author).
³⁶⁶ Security Council Resolution 1315 (2000) of 14 August 2000, UN Doc. S/RES/1315.
³⁶⁷ Report of the Secretary-General on the establishment of a Special Court for Sierra Leone,
2 October 2000, UN Doc S/2000/915, § 9–11.
of a Special Court for Sierra Leone was concluded.³⁶⁸ The Statute of the Special
Court was annexed to the Agreement. The Court was given jurisdiction to pros-
ecute individuals suspected of crimes against humanity, violations of common
article 3 of the Geneva Conventions and of Additional Protocol II, other serious
violations of international humanitarian law, and certain crimes under Sierra
Leonean law.³⁶⁹ Article 1.1 of the Statute reads:
The Special Court shall . . . have the power to prosecute persons who bear the greatest
responsibility for serious violations of international humanitarian law and Sierra Leonean
law committed in the territory of Sierra Leone since 30 November 1996, including those
leaders who, in committing such crimes, have threatened the establishment of and imple-
mentation of the peace process in Sierra Leone.
And article 6.2 provides that
[t]he official position of any accused persons, whether as head of State or Government or
as a responsible government official, shall not relieve such person of criminal responsibil-
ity nor mitigate punishment.
It should further be noted that the Security Council has not taken up the sug-
gestion of the Secretary-General to enhance the powers of the Court through a
Chapter VII resolution. The Council has merely called on states and in particular
on the government of Liberia to ‘cooperate fully’ with the Court, without putting
a Chapter VII signature on that request.³⁷⁰
In March 2003 the Court issued an indictment and arrest warrant for Charles
Taylor—then incumbent head of state of Liberia. The indictment accused Taylor
of the commission of crimes against humanity and grave breaches of the Geneva
Conventions. It alleged that he ‘resourced and directed rebel forces, encouraging
them in campaigns of terror, torture and mass murder, in order to enrich himself
from a share in the diamond mines that were captured by the rebels’.³⁷¹ The trans-
mission of the warrant in June 2003 to the authorities of Ghana, where Taylor
was visiting, failed to secure his arrest. Before abdicating in August 2003, Taylor
filed an application to quash the indictment and to set aside the warrant for his
arrest in July 2003 on the ground that as the head of state of Liberia he is immune
from the jurisdiction of the Court. In particular it was argued on his behalf that:
(a) Citing the judgment of the International Court of Justice (‘ICJ’) in the case between
the Democratic Republic of the Congo v Belgium (‘Yerodia’ case), as an incumbent
Head of State at the time of his indictment, Charles Taylor enjoyed absolute immun-
ity from criminal prosecution;
³⁶⁸ Agreement between the United Nations and the Government of Sierra Leone on the
Establishment of a Special Court for Sierra Leone (2002), available at <http://www.sc-sl.org>.
³⁶⁹ Cf arts 2–5 of the Statute of the Special Court for Sierra Leone, available at <http://www.
sc-sl.org>.
³⁷⁰ Cf SC Resolutions 1478 (2003); 1470 (2003); 1436 (2003); 1408 (2002), 1400 (2002). Cf
Z Deen-Racsmány (2005) 307ff for a discussion of the legal basis of these resolutions.
³⁷¹ Prosecutor v Charles Ghankay Taylor, (SCSL, 2004) § 5.
(b) Exceptions from diplomatic immunity can only derive from other rules of inter-
national law such as Security Council resolutions under Chapter VII of the United
Nations Charter (‘UN Charter’);
(c) The Special Court does not have Chapter VII powers, therefore judicial orders from
the Special Court have the quality of judicial orders of a national court;
(d) The indictment against Charles Taylor was invalid due to his personal immunity
from criminal prosecution . . .³⁷²
While the initial submissions did not clearly distinguish between the jurisdic-
tion to try an incumbent head of state and the jurisdiction to circulate an arrest
warrant, the applicant asserted in an additional submission that the issuance of
the arrest warrant violated ‘the sovereignty of Ghana’ and ‘the principle of inter-
national law providing for immunity from criminal proceedings in foreign juris-
dictions of an incumbent Head of State’.³⁷³ The complaint was hence directed at
two distinct issues. The SCSL was held to have no jurisdiction over incumbent
heads of state since it is not ‘an international criminal court of the kind referred
to [sic] the Yerodia case’, and it was held that the SCSL ‘acted in excess of jurisdic-
tion in transmitting the indictment and warrant of arrest’.³⁷⁴
The Prosecution responded, in relevant part, with the following arguments:
(d) The Yerodia case concerns the immunities of an incumbent Head of State from the
jurisdiction of the courts of another State;
(e) Customary international law permits international criminal tribunals to indict
acting Heads of state and the Special Court is an international court established
(f ) The lack of Chapter VII powers does not affect the Special Court’s jurisdiction over
Heads of State. The International Criminal Court (‘ICC’), which does not have
Chapter VII powers, explicitly denies immunity to Heads of State for international
crimes.³⁷⁵
The position of the prosecution on the additional submission of the applicant
does not transpire from the text of the decision.
Both amici curiae rejected the arguments of the defence. Orentlicher limited
her observations to what we have called the first issue troubling the exercise of jur-
isdiction over persons with personal immunity by international courts. Without
much ado she found that the SCSL has jurisdiction to prosecute a sitting head of
state. On the basis of two considerations of the ICJ in the Arrest Warrant case she
argued that international criminal tribunals now have jurisdiction over serving
heads of state. She relied on paragraphs 58 and 61 of the decision quoted earlier in
this chapter to argue subsequently that
the rule that denies even incumbent heads of state immunity from prosecution before
international criminal tribunals is hardly confined to courts by or with the imprimatur of
³⁷² ibid § 6. ³⁷³ ibid § 12 sub d.

³⁷⁴ ibid § 14. ³⁷⁵ ibid § 9.
the Security Council. For purposes of the distinction drawn by the ICJ between national
and international courts, relevant jurisprudence has implicitly defined ‘international
criminal courts’ broadly.³⁷⁶
She referred to the diverse juridical bases of the Nuremberg Tribunal, the
International Military Tribunal for the Far East, the ICTY and ICTR and the
ICC. Orentlicher pointed out that the authority of the Security Council to act
on behalf of UN Member States is not confined to actions taken under Chapter
VII of the UN Charter. The Security Council, she argued, has acted ‘on behalf
of all Members of the United Nations’ when it requested the Secretary-General
to negotiate the Agreement. She moreover noted that the Secretary-General had
emphasized that the SCSL ‘is established outside the national court system’ and
noted several other points that corroborate that. Because the Special Court is
properly characterized as ‘an international criminal court’ Orentlicher concluded
that Taylor was not entitled to claim procedural immunity from the jurisdic-
tion of the SCSL and that the indictment did not violate the rule of head of state
immunity.
Sands reasoned in much the same vein. He argued—referring to the Versailles
Treaty, as well as the principle of irrelevance of official capacity in the Nuremberg
Charter and its progeny—that ‘[a]s regards the international courts and tribu-
nals which have been established . . . practice has been consistent, in that no serv-
ing head of state has been recognised as being entitled to rely on jurisdictional
immunities.’³⁷⁷ He pointed out in particular that ‘[t]he ICC was not established
pursuant to Security Council Resolution, so the question of Chapter VII powers
does not arise. As a treaty-based organisation it is similar to the Special Court
for Sierra Leone’.³⁷⁸ Just like Orentlicher, Sands relied on paragraphs 58 and 61
of the Arrest Warrant case to argue that the ICJ distinguished between national
courts and international courts for the purpose of the applicability of the rule of
personal immunity.³⁷⁹ He concludes:
The general tendency points towards the view that in respect of international courts there
exists no [sic] a prior entitlement of a State to claim immunity . . . International practice
and a majority of academic commentary supports the view that before an international
criminal court or tribunal (whether or not it has been established under Chapter VII
of the UN Charter) may exercise jurisdiction over a serving head of state and that such
person is not entitled to claim immunity under customary international in respect of
international crimes.³⁸⁰
³⁷⁶ ibid D Orentlicher (2004) (on fi le with the author) text with n 50 and 51 and quotation at
text with n 60. Cf for § 58 and 61 of the Arrest Warrant Case p 242 and 243 above.
³⁷⁷ ibid P Sands and A Macdonald (2004), § 2. Cf § 2–9.
³⁷⁸ ibid § 11.
³⁷⁹ ibid § 43–4.
³⁸⁰ ibid § 55 and 56.
‘The opposite view’ he argued, ‘relies on a particular reading of the Yerodia judg-
ment, and on an assumption—that international law grants immunities in rela-
tion to international courts—which does not appear to rest on established or
identified state practice. The approach is also not supported by the Statute of the
ICC, which implies a distinction between the right to exercise jurisdiction on
the one hand, and the right to expect cooperation from a Party to the Statute or a
third State, on the other hand’.³⁸¹
Accordingly, Sands stated,
the nature of the Special Court is of central importance in determining whether it can
lawfully issue and then circulate internationally an indictment or international arrest
warrant against a serving head of state . . . In order to determine its nature, it is neces-
sary to review the basis upon which the Special Court was established, before compar-
ing the legal basis and capacities of the Special Court with other international criminal
tribunals.³⁸²
While the Security Council when dealing with the Court has not acted under
Chapter VII, Sands pointed out that ‘Chapter VII is not a sine qua non for
obligations to arise from Security Council action: in our submission Chapter
VII powers may not be relevant at all to the question of the Court’s exercise of
jurisdiction’.³⁸³ As Orentlicher, Sands emphasizes that
[t]here can be no doubt that Security Council resolution 1315 is binding . . . Other reso-
lutions calling on all states, and in particular the government of Liberia to cooperate fully
with the Special Court are also binding. In respect of Chapter VII the Special Court is
in no different position from the ICC. Yet all three tribunals—the ICTY, the ICTR,
and the ICC—were envisaged by the ICJ in the Yerodia case to have jurisdiction over a
ser ving head of state . . . This confirms that the possession of Chapter VII powers cannot
be essential for the question of immunity.
Since the SCSL is an international court with ‘jurisdiction . . . broadly similar to
that of the ICTY, the ICTR and the ICC, including in relation to the provisions
confirming the absence of entitlement of any person to claim immunity’ it has
jurisdiction to prosecute a sitting head of state.³⁸⁴
The Appeals Chamber proceeded from the proposition that ‘the sovereign
equality of states does not prevent a head of State from being prosecuted before
an international criminal tribunal or court’.³⁸⁵ It relied in this respect on the
principle of irrelevance of official capacity as found in the instruments estab-
lishing international courts ever since article 7 was included in the Nuremberg
Charter,³⁸⁶ and on the distinction between national courts and international
courts evinced in the Arrest Warrant case.³⁸⁷
³⁸¹ ibid § 55. ³⁸² ibid § 58.

³⁸³ ibid § 75. ³⁸⁴ ibid § 76.
³⁸⁵ Prosecutor v Charles Ghankay Taylor (SCSL, 2004) § 52, cf also § 51.
³⁸⁶ ibid § 43–9. ³⁸⁷ ibid § 50.
Consequently, the Court observed at the outset that ‘the issues in this motion
turn to a large extent on the legal status of the Special Court’.³⁸⁸ Subsequently,
it set out to establish that it is irrelevant for the status of the SCSL whether it was
established under Chapter VII of the UN Charter or not. The Court recalled that
in Resolution 1315 ‘the Security Council reiterated that the situation in Sierra
Leone continued to constitute a threat to international peace and security in the
region’ and emphasized that the powers of Security Council under article 39 and
41 of the Charter ‘are wide enough to empower the Security Council to initiate,
as it did by Resolution 1315, the establishment of the Special Court by Agreement
with Sierra Leone’.³⁸⁹ It then explained that ‘[w]here the Security Council estab-
lishes a court as a measure to maintain or restore international peace and security
it may or may not, at the same time, contemporaneously, call upon the members
of the United Nations to lend their cooperation to such court as a matter of obli-
gation’ but that the Security Council can also decide to require members of the
United Nations to lend their cooperation under Chapter VII—and hence as a
matter of obligation—subsequently to the establishment of the Court ‘should sub-
sequent events make that course prudent.’³⁹⁰ Accordingly, the Court asserted,
‘the absence of the so-called Chapter VII powers does not by itself define the legal
status of the Special Court’. Rather, for the determination of the legal status of
the Court
[i]t is to be observed that in carrying out its duties under its responsibility for the main-
tenance of international peace and security, the Security Council acts on behalf of the
members of the United Nations. The Agreement between the United Nations and Sierra
Leone is thus an agreement between all members of the United Nations and Sierra Leone.
This fact makes the Agreement an expression of the will of the international community.
The Special Court established in such circumstances is truly international.³⁹¹
The Court adopted the conclusions of Sands. In particular it stated that
the Special Court is not a national court of Sierra Leone and is not part of the judicial sys-
tem of Sierra Leone exercising judicial powers of Sierra Leone . . . The competence and jur-
isdiction ratione materiae and ratione personae are broadly similar to that of the ICTY and
the ICTR and the ICC, including in relation to the provisions confirming the absence of
entitlement of any person to claim immunity . . . Accordingly, there is no reason to con-
clude that the Special Court should be treated as anything other than an international
tribunal or court, with all that implies for the question of immunity for a serving Head
of State.³⁹²
The Court and the amici rightly concluded that Chapter VII powers are irrelevant
for the status of the SCSL as an international court. However, this study disagrees
with the fundamental proposition underlying this conclusion that the status of
³⁸⁸ ibid § 34. ³⁸⁹ ibid § 37.

³⁹⁰ ibid § 38. ³⁹¹ ibid § 38.
³⁹² ibid § 41. Cf P Sands and A Macdonald (2004), § 118 sub 7–8.
international court is relevant for the question whether there is jurisdiction over
persons clothed with personal immunity. The amici curiae and the Court rely
entirely on a mistaken interpretation of the scope of the traditional irrelevance
of official capacity principle and in particular on the very feeble fundament of
the ICJ decision in the Arrest Warrant case. At the risk of sounding like a broken
record player it should once more be emphasized that the principle of irrelevance
of official capacity only regards the substantive immunity of state officials and
is applicable in national and international proceedings alike. Paragraph 58 of
the Arrest Warrant decision does not state that this principle does not apply to
national courts. Rather it states that this principle does not warrant the conclu-
sion that an exception to personal immunity from national court proceedings
exists. Arguably, the ICJ merely set out to distinguish substantive from proced-
ural immunities. Moreover, paragraph 61 of the Arrest Warrant case did not state
that personal immunity does not apply before international courts; it only stated
that the rule did not apply before certain international courts.
The briefs of the amici and the decision of the Court parrot the proposition
developed in recent doctrine that the rule of personal immunity does not apply
before international courts as of principle. The suggestion that the rule of personal
immunity from the jurisdiction of international courts lacks support in state
practice is however the world on its head. This study asserts that the rule applies a
priori before international courts. It is the opposite position that requires support
in state practice to be tenable.
An international court may have the power to exercise jurisdiction over indi-
viduals normally protected by personal immunity if the state of nationality has
agreed to the jurisdiction of that court, if the court has Chapter VII powers, or
if the Security Council so determines in a resolution adopted under Chapter VII
subsequent to the court’s establishment. It is interesting to note in this regard
that Sands did state that ‘[i]f the Special Court had not been established pursu-
ant to Security Council resolution the situation may be materially different: for
example, two States may not be [sic] establish an international criminal court for
the purpose, or with the effect, or circumventing the jurisdictional limitations
incumbent on national courts as adjudged by the ICJ in the Yerodia case.’³⁹³
Neither Sands, Orentlicher nor the Court explain how the exercise of jurisdiction
by an international court established by two states differs from the exercise of jur-
isdiction by an international court established by sixty states.
Let us move now to the question of whether the arrest warrant violated the
rule of head of state immunity from national jurisdiction. Taylor had argued
in this respect that the issuance of the arrest warrant violated ‘the principle of
international law providing for immunity from criminal proceedings in foreign
jurisdictions of an incumbent Head of State’.³⁹⁴ The brief of Orentlicher and the
³⁹³ P Sands and A Macdonald (2004) § 78.

³⁹⁴ Cf n 373 above.
decision of the Appeals Chamber itself, did not acknowledge what this study has
labelled the second issue troubling the prosecution of individuals clothed with
personal immunity by international courts.³⁹⁵ Only Sands distinguished the two
principal issues of the complaint.
According to Sands the immunity from the jurisdiction of national courts only
limits the enforceability of arrest warrants of international courts against states,
not the jurisdiction to issue and circulate an arrest warrant. This view, he alleged,
is supported by article 98.2 of the ICC Statute that ‘does not appear to govern
the procedures relating to the issuance by the Pre-Trial Chamber of a warrant of
arrest or a summons to appear (under Article 58 of the Statute), which procedures
are subject to Article 27 of the Statute’.³⁹⁶ Sands admitted that the ICJ regarded
the circulation of the Belgian arrest warrant for the minister of foreign affairs of
the DRC to violate the personal immunity of that minister regardless of the legal
effect of the warrant on foreign territory.³⁹⁷ He however points the SCSL to the
‘powerful’ dissenting opinions on this issue³⁹⁸ and argues moreover that the case
should be distinguished because it concerned the issuance and circulation of an
arrest warrant by a national court that did not have jurisdiction over the suspect.
Did the Court not state expressly that ‘before certain international courts’ per-
sonal immunities did not represent a bar to criminal jurisdiction?³⁹⁹ Since ‘the
international circulation of the arrest warrant did not per se require Ghana to give
effect to it’ Sands did not consider that the issuance and circulation of the arrest
warrant violated the personal immunity of Taylor from national jurisdictions.⁴⁰⁰
This study agrees with the suggestion that the decision of the ICJ on the viola-
tion of immunity by the issuance and circulation of non-binding warrants is not
necessarily correct. It is a pity that the SCSL did not recognize the distinct nature
of the question. A second judicial opinion on it is most welcome.
It should finally be noted that only Sands recognized the relevance of the ques-
tion whether the Statute of the SCSL allows the exercise of jurisdiction over indi-
viduals clothed with personal immunity—what this study has termed the third
issue. Sands admitted that ‘[l]ike the ICTY and ICTR, the Statute of the Special
Court does not contain an equivalent provision to Article 27(2) of the Rome
Statute.’ However, he quickly disposes of the possible problem with the argument
that ‘the practice of the ICTY makes it clear that the Statute of that Court (Article
7(2) of which is identical to Article 6(2) of the Statute of the Special Court) is
³⁹⁵ The Appeals Chamber only—briefly—discussed the argument that the circulation of the
arrest warrant violated the sovereignty of Ghana: Prosecutor v Charles Ghankay Taylor (SCSL,
2004) § 57.
³⁹⁶ P Sands and A Macdonald (2004) § 15 and § 97.
³⁹⁷ ibid § 96.
³⁹⁸ ibid § 99–101.
³⁹⁹ ibid § 96. Moreover—under reference to the Joint Separate Opinion of Judges Higgins,
Kooijmans and Buergenthal in the Arrest Warrant case—Sands suggested that after Taylor ceased
to be head of state ‘the illegal consequences attaching to the arrest warrant also ceased’, § 106–7.
⁴⁰⁰ ibid § 92ff.
sufficient to permit the indictment of a serving head of state such as Milosevic’.⁴⁰¹

Sands further referred to article 1.1 of the Statute that states that the SCSL has
power ‘to prosecute persons who bear the greatest responsibility . . . including
those leaders who, in committing such crimes, have threatened the establishment
of and implementation of the peace process in Sierra Leone’. He argued that for-
eign heads of state are not excluded from this definition and that accordingly the
Statute allows the exercise of jurisdiction over them.⁴⁰²
This study disagrees. The principle of irrelevance of official capacity does not
regard the rule of personal immunity. A provision like article 27.2 ICC Statute is
indispensable for an international tribunal to derive jurisdiction from its Statute
over persons normally clothed with personal immunity. The reliance on the insti-
gation of proceedings against Milosević attributes way too much authority to an
incident the legality of which has not even been examined by the ICTY itself.
While article 1.1 may not exclude foreign heads of state, the more pertinent ques-
tion is whether it suffices to include foreign heads of state. This study would argue
that more is required to preclude the applicability of the well-established rule of
personal immunity of foreign heads of state.
The decision of the SCSL and the opinions of amici curiae on the vexed question
as to the relevance of personal immunities to prosecutions before international
criminal courts fail to convince. The Nuremberg Charter and its progeny do not
shed light on the question, and the decision of the ICJ in the Arrest Warrant
case does not support a straightforward distinction between national and inter-
national courts in this respect. At this stage in the development of thinking on
the question judges and doctrine should adopt a critical stance as regards the
instances of state practice that are available. The reference to the ICC in para-
graph 61 of the Arrest Warrant case, the inclusion of article 98 in part 9, and the
indictment of Milosević by the ICTY should prompt critical analysis rather than
definite statements on the scope of the law. In the absence of state practice, a
coherent proposition on the influence of the rule of personal immunity on pros-
ecutions before international courts must be based on an inquiry into the frame-
work of relevant rules and principles of international law. This section has argued
that the outcome of such inquiry should be:
1. that personal immunities that apply erga omnes are a priori applicable to inter-
national courts;
2. that international courts can exercise their jurisdiction over persons clothed
with this immunity when the state that is represented by such person is bound
by the power of the court;
3. that is, provided that the relevant statute contains a provision similar to
article 27.2 ICC Statute;
⁴⁰¹ ibid § 80. ⁴⁰² ibid § 81–9.

4. that international courts must anyway be careful not to violate the personal
immunity from national jurisdictions with the issuance and circulation of an
arrest warrant.
2.3.2.3 Conventional law

It should in conclusion be noted that while the rule of diplomatic immunity and
the rule of head of state immunity continue to shield diplomatic agents and for-
eign heads of state from jurisdiction in respect of allegations of crimes against
international law states can of course waive the personal immunity of their state
officials.
The already discussed article 27.2 of the Rome Statute is a case in point. We
should further consider article 4 of the 1948 Genocide Convention. The article
provides that
[p]ersons committing genocide or any of the other acts enumerated in article III shall be
punished, whether they are constitutionally responsible rulers, public officials or private
individuals.
The article has a somewhat limited impact since the convention limits the obliga-
tion to prosecute suspects of genocide to the state in the territory of which the act
was committed. It does however logically apply to diplomatic agents and foreign
heads of state suspected of committing genocide within the territory of the forum
state. As far as states party to the convention are concerned they may be con-
sidered to have waived their rights under the personal immunity rules normally
protecting these officials as far as another state party is exercising its jurisdiction
in conformance with the convention.
A similar provision is lacking in other international criminal law conventions.
Notably, the 2006 International Convention for the Protection of All Persons
from Enforced Disappearance⁴⁰³ does not contain an immunity provision
even though an earlier draft of the Convention and the 1992 Declaration on
the Protection of all Persons from Enforced Disappearance did both explicitly
exclude the immunity defence (except for immunity granted under the Vienna
Convention on Diplomatic Relations).⁴⁰⁴ Instead, Article 5 of the Convention
provides that ‘[t]he widespread or systematic practice of enforced disappearance
constitutes a crime against humanity as defined in applicable international law
and shall attract the consequences provided for under such applicable inter-
national law’, leaving any possible developments in the field of immunity law to
general international customary law.
⁴⁰³ International Convention for the Protection of All Persons from Enforced Disappearance,
20 December 2006, A/RES/61/177 (not yet in force).
⁴⁰⁴ Declaration on the Protection of all Persons from Enforced Disappearance, 18 December
1992, A/RES/47/133, art 16; Draft International Convention for the Protection of All Persons
from Enforced Disappearance, E/CN.4/Sub.2/1998/19 Annex, art 10.2.
However, the decision of the House of Lords in Pinochet no 3 warrants the

question whether conventional undertakings to prosecute certain crimes should
be interpreted to constitute a waiver even without an explicit provision to that
effect. Lord Goff, for example, did not see how the ratification of the Torture
Convention could be interpreted to have affected the rule of functional immun-
ity but not the rule of personal immunity. His dissenting opinion reads in this
respect:
[I]t is not suggested that it is inconsistent with the convention that immunity ratione
personae should be asserted; if so, I find it difficult to see why it should be inconsistent to
assert immunity ratione materiae.⁴⁰⁵
This observation raises a critical question. Is the basis of the majority decision con-
sistent with the argument that serving heads of state continue to enjoy immunity
for acts of torture? Do the relevant provisions of the Torture Convention warrant
a different conclusion for serving heads of state than for former heads of state? Fox
has argued in this respect that ‘there is nothing in article 1 [Torture Convention]
to confine its scope to a former head of State; the retention of immunity in favour
of a serving head of state then becomes equally inconsistent with the aut dedere
aut punire scheme of the convention’.⁴⁰⁶
A rational distinction does however exist. In the first place, the reliance on the
Torture Convention for the establishment of a basis for the exercise of universal
jurisdiction—by Lords Hope and Philips—only served to give free way to an
argument that was limited to the rule of functional immunity. More import-
antly, the argument that the rule of functional immunity is co-extensive with
the definition of torture under the Convention—advanced by Lords Browne-
Wilkinson and Saville—does not apply to the rule of personal immunity. While
under the reasoning advanced by Lords Browne-Wilkinson and Saville the obli-
gations under the Convention always clash with the obligations under the rule of
functional immunity, the obligations under the Convention will only exception-
ally clash with the obligations under personal immunity rules. The Convention
⁴⁰⁵ Pinochet no 3, 127 (per Lord Goff of Chievely).

⁴⁰⁶ H Fox (1999) 700. Cf also CA Bradley and JL Goldsmith, ‘Pinochet and International
Human Rights Litigation’ (1999) 97 Michigan Law Review 2129, 2144; P Burns and S McBurney,
‘Impunity and the United Nations Convention against Torture: A Shadow Play without an Ending’
in C Scott (ed), Torture as Tort, Comparative Perspectives on the Development of Transnational
Human Rights Litigation (2001) 275, 286; S Villalpando, ‘L’affaire Pinochet: beaucoup de bruit
pour rien? L’apport au droit international de la décision de la Chambre des Lords du 24 mars 1999
(2000) 104 RGDIP 393, 419; R Wedgewood (2000) 841 (‘one could read the Torture Convention
even more vigorously to exclude immunity for sitting heads of state’). Cosnard has argued that
‘en fondant la non-immunité sur le jus cogens, cet équilibre devient difficile à réaliser sans hausser
le principle de l’immunité des chefs d’État en exercise au niveau de règle impérative.’: ‘Quelques
observations sur les décisions de la Chambre des Lords du 25 Novembre 1998 et du 24 Mars 1999
dans l’affaire Pinochet’ (1999) 103 RGDIP 309, 321. Cf in a similar vein P De Sena (1999) 952–3.
This consideration does however not cut ice since none of the Lords based the denial of immunity
on the concept of jus cogens.
hence does not exclude personal immunities by implication, and states cannot be
assumed to have waived their rights under personal immunity rules without any
indication to that effect.
It is noted in comparison that the ICJ has held with regard to the local remed-
ies rule that it is ‘unable to accept that an important principle of customary inter-
national law should be held to have been tacitly dispensed with, in the absence
of any words making clear an intention to do so’.⁴⁰⁷ Equally it should not be
assumed that states tacitly dispense with their rights under personal immunity
rules by ratifying a treaty that provides for mandatory universal jurisdiction over
a certain crime.
This is corroborated by the reasoning of the ICJ in the Arrest Warrant Case. The
Court emphasized that ‘the rules governing the jurisdiction of national courts
must be carefully distinguished from those governing jurisdictional immunities:
jurisdiction does not imply absence of immunity, while absence of immunity
does not imply jurisdiction. Thus, although various international conventions
on the prevention and punishment of certain serious crimes impose on states
obligations of prosecution or extradition, thereby requiring them to extend their
criminal jurisdiction, such extension of jurisdiction in no way affects immun-
ities under customary international law, including those of Ministers for Foreign
Affairs. These remain opposable before the courts of a foreign state, even where
those courts exercise such jurisdiction under these conventions.’⁴⁰⁸
What can be said though is that the conventional undertaking to prosecute
limits the freedom of states to grant individuals more immunity than required
or normal under customary international law.⁴⁰⁹ It is for example question-
able whether the promise of full immunity to encourage the abdication of high
foreign state officials is compatible with conventional aut dedere aut judicare
obligations.⁴¹⁰
3 Policy Arguments: The (In)Compatibility of the Rule

of Personal Immunity and the Obligation to Prosecute
Personal immunity rules are not directly affected by the developments in inter-
national criminal law. The debate on an exception to personal immunity for
⁴⁰⁷ Elettronica Sicula SpA ( ELSI) (United States of America v Italy) ICJ Reports 1989 14, 42,
§ 50.
⁴⁰⁸ Arrest Warrant Case, 24–5, § 59.
⁴⁰⁹ The status of immunities granted under Status of Forces Agreements (SOFA’s) is here not
discussed. Such agreements are certainly accepted and normal state practice.
⁴¹⁰ It is in this respect recalled that in the US head of state immunity is commonly recognized
to apply to former heads of state as well, cf Abiola v Abubakar (US, 2003), and Wei Ye v Jiang Zemin
(US, 2004). Cf this to the discussion on the conclusion of art 98.2 agreements with the US by states
party to the ICC. Eg M Benzing (2004).
crimes against international law hence should be conducted on the essentially

different level of policy arguments. The issue of debate is then not what the scope
of the rules of personal immunity is but what that scope should be. States could
decide to change the rules when they agree that the interests in the adminis-
tration of justice outweigh the interests protected by the rules. Judges Higgins,
Kooijmans, and Buergenthal rightly considered in their Joint Separate Opinion
in the Arrest Warrant case that ‘the weights on the two scales are not set for all
perpetuity’.⁴¹¹
Policy arguments cannot be relied on by courts or scholars determining the
scope of the rule. Rather, they should guide states in their law-making activity.
Accordingly, when Gaeta argues that personal immunities should not be granted
when, although the State to which the organ belongs does have jurisdiction over
the crimes allegedly committed by that organ, nevertheless the receiving State
has compelling reasons to believe either that the sending State will not prosecute
the crimes’ except when the foreign official is the head of state because ‘to bring to
trial a Head of State might jeopardize the structure and functioning of the foreign
State, since he discharges important and sensitive constitutional functions,⁴¹²
this can only be accepted as a suggestion for change; not as a declaration of law.⁴¹³
It was in this respect argued earlier that the reasoning of dissenting Judge Van
den Wyngaert in the Arrest Warrant case was not appropriate.⁴¹⁴
This study limits the discussion of policy arguments to those particularly force-
ful arguments that point to a clash of the obligations under personal immunity
rules with the obligations under international criminal law. As said before, the
obligation to prosecute does not exist under customary international criminal
law.⁴¹⁵ Moreover, conventional undertakings to prosecute certain crimes in prin-
ciple do not extend to individuals that are exempted from the jurisdiction of the
ratifying state.⁴¹⁶ Policy arguments of this kind are therefore not available.
4 Conclusions
When the UK Divisional Court was asked to decide whether General Pinochet
enjoyed immunity from the jurisdiction of UK courts it unanimously decided
that the former head of state of Chile was protected by immunity from the juris-
diction of the English courts. The judges held that there could be no limitation to
⁴¹¹ Arrest Warrant Case, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal,
85, § 75. Cf in general 84–5, § 70–5.
⁴¹² P Gaeta (2002) 986–9, quotation at 987.
⁴¹³ The denial of justice argument is therefore further discussed in ch 6 § 3 of this study.
⁴¹⁴ Cf p 271–2 above.
⁴¹⁵ There may be an obligation to exercise territorial jurisdiction over certain acts but that
is more an obligation under international human rights law. The effect thereof will therefore be
discussed in ch 6 § 3.4 below.
⁴¹⁶ Cf p 294–5 above.
immunity based on the nature of the crimes committed. Lord Bingham rational-
ized his decision with the following question: ‘If the former sovereign is immune
from process in respect of some crimes where does one draw the line?’⁴¹⁷
International law draws this line, however, in unequivocal terms. Since state
officials incur personal responsibility for crimes against international law com-
mitted on orders of their government, they can be sued in their personal cap-
acity before foreign national courts and international courts in respect of these
crimes. The principle of individual responsibility for crimes against international
law forms the universal limit on the mandate of state officials. Crimes against
international law can never be committed under the cloak of state authority and
the rationale of the rule of functional immunity hence does not extend to such
proceedings. Accordingly, cases against foreign state officials on allegations of
crimes against international law do not implead the state. The theory of individ-
ual responsibility for certain violations of international law bares the limits of the
state immunity doctrine.
This does not mean, however, that courts can always establish competence
when foreign state officials are sued on allegations of crimes against international
law. The finding that crimes against international law have been committed cre-
ates the competence of the court. Competence may therefore be lacking when
allegations rely on the context of state policy—as in the case of crimes against
humanity, apartheid, genocide and the unlawful use of force and aggression—
and the legal qualification of that policy is highly controversial.
The House of Lords reasoned differently in the Pinochet case. Since the Lords
proceeded from the conception of the rule of functional immunity as protecting
the sovereign acts of the home state from foreign interference, the principles of
individual responsibility for crimes against international law and irrelevance of
official capacity did not have the direct influence on the scope of the rule that is
proposed in this study. Lords Browne-Wilkinson and Saville based the denial of
immunity on the specific terms of the Torture Convention only; Lord Hutton—
and maybe Lord Millett—saw an exception to the rule of act of state immun-
ity to apply in criminal proceedings regarding crimes against international law;
Lord Hope saw an exception to the rule of act of state immunity to apply in
criminal proceedings regarding crimes against international law codified in a con-
vention establishing universal jurisdiction; and according to Lord Philips the rule
of functional immunity did not apply to crimes committed outside the territory
of the forum state at all and he considered therefore that the establishment of uni-
versal jurisdiction through the Torture Convention was not limited by the rule of
functional immunity. Pinochet no 3 is a weak precedent for functional immun-
ity decisions in future cases regarding allegations of crimes against international
⁴¹⁷ R v Bow Street Metropolitan Stipendiary Magistrate and others, ex p Pinochet Ugarte (UK,
1998) § 63.
law because of the reliance on the act of state immunity rule and the terms of the
Torture Convention.
This study asserts that the rule of state immunity applies only when the state
is the direct or indirect defendant in the proceedings. Only when a foreign state
official does not bear personal responsibility for the allegations can it be said that
the foreign state is the factual defendant in a case. Otherwise, state immunity
becomes act of state immunity. The 2004 decision of the UK Court of Appeal
in Jones v Saudi Arabia and Abdul Aziz was a tacit but sure deviation from the
Pinochet precedent. Recognizing the influence of the principle of individual
responsibility on the applicability of the rule of state immunity ratione materiae
the case implicitly recognized the distinction between that rule and the rule of
functional immunity.
The personal immunities of diplomatic agents and heads of state remain
unaffected by the principles of individual responsibility and irrelevance of official
capacity. Personal immunity is procedural rather than substantive in character
and a change of the law can therefore only be effected by a change in state prac-
tice on these rules. A recent string of judicial decisions—with the Arrest Warrant
case as prominent example—has confirmed that such a change has not yet taken
place. It has in this respect been argued that ‘[t]he Pinochet decision [might be]
little more than a pyrrhic victory for human rights, providing dictators with
the strongest possible incentive to keep on dictating.’⁴¹⁸ In a more critical vein,
Bianchi noted that ‘one would be left with the impression that it is power more
than law which protects office holders and that no matter whether they place
themselves well beyond the legitimate boundaries of their official authority, they
will be protected by law as long as they retain their power, whereas they will be
left to their fate once that power comes to an end.’⁴¹⁹ However, it is exactly the
point of the law of personal immunity that it is unconcerned with the nature of
the allegations. When the law protects certain individuals in power this does not
mean that power substitutes the law.
As far as personal immunities apply erga omnes this limit applies with equal
force to international courts and tribunals. States cannot abrogate the rights of
other states through international agreement and cooperation. The decision of
the SCSL in the Taylor case fails to convince. In any event, international courts
must be careful that their arrest warrants do not violate the personal immunity
of suspects from national jurisdictions. States can of course waive the personal
immunity of their officials, as they did for example in the ICC Statute and the
Genocide Convention.
⁴¹⁸ J Klabbers, ‘The General, The Lords and the Possible End of State Immunity’ (1999)
68 Nordic Journal of International Law 85, 89. Cf similarly AD Mitchell, ‘Leave your Hat on?
Head of State Immunity and Pinochet’ (1999) 25 Monash University Law Review 225, 251–2.
⁴¹⁹ A Bianchi (1999) 261.
The ICJ has been presented with another opportunity to clarify some of the
issues discussed in this chapter. The Republic of the Congo has seized the Court
in respect of a dispute it has with France over, inter alia, the immunity of its
Minister of the Interior and of its head of state in respect of criminal proceed-
ings in France based on allegations of crimes against humanity and torture com-
mitted in the Congo.⁴²⁰ These allegations were brought to the attention of the
French judiciary by a complaint filed on 5 December 2001 on behalf of several
human rights organizations. On the basis of this complaint a French investigat-
ing judge has initiated an investigation. The Congo further claims that when
its head of state was on an official visit to France, the investigating judge issued
a warrant to police officers ‘instructing them to take testimony from him’.⁴²¹
France disputes this latter allegation, stating that the investigating judge sought
to obtain evidence from the Congolese head of state through the diplomatic
channel—a procedure that is laid down in article 656 of the French Code of
Criminal Procedure.
On the basis of these facts, Congo alleges two separate violations of immunity
rules. In the first place, it alleges ‘violation of the principle that a State may not,
in breach of the principle of sovereign equality among all members of the United
Nations, as laid down in Article 2, paragraph 1, of the Charter of the United
Nations, exercise its authority on the territory of another State . . . by arrogating to
itself the power to prosecute and try the Minister of the Interior of a foreign State
for crimes allegedly committed in connection with the exercise of his powers for
the maintenance of public order in his country’. Second, it alleges ‘violation of the
criminal immunity of a foreign Head of State—an international customary rule
recognized by the jurisprudence of the Court’.⁴²² Although it is not stated with so
many words, it may be clear that the first allegation asks the Court to inquire into
the rule of functional immunity of foreign state officials while the second allega-
tion sees to the rule of personal immunity of foreign heads of state.
It is unlikely that the Court will depart from its decision in the Arrest Warrant
case as far as the second allegation is concerned. However, it may shed some
light on the controversies that have developed in doctrine following that deci-
sion. The question that has arisen in respect of the criminal proceedings against
the Minister of the Interior is for the first time before the learned judges of the
Court. It will be interesting to see how the Court defines the legal issue. Will
it acknowledge the separateness of functional and state immunity? And, will it
agree with this author that no immunity issue arises when allegations of crimes
⁴²⁰ The Court is also asked to speak out on the requirements for the exercise of universal jurisdic-
tion—the question it skilfully curbed in the Arrest Warrant case. Cf Certain Criminal Proceedings
in France (Republic of the Congo v France) available at <http://www.icj-cij.org>.
⁴²¹ Certain Criminal Proceedings in France (Republic of the Congo v France) (Provisional meas-
ures) (2003) § 16, available at <http://www.icj-cij.org>.
⁴²² ibid § 1.
against international law are at issue? Should this be so, the Court will have to deal
with the question—identified but not comprehensively dealt with in this study
in section 2.3.1.4 above—whether in the absence of immunity barriers national
courts may still violate aspects of the principle of the sovereign equality of states
when proceedings against a foreign state official require a decision on the (il)
legality of activity or policy of the home state.
6
The Immunity of States and Their Officials
in Light of the Fundamental Rights of
Individuals under International Law
1 Introduction
The developments in international law over the past sixty years or so reflect a
paradigm shift. International law is no longer limited to the regulation of the
behaviour of states as against other states but extends to the regulation of behav-
iour of states as against their own citizens and within their own borders. Jenks
noted already in 1958 that ‘the emphasis of the law is increasingly shifting from
the formal structure of the relationship between States and the delimitation of
their jurisdiction to the development of substantive rules on matters of common
concern vital to the growth of an international community and to the individ-
ual well-being of the citizens of its member States’.¹ The shift from the classical
‘international law of co-existence’ to an ‘international law of cooperation’ has
continued ever since, with the developments in international human rights law
as a conspicuous example.² While in the beginning of the twentieth century the
mistreatment by a state of its own citizens—even on the scale of the Armenian
massacres—was commonly agreed to be a matter within the domestic jurisdic-
tion of the state, today the protection of human rights is considered ‘a matter of
priority for the international community’.³
Human rights in the sense of rights of individuals as against states did not as
such feature in the pre-1945 international legal order. Of course, the concept of
human rights can be traced back to the 1215 Magna Carta, the philosophical
writings of Locke and Rousseau, and the 1776 US Constitution and the 1789
French Déclaration des Droits de l’Homme et du Citoyen. The natural law ter-
minology often used in respect of these rights—the US Constitution speaks of
¹ CW Jenks, The Common Law of Mankind (1958) 17. Cf also PC Jessup, A Modern Law of
Nations (1948) 2; W Friedmann (1964).
² W Friedmann, ibid 60.
³ Preamble to the Vienna Declaration and Programme of Action of the World Conference on
Human Rights (adopted by 171 states on 23 June 1993, UN Doc A/CONF.157/23, 12 July 1993).
Cf on the Armenian massacres JL Brierly, ‘Matters of Domestic Jurisdiction’ (1925) 6 BYIL 8, 18.
‘inalienable rights’, the Déclaration of ‘les droits naturels, inaliénables et sacrés
de l’homme’—is irrelevant however for the question of whether these rights form
part of international law.⁴ Only since states agreed to make these rights a matter
of international concern can we speak of international human rights law. The
Second World War is a watershed in this respect. When the scale and horror of
the Nazi atrocities came to light, disbelief, shock, and anger united the world.
Scholars argued in favour of an international Bill of Rights and states agreed that
the protection of these rights could no longer be left to the whims of individual
states.⁵
Before that time there had been occasional attempts to regulate state behav-
iour that causes human suffering and to ensure protection of interests of human
beings within the international legal system. The most prominent example is
early international humanitarian law—jus in bello, the law of armed conflict, or
the law of war as it was initially termed—that set out to regulate state conduct in
interstate warfare and was briefly discussed in the previous chapter. These rules
did not, however, grant rights to individuals. The individual was, to use the words
of Lauterpacht, ‘an object of international compassion’ rather than ‘a subject of
international right’.⁶ Another glaring difference with modern human rights law
was that the rules only applied in times of war, not in times of peace, and more-
over only in interstate conflict, not in internal conflict. With the very limited
exception of certain conventional obligations to respect minorities and to abolish
slave trade and slavery it can be safely stated that a state’s treatment of its own
nationals was a matter exclusively within the domestic jurisdiction of that state
and as such outside the realm of international law.⁷
This changed in the wake of the Second World War. Human rights were allo-
cated a prominent position in the Charter of the United Nations, signed by 44
states in San Francisco on 26 June 1945.⁸ Article 1 of the Charter states that one
of the purposes of the United Nations is ‘[t]o achieve international co-operation
in solving international problems of an economic, social, cultural or humanitar-
ian character, and in promoting and encouraging respect for human rights and
⁴ Cf also the preamble of the Universal Declaration of Human Rights (General Assembly
Resolution 217A of 10 December 1948), that refers to ‘the inherent dignity and of the equal and
inalienable rights of all members of the human family’ and the preamble of the above-mentioned
1993 Vienna Declaration Programme of Action of the World Conference on Human Rights that
refers to ‘all human rights derive from the dignity and worth inherent in the human person’.
⁵ See for early advocates of an international bill of rights eg: H Lauterpacht, An International
Bill of the Rights of Man (1945); HG Wells, The Rights of Man (1940); HG Wells, The New World
Order (1940) 139–43; Q Wright, ‘Human Rights and World Order’, in The Third Report of the
Commission to Study the Organization of Peace (1943); American Law Institute, Statement of
Essential Human Rights (1945), reproduced in American Law Institute, Seventy-Fifth Anniversary
1923–1998 (1998) 261.
⁶ H Lauterpacht, International Law and Human Rights (1950) 4.
⁷ L Oppenheim, International Law, A Treatise (1905) i 346–7; JL Brierly, The Law of Nations,
An Introduction to the International Law of Peace (6th edn, 1963) 291–2.
⁸ Charter of the United Nations (1945), reproduced in I Brownlie, Basic Documents in
International Law (5th edn, 2002) 2.
The Immunity of States and Their Officials and Fundamental Rights 303
for fundamental freedoms for all without distinction as to race, sex, language, or
religion’ and a joined reading of article 55 and 56 establishes the duty of mem-
ber states to secure ‘universal respect for, and observance of, human rights and
fundamental freedoms’.⁹ Within the context of the United Nations the rights of
individuals as against the state were articulated in non-binding instruments (like
the 1948 Universal Declaration of Human Rights, the 1968 Proclamation of
Tehran of the International Conference on Human Rights, and the 1993 Vienna
Declaration and Programme of Action of the World Conference on Human
Rights, and countless GA and CS Resolutions¹⁰) and in binding instruments
(like the 1966 International Covenant on Civil and Political Rights (ICCPR), and
the 1966 International Covenant on Economic, Social and Cultural Rights¹¹).
In addition, conventions and declarations have been adopted on the regional
level. The European Convention on Human Rights and Fundamental Freedoms
(ECHR), the American Convention on Human Rights and the African Charter
on Human and Peoples’ Rights all oblige member states to respect the classical
human rights.¹²
The Second World War also gave an impetus to international humanitarian
law. With the adoption of the four Geneva Conventions in 1949—today ratified
by over 190 states—the discipline has more than firmly established itself. With
a large part of the rules now applying in internal conflicts as well, international
humanitarian law has moreover acquired a genuinely humanitarian character.
International human rights law and international humanitarian law have
without doubt changed the outlook of the international legal order. The trad-
itional bilateral approach to rights and obligations has been complemented by
⁹ Cf Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion), ICJ
Reports 1971 16, 56–7 for the interpretation of these articles as establishing legal obligations in
spite of the somewhat vague language used Cf also E Schwelb, ‘The International Court of Justice
and the Human Rights Clauses of the Charter’ (1972) 66 AJIL 337.
¹⁰ Universal Declaration of Human Rights, GA Resolution 217 A (III) (1948), reprinted in
I Brownlie and GS Goodwin-Gill (eds), Basic Documents on Human Rights (4th edn, 2002) 68;
Proclamation of Teheran, Final Act of the International Conference on Human Rights, Teheran
(1968), UN Doc A/CONF32/41 at 3 (1968); Vienna Declaration and Programme of Action of the
World Conference on Human Rights (1993), UN Doc A/CONF157/23 (1993); and many declar-
ations of the UN General Assembly and the Security Council, cf I Brownlie and GS Goodwin-Gill
(eds), ibid.
¹¹ International Covenant on Civil and Political Rights (1966) 999 UNTS 171, reprinted in
I Brownlie and GS Goodwin-Gill (eds), ibid, 182; International Covenant on Economic, Social
and Cultural Rights (1966) 993 UNTS 3, reprinted in I Brownlie and GS Goodwin-Gill, 172.
¹² European Convention for the Protection of Human Rights and Fundamental Freedoms
(1950), reprinted in I Brownlie and GS Goodwin-Gill, ibid, 398; American Convention on Human
Rights (1969), reprinted in I Brownlie and GS Goodwin-Gill, ibid, 671; African Charter on
Human and Peoples’ Rights (1981), reprinted in I Brownlie and GS Goodwin-Gill, ibid, 728. Also
more specialized treaties are concluded on a regional level; like eg the European Convention for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1987), reprinted in
I Brownlie and GS Goodwin-Gill, ibid, 493.
multilateral thinking in terms of community interest.¹³ In its 1951 Advisory

Opinion in the Genocide case the ICJ commented that the purpose of the 1948
Genocide Convention ‘is purely humanitarian and civilising . . . the contract-
ing States do not have any interests of their own; they merely have . . . a common
interest’.¹⁴ In a similar vein, the European Court of Human Rights has empha-
sized on several occasions that the European Convention creates ‘over and above
a network of mutual, bilateral undertakings, objective obligations which . . . bene-
fit from a “collective enforcement”.’¹⁵
The protection of community interests required rethinking of some of the
parameters of the international legal system. The concepts ‘ jus cogens norms’ and
‘erga omnes obligations’ can be seen to accommodate the secondary rules of the
international legal order to the reality of rules protecting community interests.
If the obligations under human rights law could be escaped unilaterally or in
agreement with other states the interests of the community would be vulnerable
to the quirks of individual states. The concept of jus cogens was first recognized by
states in the 1969 Vienna Convention on the Law of Treaties.¹⁶ Article 53 of the
convention reads:
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of gen-
eral international law. For the purposes of the present Convention, a peremptory norm
of general international law is a norm accepted and recognised by the international com-
munity of States as a whole as a norm from which no derogation is permitted and which
can be modified only by a subsequent norm of general international law having the same
character.
This provision is complemented by article 64 of the Convention that reads as
follows:
If a new peremptory norm of general international law emerges, any existing treaty which
is in conflict with that norm becomes void and terminates.
Although the idea of peremptory norms in the international legal system was the
subject of fierce debate at the Convention,¹⁷ and has since received many critical
¹³ Cf S Rosenne, ‘Bilateralism and Community Interest in the Codified Law of Treaties’ in

W Friedmann et al (eds), Transnational Law in a Changing Society: Essays in Honor of Philip C Jessup
(1972) 202; B Simma, ‘Bilateralism and Community Interest in the Law of State Responsibility’
in Y Dinstein and M Tabory (eds), International Law at a Time of Perplexity—Essays in Honour of
Shabtai Rosenne (1989) 821; B Simma, ‘From Bilateralism to Community Interest in International
Law’ (1994-VI) 250 RdC 217.
¹⁴ Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide
(Advisory Opinion), ICJ Reports 1951 15, 23.
¹⁵ Ireland v United Kingdom Series A–25; 2 EHRR 25, 103 (ECHR, 1978) § 239.
¹⁶ Vienna Convention on the Law of Treaties (1969), 1155 UNTS 331. Cf also the Vienna
Convention on the Law of Treaties between States and International Organizations or Between
International Organizations (1986), UN Doc A/Conf 129/15 (1986), art 53.
¹⁷ Cf J Sztucki, Jus Cogens and the Vienna Convention on the Law of Treaties, a Critical Appraisal
(1974).
reviews in doctrine,¹⁸ it is now well settled that international law knows a group
of core norms from which no derogation is possible—also termed ‘the public
order of the international community’.¹⁹ The notion is recognized by the ICJ,²⁰
other international courts and tribunals,²¹ as well as by national courts dealing
with questions of international law.²²
The question which norms qualify as such is much more controversial. The
statement of the ILC in the comment to its 1966 Draft Convention that ‘there is
no simple criterion by which to identify a general rule of international law as hav-
ing the character of jus cogens’ still holds true today.²³ Some have argued in favour
of a broad interpretation so that the concept covers human rights in general.²⁴
But most agree that only core norms of human rights are included. The German
Bundesverfassungsgericht stated in 1965 that ‘[t]he quality of such peremptory
norms will only be attributed to those legal rules, deeply rooted in the legal con-
viction of the community of States, which are indispensable for the existence of
international law and an international legal order and the observance of which
can be demanded by all members of the community of States.’²⁵ This is reflected
in the words of Crawford who described the category of norms as ‘those substan-
tive rules of conduct that prohibit what has come to be seen as intolerable because
¹⁸ Cf especially P Weil, ‘Towards Relative Normativity in International Law?’ (1983) 77 AJIL

413. Cf moreover G Schwarzenberger, ‘International Jus Cogens?’ (1965) 43 Texas Law Review
455; M Virally, ‘Réflexions sur le “jus cogens” ’ (1966) 12 AFDI 5; T Meron, ‘On a Hierarchy
of International Human Rights’ (1986) 80 AJIL 1; A Weisburd, ‘The Emptiness of the Concept
of Jus Cogens, as Illustrated by the War in Bosnia-Herzegovina’ (1995) 17 Michigan Journal of
International Law 1.
¹⁹ H Mosler, ‘The International Society as a Legal Community’ (1974–IV) 140 RdC 3, 33. In
his first report on the Law of Treaties H Lauterpacht referred in this regard to ‘such overriding prin-
ciples of international law which may be regarded as principles of international public policy (ordre
international public)’, YBILC 1953 ii 90, 90. See for other definitions J Sztucki (1974) 77. Cf for
support in doctrine eg: I Brownlie 488–90; R Jennings and A Watts (1992) i 7–8; L Hannikainen,
Peremptory Norms (Jus Cogens) in International Law (1988); A Verdross, ‘Jus Dispositivum and Jus
Cogens in International Law’ (1966) 60 AJIL 55.
²⁰ See Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v
Rwanda) (2006), inter alia § 64, available at <http://www.icj-cij.org>. Cf also Case Concerning
Military and Paramilitary Activities in and against Nicaragua, (ICJ, 1986) 100; ICJ, Reservations to
the Convention on the Prevention and Punishment of the Crime of Genocide (ICJ, 1951) 23–4; ICJ,
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), ICJ Reports 1996 225, 257. Cf
GA Christenson, ‘The World Court and Jus Cogens’ (1987) 81 AJIL 93; J Sztucki (1974) 12–22; FA
Mann (1973) 399.
²¹ Cf eg Al-Adsani v United Kingdom 273 (ECHR, 2001) (further referred to as Al-Adsani);
Prosecutor v Furundžija (ICTY, 1998) § 153.
²² Cf eg Assessment of Aliens for War Taxation Case 43 ILR 3 (Germany, Federal Constitutional
Court, 1965) 8–9; and recently R v Bow Street Metropolitan Stipendiary Magistrate and others,
ex p Pinochet Ugarte (Amnesty International and others intervening) (UK, 1999) (further referred to
as Pinochet no 3).
²³ YBILC 1966 ii 169, 247–8.
²⁴ Cf eg Dissenting Judge Tanaka in South West Africa Cases (Ethiopia v South Africa; Liberia v
South Africa) (ICJ, 1966) 298.
²⁵ Assessment of Aliens for War Taxation Case (Germany, 1965) 8–9.
of the threat it presents to the survival of States and their peoples and the most
basic human values.’²⁶ Brownlie writes that ‘[t]he least controversial examples of
the class are the prohibition of the use of force, the law of genocide, the principle
of racial non-discrimination, crimes against humanity, and the rules prohibiting
trade in slaves and piracy’.²⁷ For the purposes of this study the question which
norms qualify under the category of jus cogens is not terribly important. Rather,
the focus is on what the consequences of such categorization are, or: what is the
scope of application of the concept of jus cogens?
Also the traditional rules on accountability, responsibility and enforcement as
applicable to interstate relations based on essentially reciprocal rights and obli-
gations fit community thinking uncomfortably. Not surprisingly many human
rights instruments not only lay down the standards to which states commit them-
selves but provide for specific control and implementation mechanisms. State
parties to the ECHR, for example, have a right to complain of violations of the
Convention by any other state party irregardless of the nationality of the alleged
victim as ‘an alleged violation of the public order of Europe’.²⁸ The violation com-
plained of hence may concern a law or practice in abstracto as well as a concrete
violation ‘without having to justify an interest deriving . . . from the fact that a
measure they complain of has prejudiced one of their own nationals’.²⁹
When no special treaty-based enforcement mechanisms are available multi-
lateral rules are likely to remain ineffective. The South West Africa cases con-
spicuously evidenced the need to rethink traditional rules on standing in the
law of state responsibility.³⁰ The cases concerned applications filed by Ethiopia
and Liberia asking the ICJ to affirm the status of South West Africa as a terri-
tory under mandate and to declare that South Africa’s administration of South
West Africa violated several articles of the Mandate Agreement and article 22
of the Covenant of the League of Nations, in particular because of the practice
of Apartheid. South Africa argued, inter alia, that Ethiopia and Liberia had no
standing to pursue the claim since their legal rights or interests were not at issue.
While the ICJ in the 1962 decision on preliminary questions had rejected this
argument,³¹ the 1966 judgment effectively overturned this decision and the
merits of the case were never decided.³² It was considered that applicants’ claim
of locus standi ‘amounts to a plea that the Court should allow the equivalent of
²⁶ J Crawford, The International Law Commission’s Articles on State Responsibility, Introduction,

Text and Commentaries (2002) 246.
²⁷ I Brownlie (2003) 488–9.
²⁸ Austria v Italy (Pfunders case) 4 Yearbook on the European Convention on Human Rights
1961 116 (EComHR, 1961) 140.
²⁹ Ireland v United Kingdom (ECHR, 1978) 103, § 239.
³⁰ South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Preliminary
Objections), ICJ Reports 1962 319; South West Africa Cases (Ethiopia v South Africa; Liberia v South
Africa) (ICJ, 1966).
³¹ South West Africa Cases (ICJ Reports 162) 335–42. Cf especially the Separate Opinion of
Judge Jessup, 387, 424–433.
³² South West Africa Cases (1966).
an “actio popularis”, or right resident in any member of a community to take legal
action in vindication of a public interest. But, although a right of this kind may
be known to certain municipal systems of law, it is not known to international
law as it stands at present.’³³
In the Barcelona Traction case the ICJ intimated that different rules on stand-
ing did indeed apply when obligations of states towards the international com-
munity as a whole are at issue. Reaffirming the nationality of claims requirement
in the field of diplomatic protection the Court considered in a famous obiter
dictum that
an essential distinction should be drawn between the obligations of a State towards the
international community as a whole, and those arising vis-à-vis another State in the field
of diplomatic protection. By their very nature the former are the concern of all States. In
view of the importance of the rights involved, all States can be held to have a legal interest
in their protection; they are obligations erga omnes.
Such obligations derive, for example, in contemporary international law, from the
outlawing of acts of aggression, and of genocide, as also from the principles and rules
concerning the basic rights of the human person, including protection from slavery and
racial discrimination.³⁴
While the exercise of diplomatic protection is restricted by the nationality-of-
claims principle, the Court considered that states have a legal interest in the pro-
tection of certain core norms regarding the treatment of individuals, even when
the (possible) victims of a certain (impending) violation of these norms are not
their nationals.³⁵
Although the Court focused on obligations rather than on the category of
norms they derive from, it is obvious that it had the most fundamental norms
of international law in mind when it held that all states have a legal interest in
their protection. As the Court held, erga omnes obligations arise when in view of
the importance of the rights involved all states can be held to have a legal interest
in their protection.³⁶ It is often maintained that jus cogens norms and obligations
³³ Ibid 47. Cf for criticism on the case eg J Dugard, ‘The Court’s Judgment and the 1966 South
West Africa Cases, Second Phase’ (1966) 83 SALJ 429; R Higgins, ‘The International Court
and South West Africa: The Implications of the Judgment’ (1966) 42 International Affairs 575;
E Schwelb, ‘The Actio Popularis and International Law’ (1972) 2 Israel Yearbook of Human Rights
46. Cf in general J Dugard (ed), The South West Africa/Namibia Dispute, Documents and Scholarly
Writings on the Controversy between South Africa and the United Nations (1973).
³⁴ The Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (ICJ, 1970) 32.
³⁵ Often the dictum is held to mean that the nationality of claims principle does not apply
when certain core norms of international law are violated. However, the dictum makes clear that
states would not be exercising diplomatic protection with regard to non-nationals when invoking
their legal interest, but rather would be protecting the rights of the international community as a
whole.
³⁶ Cf also East Timor (Portugal v Australia) (Judgment), ICJ Reports 1995 90, 102, § 29:
‘Portugal’s assertion that the right of peoples to self-determination . . . has an erga omnes character,
is irreproachable. The principle of self-determination . . . is one of the essential principles of contem-
porary international law’.
erga omnes are sides of the same coin. Bassiouni, for example, commented that
‘[j]us cogens refers to the legal status that certain international crimes reach, and
obligations erga omnes pertains to the legal implications arising out of a certain
crime’s characterization as jus cogens.’³⁷ However, the Court’s dictum clearly
does no more than establishing that a certain degree of importance of rights is
a sufficient condition for the obligations deriving from them to apply erga omnes
but cannot sustain an argument that makes the link a necessary one. Rather it
seems that obligations may be owed erga omnes either because of their intrinsic
multilateral nature or because the importance of the rights involved gives them
a multilateral aspect—the obligations owed to the international community as a
whole; even though a substantial part of erga omnes obligations will fit both cat-
egories.³⁸ Clearly, any link between jus cogens norms and erga omnes obligations is
limited to the latter category.
The question to be answered in this chapter is how the development of inter-
national human rights law relates to the immunity of states and their officials
under international law. Since the rule of functional immunity regards non-
personal responsibility and is related to the rule of state immunity as far as the
presumption of authority is concerned, our inquiry focuses on state immunity
and the personal immunity of diplomatic agents and foreign heads of state.
The tension between the two bodies of law is twofold. In the first place, immun-
ity rules may conflict with fundamental rights of individuals. It is, in fact, not
surprising that the increase of criticism on the absolute state immunity rule coin-
cided with the increased attention for human rights after the Second World War.
It was repeatedly noted that the grant of immunity to foreign states in respect of
claims that were otherwise within the competence of the court denied justice to
private individuals.³⁹ In 1951 Lauterpacht pointedly phrased the tension in the
following terms:
At a period in which in enlightened communities the securing of the rights of the
individual—in all their aspects, against the state has become a matter of special and sig-
nificant effort, there is no longer a disposition to tolerate the injustice which may arise
whenever the state—our own state or a foreign state—screens itself behind the shield of
immunity in order to defeat a legitimate claim.⁴⁰
³⁷ MC Bassiouni, ‘International Crimes: Jus Cogens and Obligatio Erga Omnes’ (1996) 25
Law & Contemporary Problems 63, 68. Cf also A De Hoogh, Obligations Erga Omnes and
International Crimes, A Th eoretical Inquiry into the Implementation and Enforcement of the
International Responsibility of States (1996) 55.
³⁸ Several scholars have noted that erga omnes obligations could exist which derive from norms
not of a jus cogens character, cf T Meron, Human Rights Law-Making in the United Nations (1987)
187; M Byers, ‘Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules’
(1997) 66 Nordic Journal of International Law 211, 237.
³⁹ Cf ch 2 § 2.3.1 above.
⁴⁰ H Lauterpacht (1951) 235.
It could be argued a contrario that under a restrictive approach the grant of state
immunity does not amount to a denial of justice. This silent assumption was
challenged only some fifty years later when three individuals filed three distinct
complaints before the European Court of Human Rights (ECHR) arguing that
the dismissal of their claim against foreign states on the basis of the rule of state
immunity by the national courts of the United Kingdom and Ireland respectively
had violated their right of access to court under article 6.1 of the ECHR. One of
these cases was that of Al-Adsani v United Kingdom.⁴¹ Mr Al-Adsani, both a UK
and Kuwaiti national, had attempted to initiate proceedings before the UK courts
in order to obtain damages from the government of Kuwait for acts of torture
allegedly committed by Kuwaiti security forces on Kuwaiti territory. Al-Adsani
claimed to have been subjected to various forms of severe torture by security
guards in retaliation of a personal conflict with a relative of the Emir of Kuwait.
The UK courts granted state immunity to Kuwait and refused to hear his case. The
Strasbourg Court was almost unanimous in its decision that article 6.1 is never
violated when the immunity rule applied reflects a rule of international law.
A second, essentially distinct perspective on the research question focuses on
the right of the respondent state (official) in view of the nature of the disputed
acts. Whereas before it was debated whether the grant of state immunity or diplo-
matic immunity violated human rights, in the 1980s the focus of debate became
whether immunity was available when human rights had been violated.⁴²
In contrast with international law rules under the traditional law of co-existence
material state practice is not the basis of international human rights law. The law sets
standards of behaviour, it does not necessarily reflect the actual behaviour of states.
In fact, the violation of human rights norms is rife—as Röling bitterly noted ‘the
road to hell is paved with good conventions’.⁴³ While some international human
rights instruments allow individuals to complain of the violation of their rights on
the international level, it is fair to say that victims of human rights violations are in
principle dependent on national courts for the enforcement of the rights ensured
to them on the international level. Since redress in the courts of the state that has
allegedly violated the rights is often illusory victims have started to rely on the con-
cept of universal jurisdiction as developed in criminal law to instigate proceedings
for damages in the national courts of foreign states—in US courts in particular.⁴⁴
⁴¹ Al-Adsani. The other two cases were Fogarty v United Kingdom (ECHR, 2001); McElhinney v
Ireland (ECHR, 2001).
⁴² It should be noted that the argument that there is no state immunity in respect of particular
serious violations of international law had already been advanced in De Haas v De Staat Indonesië NJ
1962, No 74 (The Netherlands, Hoge Raad, 1962). The court rejected the argument without reasons.
⁴³ BVA Röling, ‘The Law of War and the National Jurisdiction since 1945’ (1960–II) 100 RdC
323, 445.
⁴⁴ Th is study does not engage the question whether individuals can bring claims in respect of
violations of humanitarian law. It is irrelevant for the purposes of our study whether the cases in
which this second perspective on the research question presents itself are necessarily based on inter-
national human rights law or whether norms of international humanitarian law may underlie these
cases as well.
The case of Filartiga v Peña-Irala discussed in chapter 5 of this study illustrates

this development.⁴⁵ The case launched the Alien Tort Claims Act—passed into
oblivion after its enactment in 1789—into the modern world of transnational
human rights litigation. The Act provides that ‘[t]he district courts shall have
original jurisdiction of any civil action by an alien for a tort only, committed in
violation of the law of nations or a treaty of the United States.’⁴⁶ The consider-
ation that international should be interpreted ‘not as it was in 1789, but as it has
evolved and exists among the nations of the world today’⁴⁷ opened up the US
judicial system to a wide range of extraterritorial conflicts. The US courts have for
example been asked to rule on allegations of torture and rape during the war in
the former Yugoslavia orchestrated by the Serbian leader Karadić;⁴⁸ allegations
of torture of prisoners in Ethiopia;⁴⁹ allegations of human rights violations com-
mitted by the former President of the Philippines during his term of office;⁵⁰ and
allegations of human rights abuses committed in furtherance of a gas pipeline
project in Burma.⁵¹ The observation that ‘[a]s a moth is drawn to the light, so is a
litigant drawn to the United States’⁵² has proved particularly apposite in respect
of transnational human rights litigation.⁵³ The US Supreme Court has admit-
tedly—to keep with the metaphor—dimmed the light somewhat with its 2004
decision in the Alvarez-Machain case. It decided that the ATCA only applies to a
narrow class of international norms that can be established with sufficient speci-
fity.⁵⁴ However, with the door—as the court put it—‘ajar but subject to vigilant
doorkeeping’⁵⁵ the light keeps shining through.
When victims of human rights abuse abroad tried to sue foreign states under
the Act they had to find a way to get round the state immunity defence. They
tried—without success—to squeeze their cases in the terms of the territorial tort
⁴⁵ Filartiga v Peña-Irala (US, 1980).

⁴⁶ 28 USC § 1350 (1982), originally the Judiciary Act of 1789, ch. 20 § 9 (b), 1 Stat 73, 77.
⁴⁷ Filartiga v Peña-Irala (US, 1980) 881, citing Ware v Hylton 3 US 199 (US, S Ct, 1796).
⁴⁸ Kadic v Karadžić (US, 1995).
⁴⁹ Abebe-Jira v Negewo 72 F 3d 844 (US, Ct of Apps (11th Cir), 1996).
⁵⁰ eg Hilao v Marcos (US, 1994).
⁵¹ Doe v UNOCAL 963 F Supp 880 (US, DC for the Central District of California, 1997); 110
F Supp 2d 1294 (2000); and 395 F 3d 932 (Ct of Apps (9th Cir), 2002).
⁵² Smith Kline and French Laboratories Ltd. v Bloch [1983] 2 All ER 72 (UK, CA, 1983) 74.
⁵³ In 1992 the TVPA was enacted to remedy the gap left by the ATCA as regards the protection
of US nationals. Section 2 of the Act provides, in part, as follows: (a) Liability—An individua1
who, under actual or apparent authority, or colour of law, of any foreign nation—
(1) subjects an individual to torture shall, in a civil action, be liable for damages to that individ-
ual; or
(2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to
that individual’s legal representative, or to any person who may be a claimant in an action for
wrongful death.
⁵⁴ Sosa v Alvarez-Machain (US, 2004), cf ch 5 § 1 above.
⁵⁵ ibid 1402.
exception or the commercial act exception to state immunity,⁵⁶ but also argued
on principle that there is no immunity for human rights violations. The argu-
ments rely not on the substantive human rights provisions but rather on the insti-
tutional and conceptual changes in the international legal order brought about
by international human rights law. Do immunity rules apply in respect of viola-
tions of jus cogens norms and erga omnes obligations?
Since the European Court of Human Rights regarded the international law
character of state immunity decisive for the question of whether the right of
access of court is violated the controversy between the parties focused on the
requirements of international law. Al-Adsani argued that international law did
not oblige the UK to grant immunity to Kuwait because the rule of state immun-
ity is trumped by the jus cogens norm that prohibits torture. The Court rejected
the argument. It did concede that the acts complained of in the domestic pro-
ceedings can properly be categorized as torture within the meaning of article 3 of
the Convention.⁵⁷ And it moreover conceded that the right to be free from tor-
ture is a fundamental value of democratic society permitting no exception in any
circumstances.⁵⁸ It concluded however that
acts of torture are alleged.⁵⁹
⁵⁶ Cf for the use of the territorial tort exception in human rights cases eg C Schreuer, ‘The Impact
of International Institutions on the Protection of Human Rights in Domestic Courts’ (1978) 4 Israel
Yearbook of Human Rights 60, 61; CH Schreuer (1988) 61; A Bianchi, ‘Overcoming the Hurdle of
State Immunity in the Domestic Enforcement of International Human Rights’ in B Conforti and
F Francioni (eds), Enforcing International Human Rights in Domestic Courts (1997) 405, 427. The
territorial tort exception is however usually of no avail because ‘[t]he lingering effects of a personal
injury suffered overseas can not be sufficient to satisfy the direct effect requirement of the FSIA’,
Princz v Federal Republic of Germany 26 F 3d 1166 (US, Ct of Apps for the District of Columbia
Circuits, 1994) 1173. Cf also a.o. Jafari v Islamic Republic of Iran 539 F Supp 209 (US, DC for the
Northern District of Illinois, 1982); McKeel v Islamic Republic of Iran 722 F 2d 582 (US, Ct of Apps
(9th Cir), 1983); Persinger v Islamic Republic of Iran 729 F 2d 835 (US, Ct of Apps for the District
of Columbia Circuits 1984); Berkovitz v Islamic Republic of Iran 735 F 2d 329 (US, Ct of Apps (9th
Cir), 1984); Frolova v Union of Soviet Socialist Republics 761 F 2d 360 (US, Ct of Apps (7th Cir),
1985); Martin v Republic of South Africa 836 F 2d 91 (US, Ct of Apps (2nd Cir), 1987); Denegri v
Republic of Chile WL 91914 (1992) (US, DC for the District of Columbia, 1992); Cicippio v
Islamic Republic of Iran 30 F 3d 164 (US, Ct of Apps for the District of Columbia Circuits, 1994);
Bouzari and Others v Islamic Republic of Iran 124 ILR 428 (Canada, Ontario Superior Court of
Justice, 2002), and the 2004 decision of the Court of Appeal for Ontario in that case, available at
<http://www.ontariocourts.on.ca/decisions/2004/june/bouzariC3829.htm> 5.
For the commercial act exception cf eg Nelson v Saudi Arabia 507 US 349 (US, S Ct, 1993); Garb v
Poland 207 F Supp 2d 16 (US, DC for the Eastern District of New York, 2002) 37; Hwang Geum
Joo v Japan 172 F Supp 2d 52 (US, DC for the District of Columbia, 2001), affirmed Ct of Apps for
the District of Columbia Circuits, 332 F 3d 679 (2003).
⁵⁷ Al-Adsani 290, § 58.
⁵⁸ ibid § 59.
⁵⁹ ibid 290, § 61.
The Court referred to a report of the Working Group on Jurisdictional Immunities

of States and their Property of the International Law Commission that acknowl-
edged that
while national courts had in some cases shown some sympathy for the argument that
States were not entitled to plead immunity where there had been a violation of human
rights norms with the character of jus cogens, in most cases (including those cited by
the applicant in the domestic proceedings and before the Court) the plea of sovereign
immunity had succeeded.⁶⁰
Eight of the seventeen judges dissented however on this pivotal part of the deci-
sion. They agreed with Al-Adsani that the rule of state immunity could not be
invoked to avoid the consequences of the violation of the hierarchically higher
rule that prohibits torture.⁶¹
The two perspectives approach the research question on a fundamentally dif-
ferent level. The argument that immunity rules do not apply when core human
rights have been violated is a state of the law argument. It argues that inter-
national law does not oblige states to grant state immunity or personal immunity
in such circumstances. The argument that immunity rules are incompatible with
fundamental rights of individuals is a policy argument. It does not argue what
the state of the law is but what it should be. This chapter sets out to examine the
cogency of both state of the law and policy arguments in the debate on a human
rights exception, in sections 2 and 3 respectively. The nature and the scope of the
rule of state immunity and the rule of personal immunity and the nature and
the scope of the rules and principles of international human rights law determine
the parameters of coherent legal argument.
2 State of the Law Arguments
2.1 Introduction
Does international law oblige national courts to grant immunity to a foreign state
or its officials sued in respect of allegations of serious human rights violations
committed within that state’s own territory, or within the territory of the forum
state but in the exercise of discretionary functions or as part of an armed conflict?
What is the state of international law on this question?
⁶⁰ ibid § 62, referring to the Appendix to the 1999 Report of the Working Group of the
International Law Commission on Jurisdiction Immunities of States and their Property,
annexed to the Report of the ILC on the work of its fifty-first session. Cf in similar vein the
dissenting Supreme Court judges in the Greek case of Prefecture of Voiotia v Federal Republic of
Germany (Greece, 2000).
⁶¹ Cf § 2.2 below.
Two lines of inquiry must be pursued. International human rights law may
have effect on the validity as well as the scope of immunity rules. The first line
of inquiry examines the argument that regardless of its scope the rule of state
immunity or personal immunity is invalidated by hierarchically higher jus cogens
norms of international human rights law. State practice is not determinative on
the issue since the argument operates by definition on a conceptual level. The
second line of inquiry entails more difficult questions as to the epistemology of
international law. Is the absence of state practice determinative on the question
whether a human rights exception exists?
The second inquiry therefore compels a distinction between state immunity
and personal immunity. Personal immunity rules are voluntary rules of cus-
tomary international law. Coherent arguments on the scope of the rule cannot
ignore a general and consistent state practice. The rationale of the rules is but the
material cause of the customary practice that has formed the rule. Accordingly,
the argument that a certain application of the rule is not necessary to secure the
undisturbed exercise of diplomatic activities is flawed. In the absence of support-
ing state practice arguments in favour of a human rights exception to personal
immunity rules necessarily take the form of policy arguments. Equally, the reli-
ance on the rationale of existing exceptions to the rule only supports a change of
the law; it is not determinative of change. In disregard of this contention, Gaeta
reasoned that since certain exceptions to diplomatic immunity are introduced
in order to avoid risking a denial of justice ‘[o]ne could rely upon the rationale
behind this traditional exception to the personal immunities rules in order to
establish whether there are possible exceptions to these rules in the case of inter-
national crimes’.
By reference to the denial of personal immunities to officials of a sending state
that also have the nationality of the receiving state she argued that ‘personal
immunities should not be granted when, although the State to which the organ
belongs does have jurisdiction over the crimes allegedly committed by that organ,
nevertheless the receiving State has compelling reasons to believe either that the
sending State will not prosecute the crimes . . .’⁶² This author would not accept
this argument as a state of the law argument. Rather, the risk of denial of justice
forms a policy argument for change and can ultimately be the material cause of
a new exception established in a general and consistent state practice—as will be
further argued in section 3 of this chapter.
The rule of state immunity, however, is subject to fundamentally distinct
considerations. It is undeniable that state immunity practice does not support
a human rights exception. Just two national courts have ever denied a foreign
state sued in respect of human rights violations committed within the context
of exercising state authority under international law. The Greek Supreme Court
has ordered Germany to pay damages for the human rights abuses committed
⁶² P Gaeta (2002) 986–8, quotation at 987.

by German occupation troops against the civilian population of the Greek town
of Distomo in 1944,⁶³ while the Italian Supreme Court has denied Germany
immunity in respect of a claim of an Italian citizen that was forced to work in
the German war industry during the second World War after being captured and
deported by the German occupying forces.⁶⁴ In addition several courts in the US
and the UK have expressed support for a human rights exception, but have held
to be bound by the strictures of national immunity legislation.⁶⁵
The second instance of state immunity practice that supports a human
rights exception is the 1996 US Antiterrorism and Effective Death Penalty Act
(AEDPA) that amended the FSIA to include an exception for certain human
rights violations.⁶⁶ It provides redress for US nationals who seek money damages
against a foreign state ‘for personal injury or death that was caused by an act of
torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of
material support or resources . . . for such an act if such act or provision of material
support is engaged in by an official, employee, or agent of such foreign state while
acting within the scope of his or her office, employment, or agency’. However,
the amendment only applies to countries designated ‘state sponsor of terrorism’
⁶³ Prefecture of Voiotia v Federal Republic of Germany (Greece, 2000) 202. Cf for the 1997 deci-
sion of the Court of First Instance of Leivadia, (1997) 50 Revue Hellénique De Droit International
595; and the case note by I Bantekas in (1998) 92 AJIL 765. It is noted that the decision was never
executed. The Greek Minister of Justice refused to authorize the enforcement of the decision against
the German state—a mandatory step in the enforcement process. An enforcement procedure before
the Greek courts was nevertheless started—without success. The victims of the Distomo massacre
then complained in Strasbourg that, inter alia, their rights under art 6.1 of the ECHR were vio-
lated On the reasoning set out in § 3.2.2.3 of this chapter the European Court of Human Rights
dismissed the complaint, cf Kalogeropoulou a.o. v Greece and Germany (ECHR, 2002), available
at <http://www.echr.coe.int>.
⁶⁴ Ferrini v Repubblica Federale di Germania (Italy, 2004).
⁶⁵ Cf eg Siderman de Blake v Republic of Argentina (US, 1992). Cf also Controller and Auditor
General v Davison [1996] 2 NZLR 278 (New Zealand, CA of Wellington, 1996). The ICTY has
hinted that state immunity may not be available in human rights cases although it did not explicitly
say so and its reasoning could also be limited to cases against individual state officials. It wrote:
‘a State say, taking national measures authorising or condoning torture or absolving its perpetra-
tors through an amnesty law. If such a situation were to arise, the national measures, violating
the general principle and any relevant treaty provision, would produce the legal effects discussed
above and in addition would not be accorded international legal recognition. Proceedings could be
initiated by potential victims if they had locus standi before a competent international or national
judicial body with a view to asking it to hold the national measure to be internationally unlawful;
or the victim could bring a civil suit for damage in a foreign court, which would therefore be asked
inter alia to disregard the legal value of the national authorising act.’ ICTY, Prosecutor v Furundžija
(1998) § 155.
⁶⁶ § 1605 (7) FSIA. Antiterrorism and Effective Death Penalty Act, PubLNo 104–32, 110 Stat.
1214 (1996). In the past, legislative attempts to include a state-sponsored terrorist exception had
been unsuccessful. S. 2465, 101st Cong, 2nd Sess (1990); HR 2357, 102nd Cong, 2nd Sess (1992);
HR 934, 103rd Cong, 2nd Sess (1994); S 825, HR 2363, 103rd Cong, 1st Sess (1993). When the
claims of US relatives of the victims of the bombing of Pan Am flight 103 over Lockerbie insti-
gated in US courts against the—allegedly responsible—Libyan government were dismissed on
immunity grounds the US government decided that these victims should be able to get redress in
American courts.
by the State Department at the time the act occurred. Currently five states are
so designated—Cuba, Iran, North Korea, Sudan, and Syria—and US courts
have accepted jurisdiction over several human rights claims against these
states.⁶⁷
Reliance on the absence of state practice supporting a human rights excep-
tion does not however convincingly dispose of the question. In chapter 2 it was
explained that arguments on the scope of the rule of state immunity based on
reason or logic do not necessarily exceed the parameters of accepted international
legal theory on custom ascertainment.⁶⁸ Accordingly, state of the law arguments
on a human rights exception require discussion on their merits.
Human rights-based arguments concerning the scope of the rule of state
immunity divide in two categories. It may be argued that no immunity is avail-
able for human rights violations under the traditional acta jure gestionis—acta
jure imperii reasoning, or it may alternatively be argued that no immunity is
available for human rights violations in spite of the acta jure imperii character of
the violations.
It must, at the outset, be noted that both arguments suffer from a severe form
of circularity: they contain an assumption of what is to be proved while it is
exactly the question who may undertake a legal assessment of the accuracy of this
assumption that divides opinion. The assertion that national courts may assess
whether a foreign state has violated human rights norms whenever a foreign state
has violated human rights norms is clearly unconvincing. The arguments in fact
imply that states do not enjoy immunity as against an allegation of human rights
violation. In contrast to the by now accepted exceptions to state immunity, a nega-
tive finding on the merits of a claim of jus cogens violations committed by a foreign
state within its territorial borders necessarily entails a violation of the horizontal
⁶⁷ Cf Alejandre v Republic of Cuba, 996 F Supp 1239 (US, DC for the Southern District of
Florida, 1997); Flatow v Islamic Republic of Iran (US, 1998); Rein v Socialist People’s Libyan Arab
Jamahiriya, 995 F Supp 325 (US, DC for the Eastern District of New York, 1998) and Ct of
Apps 2nd Cir, 162 F 3d 748 (1998); Cicippio v Islamic Republic of Iran, 18 F Supp 2d 62 (US,
DC for the District of Columbia, 1998); Anderson v Islamic Republic of Iran, 90 F Supp 2d 107
(US, DC for the District of Columbia, 2000); Eisenfeld v Islamic Republic of Iran, 2000 WL
1918779 (US, DC for the District of Columbia, 2000); Daliberti v Republic of Iraq, 97 F Supp
2d 38 (US, DC for the District of Columbia, 2000), and DC for the District of Columbia, 146
F Supp 2d 19 (2001); Higgins v Islamic Republic of Iran, CA No 99–377-CKK (US, DC for the
District of Columbia, 2000); Elahi v Islamic Republic of Iran, 124 F Supp 2d 97 (US, DC for
the District of Columbia, 2000); Sutherland v Islamic Republic of Iran, 151 F Supp 2d 27 (US,
DC for the District of Columbia, 2001); Jenco v Islamic Republic of Iran, 154 F Supp 2d 27 (US, DC
for the District of Columbia, 2001); Cronin v Islamic Republic of Iraq, 238 F Supp 2d 222 (US, DC
for the District of Columbia, 2002); Smith and Soulas v Islamic The Emirate of Afghanistan and Iraq
(US, 2003). Cf for overviews: SD Murphy, ‘Contemporary Practice of the United States’, (2001)
95 AJIL 132; WP Hoye, ‘Fighting Fire with . . . Mire? Civil Remedies and the New War on State-
Sponsored Terrorism’, (2002) 12 Duke Journal of Comparative and International Law 105.
⁶⁸ See ch 2 § 3.3.2.1 above. Cf for the argument that arguments of legal logic are not valid and
that state practice is necessary F De Vittor, ‘Immunità degli Stati dalla giurisdizione e tutela dei
diritti umani fondamentali’, (2002) 85 RDI 573, 587.
division of competences between national courts. The problematic nature of any

exception that is based on the nature of the rules violated rather than the activity
complained of was recognized by Goff J in his 1975 decision in the I Congreso del
Partido case. He rejected the suggestion that states are not immune when they
have violated international law because ‘the sovereign is immune from process
precisely because the domestic court will not adjudicate upon his actions’.⁶⁹
2.2 The Normative Hierarchy Theory: Voidance of the Rule

of State Immunity in View of Human Rights Law?
At times we find a state of the law argument in support of a human rights
exception that is based on the validity rather than the scope of the immunity rule.
The normative hierarchy argument portrays the problem of immunity of states
and their officials and human rights as a clash of two sets of rules. Since core
human rights norms qualify as jus cogens while the immunity rule is only a non-
peremptory norm of international law, the argument runs, the first set of rules
trumps the latter. When states or state officials have violated jus cogens norms
they can not therefore rely on state immunity to shield them from the courts.⁷⁰
The argument does not assert that the rule of state immunity and the rule of
personal immunity have changed under influence of the jus cogens concept but
reflects a straightforward reliance on the concept as hierarchical higher rules of
international law invalidating rules that are in conflict with it.
The argument was discussed in the 1992 US case Siderman de Blake v Republic
of Argentina.⁷¹ The case tells the gruesome story of an Argentinean business fam-
ily that suffered brutal torture, persecution, and illegal expropriation of their per-
sonal and business assets at the hands of the Argentinean government. Plaintiffs
asserted that Argentina did not enjoy immunity with regard to the claim based
on the torture allegations since torture qualifies as jus cogens under international
law. Although plaintiffs argued their case under the type of reasoning set out
below at the discussion of the case of Princz v Germany and related case law—the
court restated the argument as follows:
This argument begins from the principle that jus cogens norms ‘enjoy the highest status
within international law,’ and thus ‘prevail over and invalidate . . . other rules of inter-
national law in conflict with them’. The Sidermans argue that since sovereign immunity
⁶⁹ UK, Queen’s Bench Division, I Congreso del Partido (1975–77), [1978] QB 500, 532.
⁷⁰ Eg B Conforti, (2002) 253; A (1999) 237; A Bianchi (1997) 427; M Karagiannakis, ‘State
Immunity and Fundamental Human Rights’, (1998) 11 LJIL 9, 19; M Reimann, ‘A Human Rights
Exception to Sovereign Immunity: Some Thoughts on Princz v Federal Republic of Germany’,
(1995) 16 Michigan Journal of International Law 403, 421; K Bartsch and B Elberling, ‘Jus Cogens
vs State Immunity, Round Two, The Decision of the European Court of Human Rights in the
Kalaogeropoulou et al v Greece and Germany (2002)’ (2003) 4 German Law Journal, available at
<http://www.germanlawjournal.com>; A Orakhelashvili (2006) 340ff.
⁷¹ Siderman de Blake v Republic of Argentina (US, 1992).
itself is a principle of international law, it is trumped by jus cogens. In short, they argue
that when a state violates jus cogens, the cloak of immunity provided by international law
falls away, leaving the state amenable to suit.⁷²
The court proved sympathetic to the argument, acknowledging that ‘[a]s a matter
of international law [it] carries much force’.⁷³ It concluded however with regret
that the FSIA did not allow it to entertain the claim.
The plaintiff in the UK case Al-Adsani v Kuwait similarly relied on the hier-
archy of norms argument to dismiss the immunity claim of the state defendant
with regard to the torture allegations at issue.⁷⁴ The Court of Appeal rejected the
plaintiff ’s submission and refused to hear the case. The judges did not unani-
mously accept the Siderman precedent. While Stuart-Smith LJ did refer exten-
sively to the Siderman decision, he implied that there was no discrepancy between
the 1978 State Immunity Act and international law on this point. Ward LJ on the
other hand expressed support for the principle of the normative hierarchy argu-
ment. He emphasized that his decision was based on the ‘as plain as plain can be’
strictures of the SIA only.⁷⁵
Al-Adsani took his case to Strasbourg. He complained that the refusal of
the UK courts to hear his case amounted to a violation of his right of access to
court under article 6.1 ECHR. As will be explained in more detail in section
3.2 below the decision of the European Court of Human Rights came to pivot
on the scope of the rule of state immunity under international law. Al-Adsani
repeated his argument that there was no immunity under international law in
respect of torture claims since the jus cogens norm of torture trumps the rule of
state immunity.
The Court agreed with the applicant that the prohibition of torture is a per-
emptory norm of international law.⁷⁶ It did not however accept that therefore the
rule of state immunity does not apply in respect of torture allegations. It consid-
ered that
acts of torture are alleged.⁷⁷
In particular, it pointed out that the case should be distinguished from the
Pinochet case because it concerned not criminal but civil liability.⁷⁸
⁷² ibid 718. Cf n 112 below for the conflation of this argument with the non-sovereign act
argument.
⁷³ ibid.
⁷⁴ Al-Adsani v Kuwait 107 ILR 536 (UK, CA, 1996). Cf p 309 above for the facts of this case.
⁷⁵ ibid 549. Cf also Jones v Saudi Arabia and Abdul Aziz (UK, 2003), especially § 32–3.
⁷⁶ Al-Adsani 290–1, § 59–61.
⁷⁷ ibid 291, § 61.
⁷⁸ ibid.
The decision rested on a narrow majority. Eight of the seventeen judges did
embrace the normative hierarchy argument of the applicant.⁷⁹ The dissenting
opinion of Judges Rozakis and Caflisch reasoned that
The acceptance . . . of the jus cogens nature of the prohibition of torture entails that a State
allegedly violating it cannot invoke hierarchically lower rules (in this case, those on State
immunity) to avoid the consequences of the illegality of its actions. In the circumstances
of this case, Kuwait cannot validly hide behind the rules on State immunity to avoid pro-
ceedings for a serious claim of torture made before a foreign jurisdiction; and the courts
of that jurisdiction (the United Kingdom) cannot accept a plea of immunity, or invoke it
ex officio, to refuse an applicant adjudication of a torture case. Due to the interplay of the
jus cogens rule on prohibition of torture and the rules on State immunity, the procedural
bar of State immunity is automatically lifted, because those rules, as they conflict with a
hierarchically higher rule, do not produce any legal effect. In the same vein, national law
which is designed to give domestic effect to the international rules on State immunity
cannot be invoked as creating a jurisdictional bar, but must be interpreted in accordance
with and in the light of the imperative precepts of jus cogens.
The dissent moreover criticizes the distinction relied on by the majority between
criminal and civil proceedings. The distinction, it was argued,
is not consonant with the very essence of the operation of jus cogens rules. It is not the
nature of the proceedings which determines the effects that a jus cogens rule has upon
another rule of international law, but the character of the rule as a peremptory norm and
its interaction with a hierarchically lower rule. The prohibition of torture, being a rule of
jus cogens, acts in the international sphere and deprives the rule of sovereign immunity of
all its legal effects in that sphere. The criminal or civil nature of the domestic proceedings
is immaterial. The jurisdictional bar is lifted by the very interaction of the international
rules involved . . .
The Italian Supreme Court expressed support for the arguments of the minority
in the 2004 Ferrini case.⁸⁰ Although—as will be discussed in section 2.3.2.3
below—the court based its denial of immunity in that case primarily on a differ-
ent line of argumentation.
It was already argued in the introductory chapter of this study that the argu-
ments used by both sides of the debate fail to convince. The form of the argument
of the court and the substance of the argument of the dissenters is incoherent.
The court was not asked to ascertain the scope of the rule of state immunity.
Al-Adsani did not argue that the rule of state immunity had changed; he argued
that the rule was void of legal effect. The invalidation of rules that are incom-
patible with rules of a jus cogens character is a conceptual process independent of
⁷⁹ Cf the dissenting opinion of Judges Rozakis and Caflisch joined by Judges Wildhaber, Costa,
Cabral Barreto, and Vajic, ibid. Judge Loucaides expressed support for this dissent but preferred to
base his dissent on a different ground. Judge Ferrari Bravo did not state his reasons for dissenting
very clearly so only seven judges expressed express support for the argument.
⁸⁰ Ferrini v Repubblica Federale di Germania (Italy, 2004) § 9.1.
developments in state practice.⁸¹ In fact, because of the conceptual nature of the
argument it can equally be advanced in respect of personal immunity rules.⁸² A
convincing rebuttal of the argument advanced by Al-Adsani requires discussion
of its merits.
The substance of the argument is however problematic. It requires sliding from
the prohibition of certain conduct to a jurisdictional rule allowing enforcement of
that prohibition in foreign national courts. Since it is the substantive prohibition
that has jus cogens status rather than the tools that may be available under inter-
national law to enforce that prohibition, the two rules at issue in the Al-Adsani
case operate on different levels. In the absence of a clash between the two sets of
rules, the jus cogens quality of the one cannot possibly trump the other.⁸³ Rather
than arguing that jus cogens norms invalidate conflicting rules of international
law the argument implies that the violation of jus cogens norms renders all non-
peremptory rules of international law void. Not only the rule of state immunity
but all non-peremptory rules that regulate responses to violations of international
law as well as the secondary rules of invocation and establishing of state respon-
sibility would no longer apply when jus cogens rules are violated. The argument
hence exceeds the normal operation of the jus cogens concept and cannot succeed
on this basis.
The argument would only be coherent if the right of access to court—assuming
that it applies to the facts of a case—were to be of a jus cogens character. It is
generally agreed that it is not. We will see in section 3.2 below that the right of
access may be violated by immunity rules. The related argument against immun-
ity however operates on the level of policy arguments. The violation entails the
responsibility of the forum state to the private individual and may be an incentive
to change—it does not however affect the scope of the immunity rule by itself.⁸⁴
It may in addition be argued—as was done in chapter 2 of this study—that
the rule of state immunity as we know it today is a jus cogens norm avant la lettre.
⁸¹ Cf in similar terms A Orakhelashvili (2006) 344.

⁸² Cf also ch 5 § 2.2 above.
⁸³ Cf H Fox (2002) 525; A Zimmerman, ‘Sovereign Immunity and Violations of International
Jus Cogens—Some Critical Remarks’ (1995) 16 Michigan Journal of International Law 433,
437; J Bröhmer (1997) 194; C Maierhöfer, ‘Der EGMR als “Modernisierer” des Völkerrechts?
Staatenimmunität und ius cogens auf dem Prüfstand’ (2002) 29 Europäische Grundrechte
Zeitschrift 391, 397; F De Vittor (2002) 589; T Giegerich, ‘Do Damages Claims Arising from
Jus Cogens Violations Override State Immunity from the Jurisdiction of Foreign Courts?’ in
C Tomuschat and J-M Thouvenin (eds), The Fundamental Rules of the International Legal Order, Jus
Cogens and Obliogations Erga Omnes (2006) 203, 227. K Bartsch and B Elbering disagree. In their
opinion there inheres not only a right to enforcement in international human rights law but this
is right also of a jus cogens character if the original right is: ‘Jus Cogens vs State Immunity, Round
Two, The Decision of the European Court of Human Rights in the Kalaogeropoulou et al v Greece
and Germany (2002)’ (2003) 4 German Law Journal. Cf also Jones v Saudi Arabia (UK, 2006),
§ 14, § 17, § 44ff.
⁸⁴ The argument based on the right to a remedy is even weaker. Even if the right were to be of a
jus cogens character—which it is generally agreed it is not at this moment—it will only clash with
immunity rules in exceptional cases, cf § 3.3 below.
The delimitation of the essential competences of states on the basis of their sov-
ereign independence and equality is at the basis of the international legal order.
The consequence of a clash between the rule and a jus cogens rule is therefore not
self-evident—to say the least.
2.3 The Scope of the Rule of State Immunity

in View of Human Rights Law
2.3.1 A Human Rights Exception within the Rationale
of the Rule of State Immunity?
Many proponents of a human rights exception to state immunity have cast their
arguments within the parameters of the restrictive rule of state immunity. They
argue that the rationale of the rule applies poorly to human rights violations.
Before it is examined whether human rights arguments may fit the acta jure
imperii—acta jure gestionis distinction, we first examine the arguments of two
scholars that have restated the parameters of the restrictive rule in distinct terms
in order to subsequently develop their arguments within ‘traditional’ immunity
reasoning.
2.3.1.2 Bröhmer: A proposal based on the functional

sovereignty rationale
In a comprehensive study on state immunity and human rights published in
1997 the German scholar Bröhmer formulated a somewhat baffling proposal
for a human rights exception to the rule of state immunity.⁸⁵ Roughly, the pro-
posal amounts to the abolition of state immunity for isolated human rights viola-
tions while immunity for massive human rights violations is preserved. How did
Bröhmer rationalize the exception, and in particular, how did he rationalize the
distinction?
It is noted that Bröhmer purported to base his proposal on the normal require-
ments of international law in the field. It was stated at the outset that state
immunity can only be justified insofar as the exercise of jurisdiction would vio-
late the sovereignty of the foreign state. Bröhmer suggested that an examination
of existing exceptions would reveal when the exercise of jurisdiction would vio-
late foreign sovereignty and when it would not. Two criteria were identified on
which existing exceptions to immunity are arguably based: the option of a state
to engage in a certain act and the calculability of the state’s liability risk before-
hand. These criteria, he argued, should equally guide the analysis of a possible
human rights exception to immunity rules and their application ‘to governmen-
tal acts in violation of international human rights law does not support the view
⁸⁵ J Bröhmer (1997).
that such violations must be immunity protected’.⁸⁶ Bröhmer concluded that
although it is difficult to pre-calculate precisely the liability risk of intentional
torts, this is compensated by the ‘option’ criterion since ‘[v]iolations of funda-
mental human rights are marked by the fact that the violating state has full con-
trol over its actions.’⁸⁷
Interestingly enough, the author then leaves the path he had set out to follow
by proposing to distinguish between two types of human rights violations on the
basis of their nature and the quantitative effects. The distinction between ‘iso-
lated’ and ‘indiscriminate’ human rights violations is apparently devised to com-
ply with a third criterion controlling exceptions to state immunity, namely the
extent of interference with the functional sovereignty of foreign states. Bröhmer
argued that ‘individualised violations of human rights need not be immunity pro-
tected because such claims pose no real threat to the sovereignty of states whereas
mass violations of human rights should remain immunity protected because of
the devastating effects on the functional immunity of states and the threat to the
international peace of justice which could arise from such proceedings’.⁸⁸ In the
case of mass violations ‘[t]he sum of the individual damages will often exceed the
financial capacity of states and thus jeopardise their functional sovereignty.’⁸⁹
For borderline cases a procedure labelled as ‘filing of bankruptcy’ in human
rights cases was introduced: if a state proves that there are too many victims and
that the cumulative effect of their possible claims could imperil its functional sov-
ereignty, immunity should be granted.⁹⁰ On the basis of this distinction Bröhmer
proposed the following human rights exception to immunity:
A Foreign State shall not be immune from the jurisdiction of the forum State to
adjudicate
A. If the cause of action relates to death or personal injury and the act or omission,
whether governmental in nature or not, which caused the death or injury also consti-
tutes a violation of such fundamental international human rights, which are part of
the jus cogens body of international law, e.g. the prohibition of torture and extrajudi-
cial killing, and if
1. the act or omission of the Foreign State which caused the death or personal injury
was aimed at the injured or killed individual and if
2. the act or omission of the Foreign State that caused the death or personal injury
is not in violation of other norms of international law designed to protect large
groups of individuals, e.g. the prohibition of genocide and if
⁸⁶ ibid 204.
⁸⁷ ibid 200.
⁸⁸ ibid 211–12.
⁸⁹ ibid 205. It was moreover argued that since ‘[v]iolations of international law in the context of
a war are by nature directed against the enemy community and not against the individual members
of the community as such’ claims based on such violations were by definition excluded from a
human rights exception for isolated human rights violations (206).
⁹⁰ ibid 212–14.
3. the act or omission of the Foreign State which caused the death or personal injury
did not occur in the context of an armed conflict between states.
B. In exceptional circumstances a Foreign State shall be immune from the jurisdiction
of the forum State to adjudicate despite the applicability of section A.1. above
1. if the Foreign State presents a prima facie case that the exercise of jurisdiction in
this matter could lead to an unforeseeable number of similar claims in the forum
state or other states which to settle individually could seriously interfere with the
Foreign State’s ability to discharge its public functions or if
2. the Foreign State establishes to the satisfaction of the tribunal that it has submit-
ted the matter either to a respective international institution with jurisdiction to
review the allegations and provide the plaintiff with adequate compensation or to
some other effective international dispute settlement mechanism.⁹¹
This proposal—though admittedly original—contains several flaws. Even if
we accept the two criteria as premises, the internal coherency of the argument
leaves something to be desired. When the criteria underlying other exceptions to
immunity should equally apply to a possible human rights exception it remains
unclear why the functional sovereignty of the foreign state should form an add-
itional criterion when the latter type of exception is developed. Surely, the possi-
bility that the failure of an economic enterprise or, for that matter, the damages
awarded in US courts as regards individual human rights violations, exceed the
financial capacity of a small state is not unthinkable. Moreover, the reliance on
‘the functional aspect of sovereignty, i.e. the ability of states to perform their
functions and pursue their objectives, which could be threatened if the financial
resources of states had to be spent to cover liability claims incurred in various
forums all over the world’ seems to confuse immunity from jurisdiction with
immunity from execution. Bröhmer did try to link the functionality test to the
two criteria stating: ‘The higher the liability risk, the more difficult it will be to
argue that the state really opted to take that risk.’⁹² It remains unclear, however,
why a similar limitation does not apply to the commercial activity exception.
More importantly, the reasoning only serves to reveal the feeble construction on
which the proposal is based.
The problem with the proposal is in fact not as much its relative as its abso-
lute incoherency. The authority for the two criteria on which the argument is
based is flimsy. In fact, examination of state practice does not reveal that either
of them has any bearing on the restrictive theory of immunity and an argument
to the opposite would require more study to convince. Bröhmer reformulated the
rationale of the state immunity rule in complete disregard of the widely accepted
decisive criterion of the nature of the activity the court is asked to declare illegal.
Especially the ironic solution for borderline cases where a state may be granted
immunity when it proves before the court that it treated many other individuals
⁹¹ ibid 214–15. Cf for support of the proposal J-F Flauss, ‘Droit des immunités et protection
internationale des droits de l’homme’ (2000) 10 RSDIE 299, 312.
⁹² ibid 198.
in the manner complained of by the claimant evidences that the nature of the
activity engaged in by the state is not regarded relevant for the operation of the
immunity rule. The horizontal division of competences between national courts
precludes courts from exercising jurisdiction over foreign states when the claim
is based on state authority that under international law principles a state must
be able to exercise independently of and without interference by other states.
The interference with sovereignty is hence measured according to the nature of
the activity on which the claim is based rather than the intention with which the
damage was inflicted or the scale of the damages caused. The argument that the
exercise of jurisdiction over individualized human rights violations ‘has no greater
impact on the sovereignty of the defendant state than the exercise of jurisdiction
in cases concerning commercial activities of that state’⁹³ negates the essence of
the principle of non-interference in the exclusive competences of a foreign state.
Bröhmer asserted that there is no violation of the sovereignty of a foreign state if
jurisdiction is exercised over a claim against a foreign state for damages relating
to injurious behaviour not occurring in interstate-armed conflict that was aimed
at the claimant and that violated a norm protecting the individual rather than a
group. As such, a claim for damages for torture in a foreign prison would sup-
posedly qualify under the proposed human rights exception. Even as a claim for
damages for torture by foreign government forces of opposition or union leaders.
The exercise of jurisdiction by a foreign national court over such claims would
however always require interference in the exercise of competences a foreign state
should be able to exercise independently. The proposal here is rejected as based
on a contorted concept of state immunity. Although the attempt to take the edge
of the human rights exception to make it more palatable is laudable, this author
remains unconvinced by the suggestion that the proposed exception stays within
the parameters of the traditional immunity concept.
2.3.1.3 Caplan: A proposal based on the rationale

of collective benefit of state relations
In the 2003 volume of the AJIL Caplan advanced a proposal for a human rights
exception that stands out from the standard doctrinal approach.⁹⁴ Just like
Bröhmer, Caplan purported to argue within the normal parameters of the rule
of state immunity. And even more so than Bröhmer, Caplan proceeded from a
radical rethinking of these parameters. He depicted the rule of state immunity
as the product of two conflicting principles of international law—the principle of
adjudicatory jurisdiction and the principle of sovereign equality. State immunity,
he argued, operates as an exception to the principle of state jurisdiction. Caplan
reverted to the decision of the US Supreme Court in The Schooner Exchange to
⁹³ ibid 208.
⁹⁴ LM Caplan, ‘State Immunity, Human Rights and Jus Cogens: A Critique of the Normative
Hierarchy Theory’ (2003) 97 AJIL 741.
support his thesis.⁹⁵ It is recalled that Chief Justice Marshall stated that ‘[t]he
jurisdiction of the nation within its own territory is necessarily exclusive and
absolute’ and that ‘[a]ll exceptions, therefore, to the full and complete power of a
nation within its own territories, must be traced up to the consent of the nation
itself. They can flow from no other legitimate source.’ Marshall explained that
states ‘have consented to a relaxation in practice . . . of that absolute and complete
jurisdiction within their respective territories which sovereignty confers’ because
their ‘mutual benefit is promoted by intercourse with each other’. Or, the forum
state ‘is understood to waive the exercise of a part of that complete exclusive ter-
ritorial jurisdiction’.
Caplan argued that state immunity ‘derives from the forum state’s waiver of
adjudicatory jurisdiction with the aim of promoting mutually beneficial interstate
relations.’ He concluded that accordingly, state immunity is not ‘a fundamental
state right by virtue of the principle of sovereign equality’ but a suspension of the
‘right of adjudicatory jurisdiction as a practical courtesy to facilitate interstate
relations’ agreed to by the forum state as a matter of customary international law.
To further support his argument Caplan relied on the Arrest Warrant case. He
recalled that the ICJ had stated that immunity is granted to foreign ministers ‘to
ensure the effective performance of their functions on behalf of their respective
States’ and ‘to protect the individual concerned against any act of authority of
another State which would hinder him or her in the performance of his or her
duties’.⁹⁶ Caplan considered this rationale for state immunity identified by the
ICJ to be ‘entirely consistent with the findings in The Schooner Exchange’.⁹⁷
In addition—in what may be called an obiter consideration—Caplan stated
that the restrictive state immunity theory is ‘antithetical’ to the fundamental
right approach. If state immunity were indeed a fundamental right ‘it would
never be susceptible to theoretical division along public/private lines’.⁹⁸
Having reformulated the nature of the rule of state immunity Caplan set out
to determine the scope of the rule. Since the forum state has agreed to waive its
adjudicatory jurisdiction in order to ‘enhance, not jeopardize, relations between
states’⁹⁹ it may refuse state immunity to foreign state activity that fails to pro-
mote ‘mutual benefit’ among nations. Caplan argued that ‘international law
requires state immunity only as to state activity that collectively benefits the com-
munity of nations’.¹⁰⁰ He concluded that ‘conduct of a foreign state that does not
conform with the development of beneficial interstate relations falls outside the
state immunity “agreement” and thus is not immune by virtue of international
⁹⁵ The Schooner Exchange v M’Faddon (US, 1812), cf ch 2 § 2.2.3.1 above.

⁹⁶ Arrest Warrant of 11 April 2000 (ICJ, 2002) (further referred to as Arrest Warrant Case) 21
and 22, § 53 and § 54.
⁹⁷ LM Caplan (2003) 758–9.
⁹⁸ ibid 754.
⁹⁹ ibid 744.
¹⁰⁰ ibid 744.
custom’.¹⁰¹ Especially conduct that harms the interests of the forum state—like
human rights abuses against its nationals—should be seen to fail this standard.
In sum, Caplan reformulated the basic test for distinguishing between immune
and non-immune transactions. This test, he argued, ‘should not be whether the
state conduct is public or private, as the theory of restrictive immunity requires,
but whether such conduct would substantially harm the vital interests of the
forum state.’¹⁰²
The theory of Caplan epitomizes the consequences of the failure to distin-
guish voluntary and necessary immunity rules as anticipated in chapter 2 of this
study. The fundamental right theory and the exception to adjudicatory jurisdic-
tion theory are complementary rather than mutually exclusive theories. Caplan
described the theory as it applies to voluntary immunity rules. The reasoning of
Chief Justice Marshall is not however, as Caplan argued, equally applicable when
a foreign state is sued in national proceedings for alleged human rights abuses
outside the forum state.¹⁰³ The immunity for acta jure imperii does not clash
with the adjudicatory jurisdiction of the forum state because the essential compe-
tence of states—and hence the jurisdiction of their courts—is inherently limited
by the sovereignty of other states. These two types of immunity rules coincide
with the two theories and exist alongside each other—as was so aptly described
by Anzilotti.¹⁰⁴ Chapter 2 warned that the terminology used to formulate the
restrictive state immunity theory may induce conflation of two distinct concepts.
And in fact, Caplan relied on the statements of distinguished scholars that state
immunity is the exception rather than the rule to come to the conclusion that ‘[a]s
a logical matter, a foreign state cannot be entitled to immunity without the prior
existence of a jurisdictional anchor to establish the court’s competence.’¹⁰⁵ The
argument that state immunity from jurisdiction presupposes the existence of jur-
isdiction is hence based on terminology rather than on substance.
Modern state immunity law consists almost entirely of the necessary state
immunity concept. The diplomatic immunity of certain foreign office hold-
ers that was at issue in the Arrest Warrant case can in no way be likened to the
immunity of foreign states and Caplan’s reliance on that case is totally out of
place. The theory advanced by Caplan is hence based on a misconception of the
nature and scope of the law of state immunity.¹⁰⁶
¹⁰¹ ibid 777.

¹⁰² ibid 777.
¹⁰³ ibid 747.
¹⁰⁴ Cf for the full argument ch 2 § 2.3.2 above. § 3.2 of that chapter rebuts the argument that a
fundamental right theory can only explain an absolute approach to state immunity.
¹⁰⁵ LM Caplan (2003) 754–7, quotation at 754.
¹⁰⁶ It can moreover be questioned whether the argument is convincing when Caplan’s param-
eters are accepted. In the first place it is not entirely clear how Caplan imagined his argument to
work in light of accepted principles of custom ascertainment. At 759 he hints at the argument that
only state practice that reflects the rationale is supported by opinio juris. This is not immediately
convincing since states have indicated quite clearly that they feel obliged to grant immunity in
respect of acta jure imperii. Secondly, the argument slides from ‘immunity necessary to promote
2.3.1.4 A proposal based on the acta jure imperii–acta jure

gestionis distinction
Most proponents of a human rights exception to the state immunity rule do cast
their arguments in terms of the traditional distinction between acta jure gestionis
and acta jure imperii. To test the coherency of the arguments we must examine
whether their reasoning properly reflects the rationale of state immunity under-
lying this distinction.
Proponents of the human rights exception usually tout the argument that acts
violating jus cogens norms cannot qualify as sovereign acts under the restrictive
state immunity rule. It is asserted that ‘[t]he existence of a system of rules that
states may not violate implies that when a state acts in violation of such a rule, the
act is not recognized as a sovereign act. When a state act is no longer recognized
as sovereign, the state is no longer entitled to invoke the defense of sovereign
immunity.’¹⁰⁷ Since ‘[t]he international community would not respect a state’s
sovereign independence as the source of a right to harm its citizens in terrible
ways’ and ‘states, too, are clearly prohibited from extreme human rights viola-
tions and cannot claim that such behaviour falls within its sovereign domain’ it
is submitted that ‘the reasons for sovereign immunity apply poorly to the case of
extreme human rights violations’.¹⁰⁸ Whatever the exact formulation, the gist of
the argument is that acts grossly violating core human rights norms are never per-
formed under sovereign authority because states have no authority to violate these
norms and that consequently these violations are not sovereign acts. A related
argument is that since ‘immunity is granted in part in order to avoid the possi-
bility that the courts of one state will interfere with the affairs of another’ and
human rights protection ‘is no longer a purely internal matter of any individual
mutual beneficial interstate relations’ to ‘acts necessary to promote mutual beneficial interstate
relations.’
¹⁰⁷ AC Belsky et al, ‘Implied Waiver under the FSIA: A Proposed Exception to Immunity for
Violations of Peremptory Norms of International Law’ (1989) 77 California Law Review 365,
394. Cf for similar arguments eg: A Bianchi (1999) 262; P Lieberman, ‘Expropriation, Torture,
and Jus Cogens under the Foreign Sovereign Immunities Act: Siderman de Blake v. Republic
of Argentina’ (1993) 24 University of Miami Inter-American Law Review 503, 535; S Mathew,
Princz v. Federal Republic of Germany: A Violation of Customary International Law’ (1995)
16 Whittier Law Review 911, 933; JA Gergen, ‘Human Rights and the Foreign Sovereign Immunities
Act’ (1996) 36 VJIL 765, 783; SA Richmann, ‘Siderman de Blake v. Republic of Argentina: Can
the FSIA Grant Immunity for Violations of Jus Cogens Norms?’ (1993) 19 Brooklyn Journal of
International Law 967, 979; A Orakhelashvili (2006) 325. Paust was the first to develop this type
of argument but he extended his reasoning to all violations of international law: JJ Paust, ‘Federal
Jurisdiction Over Extraterritorial Acts of Terrorism and Nonimmunity for Foreign Violators of
International Law under the FSIA’ (1983) 23 VJIL 191; JJ Paust, ‘Draft Brief Concerning Claims
to Foreign Sovereign Immunity and Human Rights: Nonimmunity for Violations of International
Law Under the FSIA’ (1985) 8 Houston Journal of International Law 49.
¹⁰⁸ HM Osofsky, ‘Foreign Sovereign Immunity from Severe Human Rights Violations: New
Directions for Common Law Based Approaches’ (1998) 11 New York International Law Review
35, 52. Cf in a similar sense Redress, Immunity v. Accountability, Considering the Relationship
between State Immunity and Accountability for Torture and Other Serious International Crimes
(2005) 46–51.
state but recognized today as a concern of the community of all nations’, the exer-
cise of jurisdiction over foreign states that have allegedly violated human rights
within their territory does not violate the sovereignty of foreign states.¹⁰⁹
The US courts have expressed some sympathy for the argument. In Siderman
de Blake v Republic of Argentina the plaintiffs argued that Argentina could not
rely on the FSIA in respect of the torture allegations since no state immunity
could be available for acts that violate human rights norms that qualify as jus
cogens. The court agreed that
[i]nternational law does not recognize an act that violates jus cogens as a sovereign act.
A state’s violation of the jus cogens norm prohibiting official torture therefore would not
be entitled to the immunity afforded by international law.¹¹⁰
It felt, however, constrained to decide the case on national law rather than inter-
national law considerations. In Argentine Republic v Amerada Hess Shipping
Corporation the Supreme Court had rejected the argument that there is an excep-
tion to state immunity for violations of international law. It emphasized that the
FSIA provides ‘the sole basis for obtaining jurisdiction over a foreign state in our
courts’.¹¹¹ Accordingly, the court in the Siderman case considered:
Unfortunately, we do not write on a clean slate. We deal not only with customary inter-
national law, but with an affirmative Act of Congress, the FSIA. We must interpret the
FSIA through the prism of Amerada Hess. Nothing in the text or legislative history of
the FSIA explicitly addresses the effect violations of jus cogens might have on the FSIA’s
cloak of immunity.
...
In Amerada Hess, the Court had no occasion to consider acts of torture or other vio-
lations of the peremptory norms of international law, and such violations admittedly
differ in kind from transgressions of jus dispositivum, the norms derived from inter-
national agreements or customary international law with which the Amerada Hess Court
dealt. However, the Court was so emphatic in its pronouncement ‘that immunity is
granted in those cases involving alleged violations of international law that do not come
within one of the FSIA’s exceptions,’ . . . and so specific in its formulation and method
of approach . . . that we conclude that if violations of jus cogens committed outside the
United States are to be exceptions to immunity, Congress must make them so. The
¹⁰⁹ M Reimann (1995) 422. It should be noted that Reimann limited his proposal to claims of
nationals of the forum state. Cf also M Karagiannakis (1998) 21; J-F Flauss, ‘Droit des immunités
et protection internationale des droits de l’homme’ (2000) 10 RSDIE 299, 308.
¹¹⁰ Siderman de Blake v Republic of Argentina (US, 1992) 718.
¹¹¹ Argentine Republic v Amerada Hess Shipping Corporation 488 US 428 (US, S Ct, 1989)
434. The Court of Appeals 2nd Circuit had accepted the argument: Amerada Hess Shipping
Corporation v Argentine Republic 830 F 2d 421 (1987) 425. Cf also Von Dardel v Union of Soviet
Socialist Republics 623 F Supp 246 (US, DC for the District of Columbia, 1985) 254, overturned
after the decision of the Supreme Court: Von Dardel v USSR (II) 736 F Supp 1 (US, DC for the
District of Columbia, 1990).
fact that there has been a violation of jus cogens does not confer jurisdiction under the
FSIA.¹¹²
In 1989 Belsky had argued that since under international law jus cogens violations
are not recognized as sovereign acts, US courts should interpret a jus cogens vio-
lation as an implied waiver of state immunity under section 1605(a)(1) FSIA.¹¹³
This reasoning squeezes the jus cogens argument to fit the strictures of the FSIA.
Hugo Princz, a US national who became a victim of Nazi Germany, put the
reasoning to the test in the case of Princz v Federal Republic of Germany.¹¹⁴ The
argument that Germany had impliedly waived its immunity when it violated jus
cogens norms however was rejected by the court. It held the jus cogens theory of
implied waiver to be incompatible with the ‘intentionality requirement implicit
in § 1605(a)(1)’. It insisted that ‘[a]n implied waiver depends upon the foreign
government’s having at some point indicated its amenability to suit.’¹¹⁵
Judge Wald dissented. She argued that under international law there is no state
immunity for human rights violation—‘when a state thumbs its nose at [a jus
cogens norm] . . . [it] cannot be performing a sovereign act entitled to immunity’.
Under reference to the Charming Betsy doctrine she concluded that ‘[t]he only
way to reconcile the FSIA’s presumption of foreign sovereign immunity with
international law is to interpret sec. 1605(a)(1) of the Act as encompassing the
principle that a foreign state implicitly waives its right to sovereign immunity in
United States courts by violating jus cogens norms.’¹¹⁶
In subsequent cases plaintiffs have stubbornly relied on the implied waiver
provision, arguing that the majority opinion in Princz is no (longer) good law and
¹¹² Siderman de Blake v Republic of Argentina (US, 1992) 718–9, referring to Argentine Republic v
Amerada Hess Shipping Corporation (US, 1989) 436 and 439. It is noted that the court in this
case—as in fact several courts in later cases—conflates two arguments. On the one hand it said
that the argument of the plaintiffs was that violations of jus cogens norms do not qualify as sover-
eign acts, on the other it said that the plaintiffs argued that jus cogens norms trumped the rule of
state immunity, cf § 2.2 above. Caplan has argued that the two arguments are ‘nearly identical in
concept’ LM Caplan (2003) 768. Th is author disagrees. If human rights violations do not qualify
as sovereign acts then there is no state immunity and hence no rule to be trumped
¹¹³ AC Belsky et al (1989) 365. Cf for support of this construction eg S Mathew (1995) 931;
J Rabkin, ‘Universal Justice: The Role of Federal Courts in International Civil Litigation’, (1995)
95 CLR 2120; P Lieberman (1993); SA Richmann, (1993) 978; WF Pepper, ‘Iraq’s Crimes of State
against Individuals, and Sovereign Immunity’ (1992) 18 Brooklyn Journal of International Law
313, 369. The implied waiver argument is not in itself a substantive argument against state immun-
ity when human rights are violated but is rather an instrument that enables the development of
arguments in favour of a human rights exception within the strictures of the national legislation.
Cf differently eg J Bröhmer (1997) 190.
¹¹⁴ Princz v Federal Republic of Germany (US, 1994). It is noted that the Siderman’s had in fact
already argued in this vein (Brief for Appellant 35–42, Siderman de Blake v Argentina (US, 1992).
The court however interpreted the argument differently.
¹¹⁵ Princz v Federal Republic of Germany (US, 1994) 1174. Cf on the narrow scope of the implied
waiver provision also Frolova v Union of Soviet Socialist Republics (US, 1985) 377.
¹¹⁶ ibid 1182–3 (Wald J, dissenting). Cf Murray v The Schooner Charming Betsy 6 US (2 Cranch)
64 (US, S Ct, 1804) 118: ‘an act of Congress ought never to be construed to violate the law of
nations if any other possible construction remains’.
that the reasoning of Judge Wald’s dissent should be adopted instead. While the
courts have consistently held that 1605(a)(1) FSIA cannot be relied on as a tool
to interpret the FSIA in accordance with changing international state immun-
ity law,¹¹⁷ they have at times repeated the concern of the Siderman court that
the FSIA may not be in conformance with international law on this point. In
Smith v Socialist People’s Libyan Arab Jamahiriya the court considered that Belsky
developed the jus cogens argument ‘persuasively’ and held that ‘[t]he contention
that a foreign state should be deemed to have forfeited its sovereign immunity
whenever it engages in conduct that violates fundamental humanitarian stand-
ards is an appealing one.’ The court shielded behind the strictures of the FSIA
to explain the grant of state immunity to states that allegedly violated jus cogens
norms. ‘The issue we face’, it held, ‘is not whether an implied waiver derived from
a nation’s existence is a good idea, but whether an implied waiver of that sort is
what Congress contemplated by its use of the phrase “waive[r] . . . by implication”
in section 1605(a)(1) of the FSIA.’¹¹⁸
The deduction of waiver from the violation of jus cogens norms clearly stretches
the principle too far. In fact, the argument does not even pretend that a violating
state has the intention to waive immunity, but is rather of a conceptual nature,
relying on a consequence allegedly inherent in the concept of jus cogens. Many
scholars acknowledged the uncomfortable fit of the implied waiver exception to
the jus cogens argument. As Reimann argued, the problem with the decision in
Princz is not that it is wrong but that it is right.¹¹⁹ Several scholars have therefore
proposed to include a new exception to the FSIA tailored to grant US courts
jurisdiction over jus cogens violations of foreign states.¹²⁰
The argument that acts that violate jus cogens norms do not qualify as sover-
eign acts was relied on by the lower court in the Greek case Prefecture of Voiotia v
Federal Republic of Germany.¹²¹ The court ordered Germany to pay damages of
approximately 30 million dollars for the atrocities committed by the German
¹¹⁷ The exact reasoning does differ somewhat from case to case, cf eg Denegri v Republic of Chile
(US, 1992); Smith v Socialist People’s Libyan Arab Jamahiriya 101 F 3d 239 (US, Ct of Apps (2nd
Cir), 1996); Cabiri v Government of the Republic of Ghana 165 F 3d 193 (US, Ct of Apps (2nd
Cir), 1999); Sampson v Federal Republic of Germany 250 F 3d 1145 (US, Ct of Apps (7th Cir),
2001); Hwang Geum Joo v Japan (US, 2001), affirmed by the Court of Appeals for the District of
Columbia Circuit (2003); Garb v Poland (US, 2002) 37.
¹¹⁸ Smith v Socialist People’s Libyan Arab Jamahiriya (US, 1996). Cf Sampson v Federal Republic
of Germany (also US, 2001) 1156.
¹¹⁹ M Reimann (1995) 417.
¹²⁰ Cf eg J Jacobson, ‘Trying to Fit a Square Peg into a Round Hole: The Foreign Sovereign
Immunities Act and Human Rights Violations’ (1998) 19 Whittier Law Review 757; JA Gergen,
(1996); HM Osofsky (1998); M Reimann, ibid; GM Ziman, ‘Holding Foreign Governments
Accountable for Their Human Rights Abuses: A Proposed Amendment to the Foreign Sovereign
Immunities Act of ’1976’ (1999) 21 Loyola of Los Angeles International and Comparative Law
Journal 185.
¹²¹ Prefecture of Voiotia v Federal Republic of Germany (1997) 50 Revue Hellénique De Droit
International 595 (Greece, Court of First Instance Leivadia, 1997). Cf also I Bantekas, (1998)
92 AJIL 765, 766 and 767.
occupation forces against the people of the Greek village Distomo on 10 June
1940. That day German forces killed over 200 civilians and destroyed civilian
property as retaliation for actions of Greek partisan fighters. The court further
supported its decision arguing that Germany had impliedly waived its immunity
when it violated jus cogens norms. It is noted that such an argument is even less
convincing in a national legal system where there is no immunity in respect of
non-sovereign acts. In the absence of national legislation with a limitative list of
exceptions the implied waiver argument is not only unsound, but also unneces-
sary since a non-existing immunity does not need to be waived.
In appeal the Supreme Court confirmed the argument albeit with a possibly
qualifying twist. The Supreme Court emphasized that Germany had acted on
Greek territory. Referring to the US Letelier case it argued that the territorial
tort exception to state immunity applied independent of the jure gestionis or jure
imperii character of an act. It then argued that the exception to the territorial tort
exception for acts of foreign armed forces does not apply to acts that are directed
to the civilian population and are not related to the interstate armed conflict. In
particular, the court argued, the exception does not apply to acts of an occupa-
tion force that constitute an abuse of sovereign power like the murders commit-
ted in the village of Distomo. In conclusion it confirmed the conclusion of the
lower court that the acts of the German forces were not of a jure imperii character
since they violated peremptory norms of international law. It also confirmed the
argument of the lower court that the violation of jus cogens norms constitutes an
implied waiver of immunity. The decision of the Supreme Court reasons in two
minds. Why did the court think it necessary to argue along the lines of the terri-
torial tort exception if it agreed with the lower court that a violation of jus cogens
is never a jure imperii act? The decision could be interpreted as limiting the jus
cogens argument to acts performed on the territory of the forum state.
It must, at this point, moreover be noted that two subsequent Greek deci-
sions qualify the Voiotia decision. In the first place did a 2002 decision of the
Greek Supreme Court distinguish immunity from jurisdiction from immunity
from execution. The court refused to allow execution of the decision of the lower
court.¹²² More importantly, the court referred a subsequent case dealing with
the question of immunity from jurisdiction in case of allegations of jus cogens
violations to the special Supreme Court dealing with questions of interpretation
of international law (the Anotato Eidiko Dikasterio). That court—albeit with
only a slight majority—did not agree with the decision of the Supreme Court in
¹²² Judgments nos 36/2002 and 37/2002 (Greece, S Ct, 2002). Applicants complained in
Strasbourg that this decision violated their right of access to court under art 6.1 of the ECHR:
Kalogeropoulou et al v Greece and Germany (ECHR, 2002), available at <http://www.echr.coe.int>.
Th is argument was rejected by the European Court of Human Rights on the basis of the reasoning
set out in § 3 of this chapter.
Prefecture of Voiotia v Federal Republic of Germany. It held that foreign states are
immune in all proceedings concerning acts of its armed forces.¹²³
So how does the argument fare in light of the findings of chapter 2 of this
study? That chapter analysed the rule of state immunity in order to identify the
parameters of coherent legal argument on the scope of the rule. It was explained
that the acta jure imperii–acta jure gestionis distinction secures the independent
exercise of exclusive competences that a state has with regard to its territory as
part of the essence of statehood. If a state could extend its adjudicative jurisdic-
tion over another state’s exercise of police powers—or the collecting of taxes,
law-making or administering of justice for that matter—declaring the foreign
state’s activity legal or illegal or ordering the foreign state to do or refrain from
doing something in its regard, this would infringe the independence of a foreign
state. The notion ‘sovereign act’ as operative in the field of state immunity is thus
essentially neutral—not normative. The argument that jus cogens violations do
not qualify as sovereign acts targets the law of state immunity from a mistaken
perspective on the role of sovereignty within that law. A blinkered focus on the
nature of the act as the controlling principle, detached from the rationale under-
lying the jure imperii–jure gestionis distinction, fails to provide a convincing basis
of argument.¹²⁴
At first blush, the argument that exercise of jurisdiction over jus cogens violations
of foreign states within their own territory does not interfere with the sovereignty
of that state because such violations are today no longer a purely internal matter
but recognized as a concern of the community of nations may seem to escape
this criticism. The argument is admittedly more sophisticated in its reliance on
the rationale of the rule of state immunity rather than on the sovereign–non sov-
ereign act mantra. It suffers however from the same defect since it confuses the
principle of non-interference with the principle of domestic jurisdiction. Foreign
states enjoy immunity in cases regarding the exercise of sovereign powers not
because that state is free to do what it pleases within its borders, but because the
exercise of foreign judicial authority over sovereign activity would interfere with
the independent exercise of exclusive state authority.
Both arguments moralize the concept of sovereignty. This may be seen to
form part of a larger movement that sets out to counter what in turn may be
¹²³ Judgment no 6/2002 (Greece, Special S Ct, 2002), discussed in M Panezi, ‘Sovereign
Immunity and Violations of Jus Cogens Norms’ (2003) 56 Revue Hellénique de Droit
International 199.
¹²⁴ Another example of such focus can be found in R Higgins, ‘The Role of Domestic Courts
in the Enforcement of International Human Rights: The United Kingdom’ in B. Conforti and
F Francioni (eds), Enforcing Human Rights in Domestic Courts (1997) 37, 53. The author asserted
that torture could not be entered into in the exercise of sovereign authority ‘because acts in the
exercise of sovereign authority (acta iure imperii) are those which can only be performed by states,
but not by private persons. Property deprivation might fall in this category; torture would not.’
Th is argumentation not only severs the rationale of the rule from its formulation but moreover
relies on the test developed to give expression to this formulation within the domestic legal order,
severing the two concepts even further.
called the ‘immoralization’ of sovereignty that characterized nineteenth-century

international legal theory. One notable critic of typical nineteenth-century sov-
ereignty thinking was Brierly. He argued that the concept of sovereignty had
gradually been distorted ‘into a principle of international disorder’ and was used
‘to prove that by their very nature states are above the law’.¹²⁵ He cautioned that
‘sovereignty is one of those concepts [that] become our tyrants rather than our
servants when they are treated as real existences and developed with disregard of
their consequences to the limit of their logic’¹²⁶ and considered that ‘the outworn
theories of sovereignty have become anachronisms in the modern world’.¹²⁷ Now
that the concept is freed from many archaic shackles, it seems that the opposite
danger looms. It is not uncommon to find academics proclaiming ‘the end of
sovereignty’ and the words of the ICTY that ‘[i]t would be a travesty of law and
a betrayal of the universal need for justice, should the concept of State sover-
eignty be allowed to be raised successfully against human rights’¹²⁸ are eagerly
quoted in support of a diversity of ambitious proposals in the field of human
rights law. A brief examination of this phenomenon serves a better understanding
of the reasoning of proponents. Clearly, this is not the place—nor is this author
qualified—to engage in a historical and philosophical debate on the controversial
notion of sovereignty. As ‘it is doubtful whether any single word has ever caused
so much intellectual confusion’ a modest approach is preferred.¹²⁹ The objective
is to establish that the concept of external sovereignty underlying the horizon-
tal division of competences is essentially unrelated to the concepts of jus cogens
norms and domestic jurisdiction.
When Bodin wrote in his famous Les Six Livres de la Republique that sover-
eignty ‘est la puissance absolue et perpétuelle d’une République’ his perspec-
tive on the state was essentially internal.¹³⁰ The question how the sovereignty
of a state related to the sovereignty of other states was not regarded. When later
Hobbes gave the sovereign his radical absolutist traits writing that ‘it appeareth
plainly . . . that the sovereign power . . . is as great as possibly men can be imag-
ined to make it’ he was similarly concerned with the relation between the sover-
eign and his people only.¹³¹ It is also in this internal perspective that we should
see the theory of sovereignty of the people, as developed for example by Locke
and Rousseau. Hobbes did consider the consequence of distinct sovereignties
¹²⁵ JL Brierly, The Law of Nations, An Introduction to the International Law of Peace (H Waldock
(ed) 6th edn 1963) 10.
¹²⁶ JL Brierly, ‘The Sovereign State Today’ in H Lauterpacht and CHM Waldock (eds), The Basis
of Obligation in International Law, and Other Papers by the late James Lesly Brierly (1958) 348, 349.
¹²⁷ JL Brierly, ‘International Law: Some Conditions of Its Progress’ in H Lauterpacht and
CHM Waldock (1958), ibid 327, 328.
¹²⁸ Prosecutor v Tadić (ICTY, 1995) § 58.
¹²⁹ P Malanczuk (ed), Akehurst’s Modern Introduction to International Law (7th edn, 1997) 17.
¹³⁰ J Bodin, Les Six Livres de la République (1576) first book, chapter VIII.
¹³¹ T Hobbes, Leviathan (1651), chapter XX. Bodin qualified his definition of sovereignty,
asserting that all power is subject ‘aux loix de Dieu, et de nature, et à plusieurs loix humaines
communes à tous peuples.’ ibid.
occupying different parts of the world—albeit in a realist vein, rather than one of
legal theory. He wrote that
kings and persons of sovereign authority, because of their independence, are in contin-
ual jealousies, and in the state and posture of gladiators having their weapons pointing
and their eyes fi xed on one another; that is, their forts, and garrisons, and guns upon the
frontiers of their kingdoms, and continual spies upon their neighbours; which is a pos-
ture of war.¹³²
It is exactly the wish to transform this state of nature in a less antagonistic situ-
ation of co-existence of independent states that underlies the contemporary
international legal order. It has been argued that since ‘[t]he notion at the root of
sovereignty is superiority’ the term is ill-fitted to describe the state in its relations
with other states.¹³³ However, external sovereignty as a concept of international
law does not regard absolutist power of states in the international legal order. It is
but the other side of the medal of internal sovereignty when recognized by other
states. In fact, it is a necessary incident of the co-existence of and cooperation
between territorial sovereign states on a basis of juridical equality rather than on
a basis of superiority. The notion external sovereignty serves to secure the inde-
pendent exercise of the competences attributed to the state under international
law and guarantees states the right to respect for one’s statehood. Judge Alvarez
famously wrote in the Corfu Channel case that
[b]y sovereignty, we understand the whole body of rules and attributes which a State pos-
sesses in its territory, to the exclusion of all other States, and also in its relation with other
States.¹³⁴
However, it may be more instructive to say that international law recognizes a
bundle of competences that all states possess—including a body of exclusive ter-
ritorial competences—and that the notion of sovereignty serves to establish that
states have the right to exercise these competences independently and on a basis
of equality with other states. As Judge Huber explained in the Island of Palmas
case:
Sovereignty in the relations between States signifies independence. Independence in
regard to a portion of the globe is the right to exercise therein, to the exclusion of any
other State, the functions of a State.¹³⁵
¹³² T Hobbes (1651) chapter VIII.

¹³³ JL Brierly, ‘The Shortcomings of International Law’ (1924) 5 BYIL 4, 12. Cf also L Henkin,
‘The Mythology of Sovereignty’ in RSJ MacDonald (ed), Essays in honour of Wang Tieya (1994)
351, 352.
¹³⁴ Corfu Channel Case (ICJ, 1949), Individual Opinion Judge Alvarez 39, 43.
¹³⁵ Island of Palmas Case (PCA, 1928) 838. Crawford used a combination of the two definitions:
‘[i]n its most common modern usage, sovereignty is the term for the “totality of international rights
and duties recognized by international law” as residing in an independent territorial unit—the
State’, J Crawford, The Creation of States in International Law (1979) 26 quoting the Reparation of
Injuries Case.
It was argued in chapter 2 that several necessary principles inhere in the premise
of an international community based on the independence and equality of states.
In fact, the principle that ‘[e]very State has the right to independence and hence
to exercise freely, without dictation by any other State, all its legal powers, includ-
ing the choice of its own form of government’ is clearly mirrored in the principle
that ‘[e]very State has the duty to refrain from intervention in the internal or
external affairs of any other State’.¹³⁶ This principle of non-intervention under-
lies the limit on the judicial competence of states with regard to the exercise of
exclusive competences by other states. Another principle that logically follows
from the independence and equality of states is that the creation of obligations
under international law in principal depends on the consent of the obligor. This
principle applies to both primary and secondary norms and equally underlies the
international dispute settlement rule.
In the nineteenth century the principal objective of states was to regulate their
interstate relations and develop some rules in fields where their claims to sover-
eignty risked collision. The reality of co-existing antagonistic territorial sovereign
states inspired the development of the law of diplomatic relations, the law of treat-
ies, the law of the sea and war law. All that was not regulated by international law
remained in the domestic jurisdiction of states. At this stage of the development
of international law it was undisputed that international law was unconcerned
with a state’s treatment of its own nationals. As Brierly noted in 1925:
Australian immigration is a matter of domestic jurisdiction, but so too were the Armenian
massacres.¹³⁷
Things have clearly changed. The experience of the world wars made states aware
of the existence of common interests that cannot be achieved or protected uni-
laterally but only through multilateral co-operation. The cooperation between
states in the realization of common interests required the establishment of multi-
lateral forums to discuss these interests, and multilateral institutions to effectively
enforce the obligations undertaken. The protection of human rights is the single
most important example of such a common interest and today an extensive body
of international human rights law with control and enforcement mechanisms
exists. No state may claim that the massacre of nationals within its territory is a
matter outside the reach of international law and essentially within its domestic
jurisdiction.
The consideration of the PCIJ in Nationality Decrees issued in Tunis and
Morocco that ‘[t]he question whether a certain matter is or is not solely within
the jurisdiction of a state is an essentially relative question; it depends upon
¹³⁶ Arts 1 and 3 of the 1949 ILC Draft Declaration on Rights and Duties of States, YBILC 1949
286, 287.
¹³⁷ JL Brierly (1925) 18.
the development of international relations’¹³⁸ evinces the relative nature of the
concept of domestic jurisdiction. Though the reluctance of states to regulate
behaviour within national borders on the international level may be prompted by
the wish to exercise sovereign powers as they see fit; in theory there is no differ-
ence between opposition to the development of international human rights law
and opposition to, for example, the development of a regime of the high seas. The
relation between the principle of domestic jurisdiction and the principle of exter-
nal sovereignty is hence that the latter gives states—in principle—control over
the scope of the former.
In the common perception the relation has however become less relative. The
idea that sovereignty is ‘the right of a State to pursue whatever policies it wishes
within its own borders’¹³⁹ is persistent. As a logical consequence the development
of international human rights norms is often seen as limiting the sovereignty of
states. Higgins for example considered that ‘[s]overeignty . . . is the entitlement
of a state to act as it wished at the international level—the ability to resist inter-
vention from the international community . . . Sovereignty is a relative concept
in international affairs that changes through time, and it has become common-
place to say that there has been tremendous erosion in the concept of sovereignty,
relating particularly to the areas of human rights and now possibly humani-
tarian intervention.’¹⁴⁰ In a similar vein another scholar compared the modern
concept of sovereignty to Swiss cheese ‘with holes in it of different shapes and
locations. These holes represent elements that have been extracted from a state’s
sovereignty . . . The various holes correspond to the commitment for example, to
human rights, disarmament, population, environment, and the like.'¹⁴¹ Thus,
sovereignty acquires a normative quality.
This line of reasoning is troublesome. Brierly aptly remarked that the word
sovereignty ‘is often used as though it means freedom from restraint whatsoever’
but that in fact ‘ “independent” does not mean freedom from law, but merely free-
dom from control by other states’.¹⁴² Article 14 of the Draft Declaration on the
¹³⁸ Nationality Decrees issued in Tunis and Morocco Advisory Opinion PCIJ Series B No 4
(1923) 23.
¹³⁹ Quoted in JD Van der Vyver, ‘Sovereignty and Human Rights in Constitutional and
International Law’ (1991) 5 Emory International Law Review 321, 393.
¹⁴⁰ American Society of International Law, ‘The Transformation of Sovereignty, Theme Panel
IV: The End of Sovereignty? Remark by R Higgins’ (1994) 88 ASIL Proceedings 71, 73–4. Cf also
Prosecutor v Tadić (ICTY, 1995) § 55: ‘Dating back to a period when sovereignty stood as a sacro-
sanct and unassailable attribute of statehood, this concept recently has suffered progressive erosion
at the hands of the more liberal forces at work in the democratic societies, particularly in the field of
human rights’; A Cassese, International Law in a Divided World (1986) 148: international human
rights law may seem to be ‘competing—if not at loggerheads—with the traditional principles of
respect for sovereign Equality of States and non-interference . . . ’.
¹⁴¹ American Society of International Law, ‘The Transformation of Sovereignty, Theme
Panel III: Multiple Tiers of Sovereignty: The Future of International Governance, Remarks by
RS Lee’ (1994) 88 ASIL Proceedings 51, 52.
¹⁴² JL Brierly, The Law of Nations, An Introduction to the International Law of Peace (H Waldock
(ed) 6th edn 1963) 130.
Rights and Duties of States provides that ‘[e]very state has the duty to conduct
its relations with other states in accordance with international law and with the
principle that the sovereignty of each state is subject to international law.’ The
widespread notion that ‘sovereignty is limited by the rules of international law’¹⁴³
disregards that this limited meaning is in fact inherent in the concept of exter-
nal sovereignty. International legal obligations do not limit the sovereignty of
states; they limit the exercise of sovereign rights. As the PCIJ remarked in the
SS Wimbledon case: ‘conventions place [ . . . ] a restriction upon the exercise of
the sovereign rights of the State, in the sense that it requires them to be exercised
in a certain way’. The decision to thus limit a state’s freedom however can only
be taken by the state itself. As the Court pointed out, ‘the right of entering into
international engagements is an attribute of state sovereignty’.¹⁴⁴ In his separ-
ate opinion in the German Customs Regime case Judge Anzilotti explained that
‘[i]ndependence . . . is really no more than the normal condition of States accord-
ing to international law; it may also be described as sovereignty (suprema potes-
tas) or external sovereignty, by which is meant that the State has over it no other
authority than that of international law.’¹⁴⁵
The Armenian massacres were indeed in the domestic jurisdiction of Turkey.
Any attempt to call that state to account on the international level would have
infringed Turkish sovereignty because in fact states had not yet agreed on the for-
mulation of international principles and procedures applicable to the situation.
The statement, that international scrutiny of states’ conduct vis-à-vis their own
citizens was precluded by the doctrine of domestic jurisdiction, hence confuses
cause and consequence: scrutiny was not precluded by the doctrine of domestic
jurisdiction but by the unwillingness of states to extend international law to these
matters.¹⁴⁶ The comment that what began ‘as an attempt to guarantee freedom
from foreign oppression is perverted into a veil to be drawn over domestic oppres-
sion’ is undeniably correct.¹⁴⁷ However, it should be realized that this bitter taste
of immorality attached to sovereignty is an essentially relative fact. The develop-
ment of international human rights standards and international organs entrusted
with supervisory and enforcement powers has taken place within the original
parameters of external sovereignty of states.
The concept of sovereignty protected by—or structurally underlying—the
international law rule of state immunity concerns the exclusive competence of
states within their territory rather than non-accountability with regard to the
exercise of this jurisdiction. Hence, the horizontal division of competences
¹⁴³ JD Van der Vyver (1991) 421.

¹⁴⁴ Case of the SS ‘Wimbledon’ PCIJ Series A no 1 1923) 25.
¹⁴⁵ Customs Régime between Germany and Austria (Protocol of March 19th, 1931) (Advisory
Opinion) PCIJ Series A/B no 41 (1931) 37, Individual Opinion Judge Anzilotti 55, 57.
¹⁴⁶ Cf for the former statement eg A Bianchi (1997) 405.
¹⁴⁷ AV Lowe, ‘Peace without Justice; Reconsidering the Law on the Use of Force’ in Perestroika
and International Law (WE Butler (ed) 1990) 281, 284.
between national courts is in principle unrelated to the concept of domestic juris-
diction. It is not relevant whether international legal standards apply to the activ-
ity at hand and whether the matter is a purely internal one or not; immunity
protects the independent exercise of exclusive competences of states from inter-
ference by other states and is neutral—not normative—in its operation. The bun-
dle of exclusive territorial competences has not been affected by developments in
It has at times been advanced that the argument that violations of jus cogens
rules do not qualify as sovereign acts for the purpose of the state immunity rule is
corroborated by the cases of Letelier v Chile¹⁴⁸ and Liu v China¹⁴⁹ decided in the
US courts.¹⁵⁰ It has however been explained in chapter 2, and again in the intro-
duction of this chapter that the normative limit on the discretionary function
exception to the territorial tort exception follows from the fact that a state can
only exercise its sovereign power on the territory of another state within the limits
of that state’s consent. The principles developed in these cases can not therefore
be transposed to the exercise of sovereign power within a state’s own borders.
The same is true for the reasoning developed to limit the functional immun-
ity of foreign state officials as discussed in the previous chapter. In the Eichmann
case the court held that it was impossible for a state to sanction the ‘odious acts’
of which Eichmann was accused and that these acts were accordingly ‘completely
outside the “sovereign” jurisdiction of the State that ordered or ratified their
commission, and therefore those who participated in such acts must personally
account for them and cannot shelter behind the official character of their task or
mission’.¹⁵¹ Proponents of the human rights exception often rely on this in sup-
port of their ‘limited sovereignty’ argument.¹⁵² However, the limited cloak of
state sovereignty in personal liability questions does in no way limit the scope of
state sovereignty itself.
This study hence embraces the much criticized obiter dictum of the US
Supreme Court in the Nelson case in which it argued that torture allegations
against a foreign state basically concern the abuse of police power by the foreign
government and that ‘however monstrous such abuse undoubtedly may be, a for-
eign state’s exercise of the power of its police has long been understood for pur-
poses of the restrictive theory as peculiarly sovereign in nature’.¹⁵³ It is perplexing
¹⁴⁸ Letelier v Chile (US, 1980).

¹⁴⁹ Helen Liu v The Republic of China (US, 1989).
¹⁵⁰ Cf eg JA Gergen (1996) 783–4; P Lieberman, (1993) 503, 536.
¹⁵¹ Attorney-General of Israel v Adolf Eichmann (Israel, 1962) 309–10.
¹⁵² Cf eg SA Richmann (1993); Judge Wald in her dissent in Princz v Federal Republic
of Germany (US, 1994) 115; Prefecture of Voiotia v Federal Republic of Germany (Greece, 1997).
Cf also I Bantekas (1998) 92 AJIL 765, 766.
¹⁵³ Nelson v Saudi Arabia (US, 1993). In a similar vein, the Ontario Superior Court of Justice
argued in the Canadian Bouzari case that ‘exercises of police, law enforcement and security powers
are inherently exercises of governmental authority and sovereignty’. Bouzari and Others v Islamic
Republic of Iran (Canada, 2002) 435; The Court of Appeal for Ontario agreed with the conclusion
that lower courts have only relied on the Nelson case to reject the argument that
certain activity qualified under the commercial act exception,¹⁵⁴ but have not
considered this clear statement of the highest court conclusive precedent preclud-
ing the argument that jus cogens violations do not qualify as sovereign acts.
This study also embraces part of the dissenting opinion of four judges of the
Greek Supreme Court in the case of Prefecture of Voiotia v Federal Republic of
Germany.¹⁵⁵ Four judges argued that the acts of the German forces qualified
under the armed conflict exception to the territorial tort exception. They asserted
that that exception reflects that the use of force is the paradigm acta jure imperii.
The massacre of the civilian population of Distomo, they concluded, cannot be
severed from the armed conflict between the Greek resistance and the German
forces. It has been argued that the dissenting judges arguably ‘missed [the point]
that the tort exception to state immunity may well be interpreted as cutting
across the traditional distinction between private and public acts’.¹⁵⁶ Arguably,
that criticism misses the rationale of the territorial tort exception. It was argued
in chapter 2 of this study that the territorial tort exception with the discretionary
function and armed conflict exception in fact reflects the acta jure imperii–acta
jure gestionis distinction.¹⁵⁷ The dissenting judges were right to point out that
acts committed as part of the armed conflict were of a jure imperii character and
therefore outside the reach of the territorial tort exception.¹⁵⁸
In sum, the international regulation of the exercise of exclusive competence
means that the sovereignty of states is subjected to, rather than limited by, inter-
national law. If this distinction is disregarded the concept of domestic jurisdic-
tion may acquire a twisted role in the theory on state immunity. When Crawford
argued that the division of competences between national courts was encapsu-
lated in the term domestic jurisdiction he did caution that ‘[t]he term is ambigu-
ous because a jurisdiction may cease to be ‘domestic’ vis-à-vis an international
forum such as the United Nations General Assembly, while remaining domestic
vis-à-vis another municipal legal system—and vice versa.’ As a consequence ‘the
existence of a rule of international law which provides a basis for legitimate criti-
cism in an international forum of the acts of State B within its territory . . . does not
as such prevent those acts being matters of State B’s domestic jurisdiction vis-à-vis
of the lower court but did not reason in a similar vein, cf Bouzari and Others v Islamic Republic of
Iran (Canada, CA for Ontario, 2004) § 51–5.
¹⁵⁴ Cf n 56 above.
¹⁵⁵ Prefecture of Voiotia v Federal Republic of Germany (Greece, 2000).
¹⁵⁶ M Gavouneli and I Bantekas (2001) 202.
¹⁵⁷ Cf ch 2 § 3.2.1 and 3.2.2 above.
¹⁵⁸ It is noted that the Italian Supreme Court explicitly rejected the argument that violations of
jus cogens norms do not qualify as sovereign acts, as well as the argument that such violations con-
stitute an implied waiver of immunity: Ferrini v Repubblica Federale di Germania (Italy, 2004) § 7
and § 8.2.
the courts of State A’¹⁵⁹ This caveat does admittedly prevent the straightforward
reliance on the concept of domestic jurisdiction to limit immunity whenever a
(peremptory) rule of international law applies—as proposed by others—but is
in fact only a stopgap masking the unsatisfactory nature of the original argu-
ment.¹⁶⁰ Domestic jurisdiction is in fact not a relative notion in the sense argued
by Crawford. Rather, the absolute fact that something is not within the domes-
tic jurisdiction of states means that the international law rules—customary or
treaty-based—on accountability and responsibility become applicable and the
different actors in the international legal order—like states, international organ-
izations, international tribunals—possess different competences in this system of
secondary rules.
In fact, the focus of the discussion on a possible human rights exception to
state immunity should be on this system of secondary rules rather than on the
sovereign–non sovereign act mould of the horizontal division of competences.
The development of international legal standards as regards the exercise of exclu-
sive competences of states and the finding that ‘the matter, ceasing to be one solely
within the domestic jurisdiction of the State, enters the domain governed by inter-
national law’¹⁶¹ compels the conclusion that the enforcement of these standards
should be—as far as it is not in the normal competence of national courts—in
accordance with the secondary rules of the international legal system.
2.3.2 A Human Rights Exception in Spite of the Rationale

of the Rule of State Immunity?
Since the rule of state immunity for acta jure imperii is a priori indifferent to a
normative hierarchy of rules of international law, coherent arguments in favour
of a human rights exception to state immunity cannot rely on the traditional
reasoning underlying the divisions of competences but must establish that the
secondary rules of the international legal order have developed to include new
competences for national courts. This section examines the influence of the con-
cepts of erga omnes obligations and jus cogens norms on the system of secondary
rules of the law of state responsibility. It will be argued that several developments
in the field—like the rise and fall of the concept of international crimes of state
and the decision of the ICJ in the East Timor case—caution against a reliance
on the concepts of jus cogens norms and erga omnes obligations for more than
they can bear. Any deviation of the normal division of competences between
courts should either logically follow from the normal application of customary
¹⁵⁹ J Crawford, ‘International Law and Foreign Sovereigns: Distinguishing Immune

Transactions’ (1983) 54 BYIL 75, 83.
¹⁶⁰ Cf for a straightforward reliance n 109 above.
¹⁶¹ Nationality Decrees Issued in Tunis and Morocco (PCIJ, 1923) 26.
international law, or should be agreed to by states in express and clear terms in

conventional law.
2.3.2.2 That vain thing of rights of individuals under international law?

It is at times asserted that since there is no right without a remedy,¹⁶² an excep-
tion to state immunity for human rights violations is inherent in international
human rights law. The national courts of the violating state will often not provide
solace to the victims and in the absence of access to an international enforcement
mechanism victims must necessarily have access to foreign national courts. As
Bröhmer argued, ‘[a] subjective right is characterised by the fact that the holder
of the right has the possibility to enforce that right’ and since effective inter-
national procedures are lacking, the procedural side of international human
rights law materializes through national remedies.¹⁶³ Or, as Flauss argued, inter-
national human rights law is only effective if there are no lacunas in the law of
state responsibility.¹⁶⁴
The argument recalls the teleological reasoning of dissenting Judge Tanaka in
the second phase of the South West Africa cases.¹⁶⁵ The judge criticized the find-
ing of the majority that Ethiopia and Liberia did not have standing to complain
that South Africa’s administration of South West Africa violated the Mandate
Agreement and the Covenant of the League of Nations. Instead of a ‘formalistic’
interpretation of the law he proposed a ‘teleological or sociological and concep-
tual’ interpretation of international law.
Without expressing a preference here for the one or the other view¹⁶⁶ it should
be realized that the comparison to an inherent limit on state immunity is imper-
fect. It confuses the position of states and individuals within international human
rights law. The source of confusion is the somewhat muddled theory on the pos-
ition of the individual in international law. The issue cannot be discussed here
in the detail it deserves but even at the risk of oversimplification it is thought
important to discuss it briefly.
International human rights law is concerned with the rights of individuals.
This has led commentators to argue that—in defiance of traditional positivist
thinking—individuals are not comparable to ‘stocks and shares and ships’ or
¹⁶² Cf Ashby v White 2 Ld Raym. 938 (UK, CA, 1703) 953, dissenting opinion Holt, CJ: ‘it is a
vain thing to imagine a right without a remedy’.
¹⁶³ J Bröhmer (1997) 206. Cf also WF Pepper (1992) 363; W Adams, ‘In Search of a Defence of
the Transnational Human Rights Paradigm: May Jus Cogens Norms be invoked to Create Implied
Exceptions in Domestic State Immunity Statutes’ in C Scott (ed), Torture as Tort, Comparative
Perspectives on the Development of Transnational Human Rights Litigation (2001) 247, 250.
¹⁶⁴ J-F Flauss (2000) 306.
¹⁶⁵ South West Africa Cases (ICJ, 1966), Dissenting Opinion Judge Tanaka 248, 278. Cf ch 2
p 94 above.
¹⁶⁶ It cannot but be admitted that the consideration of the ICJ in the Barcelona Traction case
that obligations owed to the international community as a whole are ‘[b]y their very nature . . . the
concern of all States’ is very similar to the reasoning of Judge Tanaka, The Barcelona Traction, Light
and Power Company, Limited (ICJ, 1970) 32.
other objects of international law but are properly called subjects of international
law.¹⁶⁷ The ICJ held in its 1949 advisory opinion in the Reparations for Injuries
case that an entity with international legal personality ‘is a subject of international
law and capable of possessing international rights and duties, and . . . has capacity
to maintain its rights by bringing international claims.’¹⁶⁸ While many com-
mentators have jumbled the concepts of ‘subject of international law’ and ‘inter-
national legal person’,¹⁶⁹ with Raič it is probably correct to say that the Court
set out to distinguish the two.¹⁷⁰ In other words, it is possible to be a bearer of
international rights without having the capacity to bring an international claim
to enforce these rights.
Having said that, it must be realized that it is not the lack of procedural cap-
acity that distinguishes the position of individuals in the international legal order
from that of states.¹⁷¹ The rights of individuals recognized under international
law are in principle enforced within the national legal systems of the states that
undertake the protection of these rights. The recognition of these rights on the
international level does not entail the grant of a right to individuals, it entails the
grant of a right to states. In fact, the common articulation of the rights in natural
law terms evinces that the individuals are considered to have always possessed
these rights. States grant each other the right to monitor the compliance of their
behaviour with the agreed norms. Since this right would be a vain thing in the
absence of a remedy in the international legal system it is indeed arguable that
¹⁶⁷ DP O’Connell, International Law (1970) i 83. Cf eg H Lauterpacht (1947b); CA Nørgaard,

The Position of the Individual in International Law (1962); J Crawford, The Creation of States in
International Law (1979) 25; PK Menon, ‘The Subjects of Modern International Law’ (1990)
3 Hague Yearbook of International Law 30, 32; PH Kooijmans, ‘The Security Council and Non-
State Entities as Parties to Conflicts’ in K Wellens (ed), International Law: Theory and Practice,
Essays in Honour of Eric Suy (1998) 333, 338; R Jennings and A Watts(1992) i 847–9. Cf for early
doctrine R Knubben, Die Subjekte des Völkerrechts (1928) 527; J Spiropoulos, L’ individu en droit
international (1927); M Siotto-Pintor, ‘Les sujets du droit international autres que les États’
(1932–III) 41 RdC 245; H Lauterpacht, Private Law Sources and Analogies of International
Law (1927) 73; H Kelsen, General Theory of Law and the State (1945). Cf for the positivist view
L Oppenheim (1905) i 200; D Anzilotti, Cours de droit international (1929) 134; For a general
overview see CA Nørgaard (1962).
¹⁶⁸ Reparation for Injuries Suff ered in the Service of the United Nations (Advisory Opinion),
ICJ Reports 1949 174, 179.
¹⁶⁹ Cf R Jennings and A Watts (1992) i 119; I Brownlie (2003) 57–8.
¹⁷⁰ D Raič, Statehood and the Law of Self-Determination (2002) 13.
¹⁷¹ For example the oft-quoted words of Lauterpacht seem to suggest this: ‘The position of the
individual as subject of international law has often been obscured by the failure to observe the dis-
tinction between the recognition, in an international instrument of rights ensuring the benefit of
the individual and the enforceability of these rights at his instance. The fact that the beneficiary of
rights is not authorized to take independent steps in his own name to enforce them does not signify
that he is not a subject of the law or that the rights in question are vested exclusively in the agency
which possesses the capacity to enforce them. Thus in relation to the current view that the rights
of the alien within foreign territory are the rights of his state and not his own, the correct way of
stating the legal position is not that the state asserts its own exclusive right but that it enforces, in
substance, the right of the individual who, as the law now stands, is incapable of asserting it in the
international sphere’, H Lauterpacht (1950) 27.
enlarged rules on standing inhere in the regulation of human rights on the inter-
national level. The right of the individual, however, exists in the national legal
system. The right to a remedy as provided in most human rights treaties is there-
fore the equivalent of the remedy of states on the international level.¹⁷²
The access of individuals to an international enforcement mechanism does
greatly enhance the effectiveness of the agreement between states. Individual inci-
dental violations are not readily discernable without a right to individual petition
and states are moreover reluctant to bring claims in respect of such violations.
The right to an international remedy does however not inhere in the recognition
of these rights on the international level, it is the right to a national remedy that
does.
2.3.2.3 Jus cogens rules, erga omnes obligations, and the secondary rules
of international law
In the 2004 Ferrini case the Italian Supreme Court decided that a foreign state
did not enjoy immunity from jurisdiction in respect of jus cogens violations.¹⁷³
The reasoning of the court is somewhat ambiguous. In the first place, like the
Greek court, the Italian court reasoned in two minds. It emphasized the fact
that the tortious activity took place within Italian territory, while its principal
argument is not limited to territorial torts but relies explicitly on the qualifica-
tion of the activity in terms of international law. Second, the reasoning of the
court remains underdeveloped. Although the court did express support for the
minority opinion in the Al-Adsani case before the European Court of Human
Rights, its argumentation was not limited to the ‘standard’ hierarchy of norms
argument.¹⁷⁴ Rather, it primarily relied on a ‘systematic interpretation’ of the rule
of state immunity to come to its conclusion. The rule of state immunity, the court
argued, is part of a system and has to be interpreted in accordance with other
norms that form part of the same legal order. Legal norms, it explained, comple-
ment one another and condition each other’s application.¹⁷⁵
The court mentioned several factors that influenced its interpretation of the
scope of the rule of state immunity. In the first place, it recalled that the acts
complained of qualified as international crimes, which it defined as violations
of fundamental human rights that are protected by non-derogable norms. Such
violations, the court continued, require a different reaction from other states
than other violations of international law. Referring to the ILC Articles on
State Responsibility, the court recalled that states may not recognize as lawful
¹⁷² Cf § 3.3 below.

¹⁷³ Ferrini v Repubblica Federale di Germania (Italy, 2004). See for comments on this case
A Bianchi, ‘Ferrini v. Federal Republic of Germany’ (2005) 99 AJIL 242; P De Sena and F De
Vittor, ‘State Immunity and Human Rights: The Italian Supreme Court Decision on the Ferrini
Case’ (2005) 16 EJIL 89; A Gattini (2005).
¹⁷⁴ ibid § 9.1.
¹⁷⁵ ibid § 9.
situations created by the commission of jus cogens violations, are prohibited from
assisting in maintaining such situations, and are obliged to bring such situations
to an end through lawful means. The court then stated that the respect for inviol-
able human rights is a fundamental principle of the international legal order that
cannot but affect the scope of other principles that have traditionally inspired
that order. In particular, the court held, the principle affects the principle of the
equality of states that underlies the rule of state immunity. Jus cogens violations
require a different reaction than other violations of international law. Since the
grant of state immunity in respect of allegations of jus cogens violations does not
favour the protection of jus cogens norms but rather forms an obstacle to their pro-
tection, the argument seems to run, it must be rejected.
In addition, the court recalled that the rule of functional immunity knows an
exception in respect of international crimes.¹⁷⁶ Since functional immunity exists,
the court argued, in order to prevent an indirect implication of foreign states,
there is no reason to sustain state immunity in cases where there is no functional
immunity.
It is time to take a closer look at the concepts relied on in the Ferrini judgment.
Ever since the reference to peremptory norms in the Vienna Convention on the
Law of Treaties and the mention of obligations erga omnes in the 1970 Barcelona
Traction case scholars have hotly debated the question whether distinct rules on
state responsibility apply when norms of an erga omnes or jus cogens character are
at issue. This section will describe relevant developments in the field on the basis
of the ILC Articles on the Law of State Responsibility—adopted by the ILC in
their final version in 2001.¹⁷⁷ Although these articles have as yet not reached the
status of convention they reflect many rules of customary international law and
provide a useful frame of reference.
It must, however, first be questioned whether the exercise of adjudicative jur-
isdiction over foreign states with regard to their violations of international law
can be justified under the rules on countermeasures—as is at times suggested.¹⁷⁸
Countermeasures are measures that ‘would otherwise be contrary to the inter-
national obligations of the injured State vis-à-vis the responsible State if they were
not taken by the former in response to an internationally wrongful act by the lat-
ter in order to procure cessation and reparation.’¹⁷⁹ This definition compels a pre-
liminary observation as to the position of non-injured states that are recognized
to have a legal interest in compliance under article 48 of the ILC Articles on State
¹⁷⁶ ibid § 11.

¹⁷⁷ ILC Articles on the Responsibility of States for Internationally Wrongful Acts (2001), UN
Doc A/56/10, 2001.
¹⁷⁸ Cf eg J Kokott, ‘Mißbrauch und verwirkung von Souveränitätsrechten bei gravierenden
Völkerrechtsverstoßen’ in U Beyerlin et al (eds), Recht zwischen Umbruch und Bewahrung,
Festschrift für Rudolf Bernhardt (1995) 135, 148–9. J Bröhmer, State Immunity and Human Rights
Violations (1997) 159 and 192 rejects the argument, inter alia, because it entails acknowledging
that the denial of immunity in human rights cases is normally a violation of international law.
¹⁷⁹ J Crawford (2002) 281.
Responsibility. Article 54 provides that the rules on countermeasures applicable

to injured states do not prejudice the rights of article 48 states ‘to take lawful
measures . . . to ensure cessation of the breach and reparation in the interest of the
injured State or the beneficiaries of the obligation breached’. The provision is an
empty shell since no definition of what constitutes lawful measures is available.
Crawford admits that—apart from institutional reactions in the framework of
international organizations—‘[a]t present there appears to be no clearly recog-
nised entitlement of States referred to in article 48 to take countermeasures in the
collective interest.’¹⁸⁰ In sum, the argument is a priori limited to human rights
violations against nationals of the forum state.¹⁸¹
But even in this limited form the argument proves incoherent. Some of the
principal characteristics of these measures fit an institutionalized exception to
immunity rules uncomfortably—to say the least. Countermeasures are essen-
tially exceptional ad hoc measures that require careful tailoring to the particulars
of each case and hence a case-by-case assessment. Before countermeasures may be
lawfully taken states shall call on the responsible state to cease the internationally
wrongful conduct and to pay reparation and shall notify that state of any decision
to take countermeasures and offer to negotiate.¹⁸² Moreover, states must in any
case fulfil their obligations under any dispute settlement procedure applicable
between it and the responsible state.¹⁸³ Since diplomatic protection is the proced-
ure that states have agreed upon for the settlement of disputes relating to the vio-
lation of rights of their nationals by another state, it seems that states are obliged
to attempt settlement of the dispute under the rules of diplomatic protection first.
An exception to immunity rules based on the rules on countermeasures should
hence be contingent on the fruitless result of the fulfilment of the obligations
resting on the executive of the forum state as well as the fulfilment of the require-
ments of the local remedies rule.
More fundamentally, countermeasures have a temporary or provisional charac-
ter. As Crawford pointed out: ‘Their aim is the restoration of a condition of legal-
ity as between the injured State and the responsible State, and not the creation
of new situations which cannot be rectified whatever the response of the latter
State to the claims against it.’¹⁸⁴ Therefore, countermeasures should in principle
be reversible.¹⁸⁵ Although this obligation is not absolute, when states have the
choice between several lawful and effective measures, they are required to select
one which permits resumption of performance of the obligations suspended.¹⁸⁶
¹⁸⁰ ibid 305. Cf M Akehurst, ‘Reprisals by Th ird States’ (1970) 44 BYIL 1; JA Frowein,
‘Reactions by Not Directly Affected States to Breaches of Public International Law’ (1994–IV)
248 RdC 345.
¹⁸¹ Cf also T Giegerich (2006) 232ff.
¹⁸² Art 52.1. Cf J Crawford (2002) 297.
¹⁸³ Art 50.2(a). Cf J Crawford, ibid 291.
¹⁸⁴ J Crawford, ibid 286.
¹⁸⁵ Cf also Gabćíkovo-Nagymaros Project (Hungary v Slovakia), ICJ Reports 1997 3, 56–7.
¹⁸⁶ J Crawford (2002) 287.
It may be clear that the non-grant of immunity—in violation of international
obligations—in order to force reparation on the responsible state is because of the
necessary link between reparation paid and the obligation suspended in essence
incompatible with the concept countermeasure.
It should finally be noted that it is controversial whether obligations under
immunity rules can be suspended under the rules on countermeasures to begin
with. Riphagen, for one, argued under reference to the ICJ’s decision in the
Diplomatic and Consular Staff case that
one might say that in every set of rules of international law, providing for immunity is of
necessity a ‘self-contained régime’ inasmuch as it deals with the separation of sovereign-
ties of states in cases where those states, so to speak, share the same environment. The
conditions under which such sharing may take place, the scope of the resulting immun-
ities, and the conditions under which the sharing may be terminated form an indivisible
régime, within which there is no place for countermeasures against an ‘internationally
wrongful act’. Indeed immunity has no meaning unless, within its scope, the state enjoy-
ing it whatever it does, is free from interference by the state granting it.¹⁸⁷
The argument has much force indeed. It recalls the general problem of circularity
underlined in section 2.1 of this chapter.
Let us now turn to the provisions relating to peremptory norms and erga omnes
obligations. In 1976 Rapporteur Ago relied on the Barcelona Traction case as ‘an
important factor in support of the theory which advocates two different regimes
of international responsibility depending on the content of the international obli-
gation breached’.¹⁸⁸ He also relied on the concept of jus cogens norms to defend
this thesis arguing that ‘it would be hard to believe that the evolution of the legal
consciousness of States with regard to the idea of the inadmissibility of any dero-
gation from certain rules has not been accompanied by a parallel evolution in the
domain of State responsibility.’¹⁸⁹ Ago’s proposal resulted in the introduction of
a distinction between international delicts and international crimes in the Draft
Articles on State Responsibility in what finally became known as the (in)famous
article 19.¹⁹⁰ Article 19.2 provided that ‘[a]n internationally wrongful act which
results from the breach by a State of an international obligation so essential for
¹⁸⁷ W Riphagen, ‘State Responsibility: New Theories of Obligation in Interstate Relations’ in

RSJ Macdonald and DM Johnston (eds), The Structure and Process of International Law (1983) 581,
606. Cf United States Diplomatic and Consular Staff in Tehran (ICJ, 1980) 40.
¹⁸⁸ R Ago (Special Rapporteur ILC), Fifth report on State Responsibility, YBILC 1976 ii (part
one) 3, 29 (more in general p. 24–54). Cf also R Ago, ‘Le délit international’ (1939–II) 68 RdC
415 for an early expression of this idea. Ago was not the first Rapporteur to consider these issues, cf
eg FV Garcia-Amador (Special Rapporteur ILC), Report on International Responsibility, YBILC
1956 ii 173, 183. See for an overview of the legislative history of art 19 M Spinedi, ‘International
Crimes of State, The Legislative History’ in JHH Weiler, et al (eds), International Crimes of State,
A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility (1989) 7.
¹⁸⁹ R Ago, ibid 32.
¹⁹⁰ Ibid 54 (art 18).
the protection of fundamental interests of the international community that its

breach is recognized as a crime by that community as a whole constitutes an
international crime.’ The controversy that developed became the most persistent
and divisive of the whole state responsibility project and article 19 developed into
the principal stumbling block for a successful completion of the topic.
This is obviously not the place to set out the intricate debate between propon-
ents and opponents of the concept of international crimes of state.¹⁹¹ Put boldly,
an important element of the opposition to article 19 was that it could not live
up to the promises it held, or, as one scholar poetically noted, the introduction
of the notion state crimes in article 19 is like offering a ‘decaffeinated coffee’.¹⁹²
States were not willing to develop a penal regime of responsibility applicable
to violations singled out as international crimes. Crawford points out that all
elements—or ingredients to stick to the metaphor—that one might expect to
attach to the notion of crime, like a proper definition of the crimes; procedures
for investigation; a system of due process; and especially appropriate sanctions,
were missing.¹⁹³ In fact, it was not at all clear how the legal position of a state that
committed an international crime differed from that of a state that committed an
international delict. States only agreed that the distinction had consequences for
the legal position and obligations of all other states.¹⁹⁴
¹⁹¹ See for an overview a.o. JHH Weiler, et al (eds), International Crimes of State, A Critical
Analysis of the ILC’s Draft Art 19 on State Responsibility (1989); PM Dupuy, ‘A General Stocktaking
of the Connections between the Multilateral Dimension of Obligations and Codification of
the Law of State Responsibility’ (2002) 13 EJIL 1053; M Spinedi, ‘From One Codification to
Another: Bilateralism and Multilateralism in the Genesis of the Codification of the Law of Treaties
and the Law of State Responsibility’ (2002a) 13 EJIL 1099; L-A Sicilianos, ‘The Classification
of Obligations and the Multilateral Dimension of the Relations of International Responsibility’
(2002) 13 EJIL 1127; E Wyler, ‘From “State Crime” to Responsibility for “Serious Breaches of
Obligations under Peremptory Norms of General International Law” ’ (2002) 13 EJIL 1147;
CJ Tams, ‘Do Serious Breaches Give Rise to Any Specific Obligations of the Responsible State?’
(2002) 13 EJIL 1161; DW Bowett, ‘Crimes of State and the 1996 Report of the International
Law Commission on State Responsibility’ (1998) 9 EJIL 163; G Abi-Saab, ‘The Uses of Article
19’ (1999) 10 EJIL 339; G Gilbert, ‘The Criminal Responsibility of States’ (1990) 39 ICLQ 345;
PM Dupuy, ‘The Institutionalization of International Crimes of State’ in JHH Weiler et al (eds),
International Crimes of State, A Critical Analysis of the ILC’s Draft Art 19 on State Responsibility
(1989) 170; K Zemanek, ‘New Trends in the Enforcement of Erga Omnes Obligations’ (2000)
4 Max Planck Yearbook of United Nations Law 1; NHB Jørgensen (2000).
¹⁹² J Barboza, ‘State Crimes: A Decaffeinated Coffee’ in L Boisson de Chazournes and
V Gowlland-Debbas (eds), The International Legal System in Quest of Equity and Universality (2001)
357. Cf in defence of notion of state crime A Pellet, ‘Can a State Commit a Crime? Definitely,
Yes!’ (1999) 10 EJIL 425; G Abi-Saab, ‘The Concept of “International Crimes” and its Place
in Contemporary International Law’ in JHH Weiler, et al (eds), International Crimes of States,
A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility (1989) 141.
¹⁹³ J Crawford (2002) 18.
¹⁹⁴ Cf arts 52–3 of the set of Draft Articles provisionally adopted on first reading in 1996, UN
Doc. /51/10, 1996. Art 40.3 moreover provides that if the internationally wrongful act constitutes
an international crime all other states qualify as injured state; but art 40.2.e.iii makes clear that this
consequence is not particular to international crimes but applies more in general to infringement
of rights created for the protection of human rights and fundamental freedoms. It should also be
noted that art 45.2.c provided that satisfaction may take the form of ‘damages reflecting the gravity
In defence of article 19 it has been argued that the distinction between inter-
national delicts and international crimes was never modelled on any domestic law
analogy but rather served to express the idea that an aggravated regime of state
responsibility attaches to acts that affect essential interests of the international
community.¹⁹⁵ Crawford—the final Rapporteur on the project—rejected this
justification noting that ‘the appeal of the notion “international” crime cannot be
dissociated from general human experience’.¹⁹⁶ In 1998 he proposed to set aside
article 19 for the time being and focus on other possible solutions.¹⁹⁷
The final version of the Articles adopted in 2001 abandons the unwieldy—and
indeed unnecessary¹⁹⁸—concept of international crimes and restores the original
concepts underlying jus cogens norms and erga omnes obligations in two separate
sets of rules corresponding with two different aspects of the law of state respon-
sibility. The concept of peremptory norms is used in its original meaning of non-
derogability, as well as to set out certain—for now, limited—legal consequences
that attach to serious breaches of these norms; while the concept of multilateral
obligations is translated in special rules on the invocation of responsibility for the
violation of such obligations. The disappearance of the notion of crimes of state
is mourned by some.¹⁹⁹ Since the substantive elements of the old draft related to
the concept have all survived—and indeed for the most part improved—this can
only be explained by the symbolic force of the term that at least implied the sanc-
tion of the qualification.
The non-derogable character of peremptory norms is first reflected in the
articles dealing with self-defence, distress and other circumstances precluding
wrongfulness where article 26 provides that ‘[n]othing in this Chapter precludes
the wrongfulness of any act of a State which is not in conformity with an obliga-
tion arising under a peremptory norm of general international law.’ Furthermore,
the rules on countermeasures include article 50.1 that provides that countermeas-
ures shall not affect
(a) the obligation to refrain from the threat or use of force as embodied in the Charter of
the United Nations;
of the infringement’ in case of ‘a gross infringement of the rights of the injured State’—a concept
not linked to the definition of international crimes in art 19.
¹⁹⁵ Cf eg G Abi-Saab (1999) 351.
¹⁹⁶ J Crawford (Special Rapporteur ILC), First Report on State Responsibility, Yearbook ILC
1998 ii part one, § 81. See different G Abi-Saab, ibid 346 who argues that ‘legal terms detach them-
selves from their municipal moorings to acquire specific contours and import, more consonant
with the structure and functions of international law’.
¹⁹⁷ Report of the ILC on the work of its fiftieth session (1998), YB ILC 1998 ii (part two) 77.
¹⁹⁸ Cf J Crawford, ‘Revising the Draft Articles on State Responsibility’ (1999) 10 EJIL 435,
443. Ironically enough the ‘father’ of art 19 himself had noted: ‘we are interested not so much in
determining whether the responsibility . . . does or does not entail “criminal” international respon-
sibility as in determining whether such responsibility is or is not “different” from that deriving
from the breach of other international obligations of the State.’ R Ago (Special Rapporteur ILC),
Fifth report on State Responsibility, YBILC 1976 ii (part one) 3, 33, fn 154.
¹⁹⁹ Cf G Abi-Saab (1999).
(b) obligations for the protection of fundamental human rights;
(c) obligations of a humanitarian character prohibiting reprisals;
(d) other obligations under peremptory norms of general international law.
Article 41 sets out some particular consequences of serious breaches of peremptory
norms—defined in article 40.2 as ‘a gross or systematic failure by the responsible
State to fulfil the obligation’ arising under a peremptory norm of international
law. It provides that:
1. States shall cooperate to bring to an end through lawful means any serious breach
within the meaning of article 40.
2. No State shall recognize as lawful a situation created by a serious breach within the
meaning of article 40, nor render aid or assistance in maintaining that situation.
3. This article is without prejudice to the other consequences referred to in this Part and
to such further consequences that a breach to which this Chapter applies may entail
The notion ‘serious breach of a peremptory norm’ has replaced the notion ‘inter-
national crime’. Crawford explains that ‘[f]actors which may establish the serious-
ness of the violation would include the intent to violate the norm; the scope and
number of violations, and the gravity of their consequences for the victims.’²⁰⁰
Apart from the difference in symbolic force between the two notions, it is notable
that the Articles no longer distinguish between, at the outset, different types of
internationally wrongful acts but rather specify some additional consequences
that attach to particular serious breaches. Rather than implying the existence of
two separate regimes of responsibility the assumption is that of a principally uni-
tary regime.
The additional consequences—for now—are limited. It is telling that the art-
icle that originally provided that a serious breach may give rise to aggravated dam-
ages encountered so much criticism that it was deleted from the final draft.²⁰¹
Article 41 is only a very cautious step towards a differentiation in the content of
a state’s responsibility depending on the character of the norm violated. In fact,
the article only specifies the obligations resting on other states. Although the vio-
lating state can expect other states to react more forcefully to its internationally
wrongful act, this in no way affects rights it would otherwise have or imposes on
it obligations it would otherwise not have.
Crawford has admitted that the positive duty of cooperation may not codify
existing law and that paragraph 1 may therefore amount to the progressive devel-
opment of international law.²⁰² The two obligations of paragraph 2, on the
other hand, do reflect international practice. States are obliged to refrain from
²⁰⁰ J Crawford (2002) 247.

²⁰¹ ibid 36.
²⁰² ibid 249.
recognition—formal or de facto—as lawful situations created by a serious breach
as well as from rendering aid or assistance in maintaining such situations.²⁰³ The
most obvious example would be the obligation not to recognize another state’s
acquisition of sovereignty over territory through violation of the prohibition of
aggression or through the denial of the right of self-determination of peoples.²⁰⁴
For example, the ICJ in its advisory opinion on Namibia (South West Africa) con-
sidered that ‘the termination of the Mandate and the declaration of the illegality
of South Africa’s presence in Namibia are opposable to all States in the sense
of barring erga omnes the legality of a situation which is maintained in viola-
tion of international law’.²⁰⁵ One conspicuous example moreover can be found
in the resolutions issued by the Security Council in reaction to Iraq’s invasion
and annexation of Kuwait in 1990. After the Security Council had condemned
the invasion as a breach of the peace and demanded the immediate Iraqi with-
drawal (Resolution 660) it called upon all states not to recognize any regime set
up by Iraq (Resolution 661) and eventually decided that the annexation had no
legal validity and was null and void and called upon all states not to recognize
the annexation and to refrain from any action which might be interpreted as an
indirect recognition of the annexation (Resolution 662).
The concept of obligations erga omnes is translated in special rules on the invo-
cation of the international responsibility of a state. Article 42 sets out the basic
rule. It provides that:
A State is entitled as an injured State to invoke the responsibility of another State if the
obligation breached is owed to:
(a) that State individually; or
(b) a group of States including that State, or the international community as a whole,
and the breach of the obligation;
(i) specially affects that State; or
(ii) is of such a character as radically to change the position of all the other States
to which the obligation is owed with respect to the further performance of the
obligation.
²⁰³ Cf eg Prosecutor v Furundžija (ICTY, 1998) § 155.

²⁰⁴ Cf Declaration of Principles of International Law Concerning Friendly Relations and
Co-operation Among States in Accordance with the Charter of the United Nations, GA Res 2625
(XXV) first principle paragraph 10. As the ICJ considered in the Nicaragua Case (merits) the
unanimous consent of states to this declaration ‘may be understood as an acceptance of the validity
of the rule or set of rules declared by the resolution by themselves’. Case Concerning Military and
Paramilitary Activities in and against Nicaragua (ICJ, 1986) 100.
²⁰⁵ Legal Consequences for States of the Continued Presence of South Africa in Namibia (ICJ, 1971)
56. Resolutions of the Security Council and the General Assembly concerning the situation in
Rhodesia and the Bantustans in South Africa reflect a similar duty: cf SC Res 216 (1965); GA Res
31/6A (1976), endorsed by SC Res 402 (1976); GA Res 32/105N (1977); GA Res 34/93G (1979).
Article 48 complements this rule by setting out the circumstances under which
a state that does not qualify as injured state under article 42 may still invoke the
responsibility of another state. It provides as follows:
1. Any State other than an injured State is entitled to invoke the responsibility of another
State in accordance with paragraph 2 if:
(a) the obligation breached is owed to a group of States including that State, and is
established for the protection of a collective interest of the group; or
(b) the obligation breached is owed to the international community as a whole.
2. Any State entitled to invoke responsibility under paragraph 1 may claim from the
responsible State:
(a) cessation of the internationally wrongful act, and assurances and guarantees of
non-repetition in accordance with article 30; and
(b) performance of the obligation of reparation in accordance with the preceding
articles, in the interest of the injured State or of the beneficiaries of the obligations
breached.
3. The requirements for the invocation of responsibility by an injured State under
articles 43, 44 and 45 apply to an invocation of responsibility by a State entitled to do
so under paragraph 1.
While article 42 (b) reflects the direct interest of states in the breach of a multi-
lateral obligation—either because a state is specially affected by the breach or
because the nature of the obligations undertaken is such that each parties’ per-
formance is effectively conditioned upon and requires the performance of each
of the others—article 48 reflects the indirect interest of states in objective multi-
lateral obligations. States acting in the collective interest under article 48 have a
more limited range of rights than injured states under article 42.²⁰⁶
The inclusion of a locus standi concept that takes account of the trend to develop
objective multilateral obligations was as such not too controversial. Indeed, as
Weil rightly noted ‘la théorie de l’obligation erga omnes répond à une nécessité du
monde international d’aujourd’hui’.²⁰⁷ Traditional international law regulated
the behaviour of states in their relations with each other. The absence of direct
interstate aspects in the behaviour required under human rights rules requires de-
bilateralization of relations of responsibility in their regard. Subparagraph (a) of
article 48.1 concerns this category of obligations, sometimes referred to as obliga-
tions erga omnes partes.²⁰⁸ Moreover, the hierarchy of norms thinking that has
been introduced in international law through the concept of jus cogens norms has
triggered the idea that some norms are so important that the obligations arising
²⁰⁶ Cf also art 54: ‘This chapter does not purport to regulate the taking of countermeasures by
states other than the injured State. It is, however, without prejudice to the right of any State iden-
tified in article 48 (1) to take lawful measures, against a responsible State to ensure cessation of the
breach and reparation in the interest of the injured State or of the beneficiaries of the obligation
breached.’
²⁰⁷ P Weil, ‘Le droit international en quête de son identité, Cours général de droit international
public’ (1992–VI) 237 RdC 9, 290.
²⁰⁸ J Crawford (2002) 277.
under such norms are owed to the international community as a whole and that
all states have a legal interest in their protection. This idea lies at the basis of sub-
paragraph (b).
Although in practice a considerable overlap exists between the two categories
it is not difficult to find examples of obligations that fit one category but not the
other. In the first place it is clear that collective interest obligations may be under-
taken within a group of a limited number of states, as is the case with regional
conventions like the ECHR. More essentially, there exist obligations that are
multilateral in nature but that are not necessarily considered more important
than rules of a strictly bilateral nature. One can think for example of the obliga-
tions arising from certain rules on the law of the seas, like prohibitions regard-
ing pollution of the high seas, or, those customary human rights rules not of
a non-derogable character like the freedom of religion. Second, examples can
also be found of obligations ‘that are the concern of all States’ because of ‘the
importance of the rights involved’ but that are not of an inherent multilateral
character. The multilateral character of obligations arising from the prohibition
of aggression, for example, stems from the fundamental importance of the rule
rather than from its intrinsic non-bilateral quality. The category of ‘obligations of
a State towards the international community as a whole’ is hence of an essentially
different nature than the category of pure community interest obligations.
It should fi nally be noted that the multilateral character of an obliga-
tion breached does not mean that no state qualifies as an injured state under
article 42. Apart from the situations explicitly provided for in article 42 (b), it
may be clear that breach of the obligations referred to in article 48.1(b) that have
a clear interstate aspect—like the prohibition of aggression—usually means that
article 42(a) is equally applicable. Moreover, the breach of a multilateral obliga-
tion referred to in article 48.1 may at the same time constitute a breach of a purely
bilateral obligation, as for example an obligation the performance of which is the
subject of diplomatic protection.
Although the ideas underlying article 48 are relatively uncontroversial, some
aspects of the final version have provoked scholarly debate. For one, several com-
mentators have criticized the absence of a link between the concept of peremptory
norms and the generality of standing under article 48.²⁰⁹ The argument that this
is exactly one of the important improvements of the final ILC Articles is however
persuasive. Crawford admits that ‘[t]he examples which the International Court
has given of obligations towards the international community as a whole all con-
cern obligations which, it is generally accepted, arise under peremptory norms
of general international law.’ And that ‘[l]ikewise the examples of peremptory
norms given by the Commission in its commentary to what became article 53
²⁰⁹ Cf eg PM Dupuy (2002) 1075. See for the related argument that arts 40, 41, 42, and 48
should all have referred to obligations owed to the international community as a whole L-A
Sicilianos (2002) 1141.
of the Vienna Convention [on the law of treaties] involve obligations to the inter-
national community as a whole.’²¹⁰ However the reality that ‘ jus cogens rules
necessarily apply erga omnes’²¹¹ and the fact that jus cogens norms and obliga-
tions owed to the international community as a whole are in practice concepts
covering the same group of rules does not sustain a formal link between the two
concepts. A generalized legal interest in compliance of certain obligations does
not derive from the non-derogable quality of the norms these obligations arise
from per se but from the fact that these non-derogable norms protect the public
order of the international community.²¹² It is moreover noted that a formal link
between a serious breach of peremptory norms and standing to invoke respon-
sibility is even less desirable: while peremptory norms are at least identifiable
with a special category of erga omnes obligations, namely those obligations owed
to the international community as a whole; the category of breaches with which
articles 40 and 41 are concerned is more limited in scope than that defined in
article 48.1(b).
So how do the findings of this brief excursion relate to our research question? It
must at the outset be pointed out that the reliance on the concept of international
crimes in the Ferrini case is remarkable, to say the least. While the concept is
accepted within the context of individual responsibility under international law,
its use in relation to states is, as we saw above, far from uncontroversial. More
importantly, the provisions of the ILC Articles do not offer a fertile soil for the
assertion of competence of national courts over violations of jus cogens norms or
obligations erga omnes. In brief it can be said that the concepts have affected the
traditional view that state responsibility is not graded to gravity and that invo-
cation of responsibility is reserved to the state whose individual right has been
violated.²¹³
The concept of obligations erga omnes is reserved for arguments related to the
legal interest of states in compliance with certain norms. The concept secures
enlarged standing of states in existing international procedures and enforce-
ment mechanisms and offers a policy argument in favour of strengthening and
developing these procedures and mechanisms. Apart from the enlarged rules on
standing the concept offers, together with the jus cogens concept, a basis for the
principle of universal jurisdiction over violations of these norms.²¹⁴ This jurisdic-
tional basis should however not be confused with the question of competence of
the court. The reasoning that ‘[i]f all states may be deemed to have a legal interest
²¹⁰ J Crawford (2002) 244.

²¹¹ M Byers (1999) 200.
²¹² One could of course envisage a central role for the concept of ‘public order of the inter-
national community’ in arts 40, 41 and 48. However, the category of obligations erga omnes with
which art 48.1(a) is concerned would still escape this uniform approach. It is probably preferable to
set out the link between the articles in a separate interpretative statement.
²¹³ Cf for the traditional view D Anzilotti, Teoria generale della responsabilità dello stato nel
diritto internazionale (1902) 84ff.
²¹⁴ Cf Prosecutor v Tadić (ICTY, 1995) § 59; Prosecutor v Furundžija (ICTY, 1998) § 156.
in the protection of the fundamental rights of the human being, the exercise of
jurisdiction over foreign states violating such rights is to be admitted in light
of the greater interest that the international community has in the protection of
such values’²¹⁵ suffers from such confusion.
A jus cogens exception to state immunity should be based on the particular
consequences accepted to attach to breaches of peremptory norms. Such con-
sequences are however only accepted as regards serious breaches and are more
importantly limited in scope. In the first place article 41.1 lays down—de lege
ferenda—a positive duty for states to cooperate to bring to an end through lawful
means any such breach. The provision however does not allow states to use means
that they normally would not have but rather obliges the use of those means regu-
larly available. At the risk of stating the obvious, civil proceedings in the national
courts of one state—apart from the fact that they usually concern a claim for
damages rather than cessation of the breach—do not suddenly qualify as lawful
means falling under the obligation.
The obligation laid down in article 41.2 not to recognize as lawful a situation
created by a serious breach, nor render aid or assistance in maintaining that situ-
ation is at times relied on in the argumentation in favour of a human rights excep-
tion. It has been argued that the grant of state immunity supports illegality,²¹⁶ or
even that the grant of state immunity makes the forum state an ‘accomplice to
the act’.²¹⁷ Also Bianchi has noted that ‘to uphold the claim of immunity would
have the undesirable effect of supporting the unlawfulness of the foreign state’s
acts’.²¹⁸ In the Greek case Prefecture of Voiotia v Federal Republic of Germany
the Court of First Instance reasoned that ‘[t]he recognition of immunity by a
national court for an act that is contrary to jus cogens would be tantamount to
collaboration by that national court in an act that is strongly condemned by the
international community’.²¹⁹ And as we saw earlier, the Italian Supreme Court
also alluded to this provision in the Ferrini case.
These arguments are however not persuasive. In the first place, the grant of
state immunity is neutral as to the lawfulness of the behaviour of the foreign
state complained of. Moreover, immunity for acts committed in the exercise of
²¹⁵ A Bianchi (1997) 437. SA Richmann (1993) 985 takes the confusion even a step further.
He argued that states not only have the right to use universal jurisdiction but that ‘customary
international law obliges [them] to use it. It is an obligation erga omnes . . . each state, according to
this doctrine, is legally obliged or compelled to protect certain rights, since all states are interested
parties. . . . Thus, under the erga omnes doctrine, each state has an obligation to protect peremptory
norms of international law due to their shared interest in that protection.’
²¹⁶ JJ Paust (1983) 226.
²¹⁷ AC Belsky et al (1989) 401, fn 198: ‘If a domestic court grants sovereign immunity to a state
that has violated a rule of jus cogens, it is recognizing a sovereign right which does not exist. The
tribunal could be viewed as violating the principle of nonrecognition and thus be considered an
accomplice to the act.’
²¹⁸ A Bianchi (1997) 437.
²¹⁹ See the case note by I Bantekas in (1998) 92 AJIL 765, 766. Cf also Prosecutor v Furundžija
(ICTY, 1998) § 155.
state authority under international law is not a protection of otherwise existing

jurisdiction but a necessary division of competences between courts. The obli-
gation of non-recognition is, as Lauterpacht explained, ‘based on the view that
acts contrary to international law are invalid and cannot become a source of
legal rights for the wrongdoer’.²²⁰ This rationale translates poorly to the grant of
state immunity in respect of allegations of acts contrary to international law. The
immunity of states from foreign jurisdiction in respect of acta jure imperii does
not emanate from the violation of international law. The fact that the immunity
appears to follow the act since it is only invoked when the act is challenged may
confuse. The relation between the right and the violation is however not differ-
ent from the right to non-interference and the violation of international human
rights law.
In sum, while the two concepts have expanded the rights and duties of other
states to take action against certain breaches of international law it cannot be
argued that jus cogens norms are afforded ‘superior means of enforcement’ and
that therefore the exercise of jurisdiction over allegations of jus cogens violations is
justifiable.²²¹ It cannot be convincingly argued that the concept of jus cogens rules
and erga omnes obligations have limited the rights of states under the law of state
immunity.
In this respect one radical argument advanced by several scholars can equally
not be sustained. The argument runs as follows:
[w]here a nation violates jus cogens . . . it steps outside the boundaries drawn by the inter-
national community for itself. It thus forfeits the privileges accorded to the members.
In other words, as an outlaw, it has no claim to deference and respect . . . There may have
been a time when sovereign immunity was granted unconditionally. Today it should be
considered a privilege contingent on compliance with at least the most fundamental rules
which the community of nations has set for itself. It makes no sense to recognize uncon-
ditionally binding norms of international law and at the same time shield the perpetra-
tors who violate these norms from legal action.²²²
In other words, outlaw—or pariah—states do no longer enjoy the rights and
privileges of sovereign states under international law.
This idea also seems to be reflected in the terrorist state exception in the US
FSIA.²²³ The US concept of ‘rogue states’ underlies the 1996 amendment of
²²⁰ H Lauterpacht, Recognition in International Law (1947a) 420.

²²¹ Cf for the argument K Bartsch and B Elbering (2003) as well as the scholars mentioned earl-
ier in this section.
²²² M Reimann (1995) 423. M Rosen, ‘The Alien Tort Claims Act and the Foreign Sovereign
Immunities Act: A Policy Solution’ (1998) 6 Cardozo Journal of International and Comparative
Law 461, 514; J Kokott (1995) 148. This was also the argument relied on by the lower court in the
Princz case. Judge Sporkin reasoned that a ‘government which stands in the shoes of a rogue nation
like the likes of Nazi Germany is estopped from asserting U.S. law in this fashion’. 813 F supp 22
(DC for the District of Columbia, 1992) 26. Cf also Brief of Amici Curiae The Anti-Defamation
League et al., quoted in Princz v Federal Republic of Germany (US, 1994) 1173.
²²³ Cf § 2.1 above.
the FSIA to include an exception for human rights abuses and terrorist activity
which applies only to foreign states designated ‘state sponsor of terrorism’ by the
executive.²²⁴
It may be clear that there is no basis whatsoever for the sweeping argument
that states that violate jus cogens norms forfeit their right to rely on the rule of
state immunity altogether. The idea of outlaw states that cannot invoke rights
under primary or secondary rules of international law recalls outdated distinc-
tions between civilized nations that are part of the ‘Family of Nations’ and bar-
baric people that are not.²²⁵ Statehood is an absolute, not a relative notion. More
importantly, the concepts of jus cogens norms and erga omnes obligations operate
not to oust violating states from the international legal order but rather attempt
to provide tools to effectively deal with community interests and particularly
heinous acts threatening those interests within that order and as against sovereign
states forming part of it.
This study asserts that the terrorist state exception to the FSIA causes the United
States to violate its obligations under international law. Much seems changed
since Chief Justice Marshall observed in 1825 that ‘[n]o principle of general law
is more universally acknowledged than the perfect equality of nations.’²²⁶ The
entertainment of claims against ‘rogue’ states for payment of damages suffered as
a result of human rights violations and terrorist acts is illegal under international
law.²²⁷
This opinion is shared by the US Departments of State and Justice. The
Departments strongly opposed the provisions of the AEDPA that amended the
FSIA to include the exception. In hearings on these provisions the Department
of State’s representative considered that ‘[f]undamental principles of sovereignty
and international law are implicated in determining the extent to which foreign
states should be responsible to private persons in the courts of other states.’²²⁸
²²⁴ Cf P Minnerop, ‘Rogue States—State Sponsors of Terrorism?’ (2002) 3 German Law

Journal.
²²⁵ Cf J Lorimer, Institutes of the Law of Nations (1883) i 101–3; L Oppenheim, (1905) i 30–4.
Cf also FR Téson, ‘The Kantian Theory of International Law’ (1992) 92 CLR 53. In the eighteenth
century international law was considered only to apply to European states cf JJ Moser, Grund-
Sätze des Europäischen Völcker-Rechts in Kriegs-Zeiten (1752); GF Von Martens, Précis du Droit des
Gens Moderne de l’Europe (3rd edn, 1821); KG Günther, Europäisches Völkerrecht in Friedenszeiten
(1787) i. Cf in general B Kingsbury, ‘Sovereignty and Inequality’ (1998) 9 EJIL 599.
²²⁶ The Antelope 23 US (10 Wheat) 66 (US, S Ct, 1825) 122.
²²⁷ The problematic nature of the exception is only compounded by the ease with which the
courts accept the rogue states to be responsible for terrorist activity. A case that pointedly illustrates
this is Smith and Soulas v The Islamic Emirate of Afghanistan and Iraq (US, 2003). The court in this
case condemns the state of Iraq to pay 64 million dollars to the relatives of two victims of the terror-
ist attack on the World Trade Centre in New York on 11 September 2001.
²²⁸ Foreign Terrorism and US Courts: Hearings before the Subcommission on Courts and
Administrative Practice of the Senate Commission on the Judiciary, 103rd Congress 2nd Session
13 (1994) (Statement of JS Borek, Deputy Legal Advisor to the US State Department). Cf also the
statement of S Schifter (Legal Advisor of the Department of Justice). Cf also F De Vittor, (2002)
607; WP Hoye, ‘Fighting Fire with . . . Mire? Civil Remedies and the New War on State-Sponsored
Terrorism’ (2002) 12 Duke Journal of Comparative and International Law 105, 137ff.
The Department of State stated that other states limited the exception to state
immunity in respect of tort claims to acts committed within the forum state and
that it was unaware of ‘any instance in which a state permits jurisdiction over
such tortious conduct of a foreign state without territorial limitations.’²²⁹ The
Department of State cautioned that ‘[i]f we deviate from that practice and assert
jurisdiction over foreign states for acts that are generally perceived by the inter-
national community as falling within the scope of immunity, this would tend
to erode the credibility of the FSIA. We have made substantial efforts over the
years to persuade foreign states to participate in our judicial system—to appear
and defend in actions against them under the FSIA. That kind of broad partici-
pation serves the interests of all. If we expand our jurisdiction in ways that cause
other states to question our statute, this could undermine the broad participation
we seek. It could also diminish our ability to influence other countries to aban-
don the theory of absolute immunity and adopt the restrictive view of sovereign
immunity, which the United States has followed for over forty years.’²³⁰
The irony of the US terrorist state exception is striking. In the first place, the US
lags behind in the efforts of the international community to enhance the effect-
iveness of international human rights law on the international level. As Slaughter
and Bosco aptly noted ‘[t]he juxtaposition of this increased involvement of US
courts in foreign affairs with the continued American refusal to participate in
bodies like the International Criminal Court creates the image of a country happy
to haul foreign defendants into its own courts while stubbornly resisting even the
remote possibility that its own citizens might be called to account.’²³¹ Second,
the US courts have not proven particularly avid to test the acts of the United
Others have argued that the act does not go far enough, cf eg D Mackusick, ‘Human Rights vs.
Sovereign Rights: The State Sponsored Terrorism Exception to the Foreign Sovereign Immunities
Act’ (1996) 10 Emory International Law Review 741, 769; N Roht-Arriaza, ‘The Foreign Sovereign
Immunities Act and Human Rights Violations: One Step Forward, Two Steps Back?’ (1998) 16
Berkeley Journal of International Law 71, 81; RT Micco, ‘Putting the Terrorist-Sponsoring State in
the Dock: Recent Changes in the Foreign Sovereign Immunities Act and the Individual’s Recourse
against Foreign Powers’ (2000) 14 Temple International and Comparative Law Journal 109, 142.
²²⁹ ibid.
²³⁰ ibid. In 2000 the FSIA was again amended to enhance the possibilities to execute judge-
ments under the terrorist state exception (Victims of Trafficking and Violence Protection) Act
of 2000, PubLNo 106–386, § 2002 (The Justice for Victims of Terrorism Act), 114 Stat. 1464,
1542–3: 28 USC § 1610). The amendment made it, inter alia, possible to attach ‘blocked’ property
of foreign states pursuant to section 602 of the Foreign Assistance Act of 1961 and the International
Emergency Economic Powers Act but allowed the President to waive the provision that makes
blocked assets available for attachment, § 1610(f)(3). In light of the above considerations it is
unsurprising that President Clinton moved quickly to issue a blanket waiver on the same day the
Act entered into force: Presidential Determination No 2001–03, 65 Fed Reg. 66483 (28 October
2000). Cf WP Hoye (2002) for a more detailed discussion of the issue.
²³¹ A Slaughter and D Bosco, ‘Plaintiff ’s Diplomacy’ (2000, issue 5) 79 Foreign Affairs 102,
115. Cf also CH Schreuer (1988) who noted that ‘[a]ssumption of jurisdiction over human rights
violations of other States without the forum State’s participation in [human rights] treaties and
submission to their procedures must create the impression that the primary motive behind such
action is not a concern for human rights but the pursuit of partisan political ends.’
States itself to the same international law norms. Third, it is clear that the United
States claims a right for itself that it is not prepared to recognize when exercised
by other states. The pandemonium that broke loose when Belgium threatened
to prosecute US officials for allegations of war crimes in Iraq will only be greater
when a foreign state allows a civil claim to proceed against the US in respect of
these acts. Finally, it must be noted that the theory and practice of the exception
is at odds with the original rationale of the Alien Tort Claims Act—the cradle of
all transnational tort litigation in the US. In 1789 the Act was enacted to signal to
the world that the newly founded United States was a respectable member of the
international community poised to abide by the rules of international law. The
Act was in particular considered necessary to prevent conflicts with other states
over the protection of their nationals in the US legal system.²³² In sharp contrast,
the terrorist state exception fits the unilateralist approach of the United States
to international law issues. It is not designed to live up to the requirements of
international law. It is designed to live up to the wants of the US domestic public
opinion in defiance of the requirements of international law. The US manifests its
superpower status through the use of ‘superpower courts’.²³³
In his dissent in the 1992 decision of the US Supreme Court in US v Alvarez-
Machain Justice Stevens wisely cautioned that the revenge for crimes does not
allow the trampling of the law.²³⁴ His quotation of Thomas Paine provides some
final food for thought in conclusion of this section:
an ‘avidity to punish is always dangerous to liberty’ because it leads a Nation ‘to stretch,
to misinterpret, and to misapply even the best of laws’. [ . . . ] ‘He that would make his own
liberty secure must guard even his enemy from oppression; for if he violates this duty he
establishes a precedent that will reach to himself.²³⁵
It is, in conclusion, noted that the findings of this section are also supported by
a quick glance at two other rules of secondary international law on the exercise
of jurisdiction over states. Both the local remedies rule and the international dis-
pute settlement rule apply unabated to cases concerning allegations of jus cogens
violations.
Complaint procedures under human rights instruments are in principle only
open to individuals that have exhausted the remedies afforded by the state that
allegedly violated the rights secured by the instrument. Also the local remed-
ies rule in the field of diplomatic protection applies irregardless of the nature of
the violation concerned. This is only different when the local remedies available
²³² Cf eg WR Casto, ‘The Federal Court’s Protective Jurisdiction over Torts Committed in
Violation of the Law of Nations’ in RG Steinhardt and A D’Amato (eds), The Alien Tort Claims Act:
An Analytical Anthology (1999) 119; A D’Amato, ‘The Alien Tort Statute and the Founding of the
Constitution’ in RG Steinhardt and A D’Amato ibid 169; A-M Burley, ‘The Alien Tort Statute and
the Judiciary Act of 1789: A Badge of Honor’ in RG Steinhardt and A ibid 257.
²³³ A Slaughter and D Bosco (2000) 115.
²³⁴ US v Alvarez-Machain 504 US 655 (US, S Ct, 1992) (dissent Stevens J).
²³⁵ ibid 688, quoting PS Foner (ed), The Complete Writings of Thomas Paine (1945) ii 588.
provide no reasonable possibility of an effective remedy, or when the violation

complained of also constitutes a direct injury to the state of nationality of the
victim.²³⁶
In the 1995 East Timor case the ICJ was asked to consider the relation between
erga omnes obligations and the international dispute settlement rule. Portugal
argued that Australia failed to observe the obligation to respect, inter alia, the
right of the people of East Timor to self-determination and the rights of Portugal
as Administering Power by concluding a treaty with Indonesia concerning
delimitation, exploration and exploitation of the continental shelf in the area of
the Timor Gap. In order to decide the dispute the Court was however required
to rule on the lawfulness of the entry in and continuing presence of Indonesia—
not a party to the proceedings—in East Timor. In fact, Australia asserted that
the claim was only brought against it because, in contrast with Indonesia, it had
accepted the compulsory jurisdiction of the Court under the optional clause. The
Court concluded that a decision on the claim would infringe the international
dispute settlement rule under the principle laid down in the 1954 Monetary Gold
case. In that case, the Court emphasized the ‘well-established principle of inter-
national law embodied in the Court’s Statute, namely, that the Court can only
exercise jurisdiction over a State with its consent’ and established that that means
that not only the parties to the proceedings before it, but also third states whose
rights form the subject matter of the decision must have accepted its jurisdic-
tion.²³⁷ The Court resolutely rejected Portugal’s argument that the Monetary
Gold principle did not apply to the facts of this case because the rights which
Australia allegedly breached were rights erga omnes. It considered that although
the right of peoples to self-determination had indeed an erga omnes character,
the erga omnes character of a norm and the rule of consent to jurisdiction are two different
things. Whatever the nature of the obligations invoked, the Court could not rule on the
lawfulness of the conduct of a State when its judgment would imply an evaluation of the
lawfulness of the conduct of another State which is not a party to the case. Where this is
so, the Court cannot act, even if the right in question is a right erga omnes.²³⁸
Notably, the argument does not expressly rely on the nature of the obligations
of Indonesia that would be implicated in a decision on the claim. Moreover, it
²³⁶ Cf on this J Dugard (Special Rapporteur ILC), Second and Th ird Report on Diplomatic
Protection, (2001 and 2002), UN Doc A/CN.4/514 (2001) and A/CN.4/523 (2002); K Doehring,
‘Local Remedies, Exhaustion of ’ (1997) 3 Encyclopedia of International Law 238; CF Amerasinghe,
Local Remedies in International Law (1990). Cf also arts 48 and 44 of the ILC Articles on State
Responsibility.
²³⁷ Case of the Monetary Gold Removed from Rome in 1943 (ICJ, 1954) 32. Cf also Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Jurisdiction
and Admissibility), ICJ Reports 1984 169, 431; Certain Phosphate Lands in Nauru (Nauru v
Australia) (Preliminary Objections), ICJ Reports 1992 240, 261–2, § 55: question is whether the
determination of the state’s responsibility is a prerequisite for a decision to be taken on the claim
at issue.
²³⁸ East Timor (ICJ, 1995) 102, § 29.
could be argued that the Court did not consider the influence of the concept of
jus cogens on the international dispute settlement rule. To attempt to thus limit
the significance of the ruling is clutching at straws. The statement of the Court
is unambiguous in its rejection of a link between the character of a norm and the
rule of consent to jurisdiction. Moreover, the right to self-determination is widely
acknowledged to have jus cogens status and also the Court confirmed that it is
‘one of the essential principles of contemporary international law’.²³⁹
In fact, in the 2006 decision in Armed Activities on the Territory of the Congo
(Democratic Republic of the Congo v Rwanda) the Court removed all doubts stating
that ‘the fact that a dispute relates to compliance with a norm having [jus cogens]
character . . . cannot of itself provide a basis for the jurisdiction of the Court to
entertain that dispute. Under the Court’s Statute that jurisdiction is always based
on the consent of the parties.’²⁴⁰
The East Timor case establishes, as one scholar aptly put it, that ‘the allegation
of breach of an obligation erga omnes . . . is no “open sesame” to universal judicial
action.’²⁴¹ The decision in Congo v Rwanda confirms that the same is true for the
allegation of a breach of a jus cogens norm.
2.3.2.4 Conventional law

In addition to principled argumentation relying on the particular serious nature
of certain human rights violations, scholars and plaintiffs have developed the
more pragmatic argument that certain treaty obligations of states regarding the
protection of human rights are incompatible with the invocation of immunity
when such rights have been violated. States, they argue, have waived their rights
under the law of state immunity by accession to the convention.²⁴² It must be
realized that only the conventional obligations of the defendant state can amount
to a coherent state of the law argument. The obligations of the defendant state
under the human rights treaty must evidence an acceptance of the jurisdiction of
foreign national courts—or a waiver of immunity under more traditional state
immunity reasoning. A clash of obligations of the forum state under a human
rights treaty with its obligations under the law of state immunity only gives rise
to a forceful policy argument against the grant of state immunity. This type of
argument is discussed in section 3 of this chapter.²⁴³
²³⁹ ibid.
²⁴⁰ Armed Activities on the Territory of the Congo (ICJ, 2006) § 64.
²⁴¹ D Alland, ‘Countermeasures of General Interest’ (2002) 13 EJIL 1221, 1235.
²⁴² Cf eg A Bianchi (1997) 423ff ; KC Randall, Federal Courts and the International Human
Rights Paradigm (1990) 96; JJ Paust (1985); JJ Paust (1983); WF Pepper (1992) 377; HG Schermers,
‘Diplomatic Immunity in Modern International Law’ in E Denters and N Schrijver (eds), Reflections
on International Law from the Low Countries (1998) 156, 163.
²⁴³ It should be noted that Section 1604 of the US FSIA does limit the scope of the rule of state
immunity on the basis of pre-existing conventional obligations of the US. It provides that the rule
of state immunity is ‘[s]ubject to existing international agreements to which the United States is a
party at the time of enactment of this act.’
The argument that states waive their immunity by signing and ratifying human
rights treaties was first tested in Frolova v Union of Soviet Socialist Republics.²⁴⁴
Plaintiff in this case had argued that the Soviet Union had implicitly waived
its state immunity defence when it signed the United Nations Charter and the
Helsinki Accords.²⁴⁵ The court set out to emphasize that ‘courts rarely find that
a nation has waived its sovereign immunity, particularly with respect to suits
brought by third parties, without strong evidence that this is what the foreign
state intended’ and that ‘waiver would not be found absent a conscious decision
to take part in the litigation’.²⁴⁶ It resolutely rejected the argument, holding that
there was ‘absolutely no evidence from the language, structure or history of the
agreements at issue that implies a waiver of the U.S.S.R.’s sovereign immunity’.
The ‘vague, general language’ of the agreements did not support the argument.
It cannot be concluded, the court held, that states anticipated the exercise of
jurisdiction by US courts when they signed the agreements.²⁴⁷ This strict inter-
pretation was confirmed by the Supreme Court in Argentine Republic v Amerada
Hess Shipping Corporation. The court held that a foreign state does not ‘waive its
immunity under [the act] by signing an international agreement that contains no
mention of a waiver of immunity to suit in the United States courts or even the
availability of a cause of action in the United States.’²⁴⁸
Interest in the implied waiver argument has been revived by the decisive role
accorded to the 1984 Convention against Torture in the decision of the House
of Lords in the Pinochet case.²⁴⁹ Fox wondered in this regard why the obliga-
tion to provide ‘fair and adequate compensation to the victim’—article 14 of the
Torture Convention—is not equally inconsistent with the retention of a plea of
state immunity.²⁵⁰
Three observations are warranted. In the first place, it must be realized that the
obligation to provide a remedy for human rights violations does not apply to vio-
lations committed by foreign state officials abroad. Human rights treaties oblige
a state at most to provide remedies for human rights violations committed within
its jurisdiction, or by its state officials. An early draft of article 14 of the Torture
²⁴⁴ Frolova v Union of Soviet Socialist Republics (US, 1985).

²⁴⁵ ibid 376. Section 1605(1)(a) FSIA.
²⁴⁶ ibid 377.
²⁴⁷ ibid 378. Cf differently Von Dardel v Union of Soviet Socialist Republics (US, 1985).
²⁴⁸ Argentine Republic v Amerada Hess Shipping Corp (US, 1989) 442. Cf also Denegri v Republic
of Chile (US, 1992); Siderman de Blake v Republic of Argentina (US, 1992); Smith v Socialist People’s
Libyan Arab Jamahiriya (US, 1996); Princz v Federal Republic of Germany (US, 1994); Von Dardel v
Union of Soviet Socialist Republics (US, 1990); Hwang Geum Joo v Japan (US, 2001); Sampson v
Federal Republic of Germany 975 F Supp 1108 (US, DC for the Northern District of Illinois,
1997).
²⁴⁹ Pinochet no 3, cf ch 5 § 2.3.1.2 above.
²⁵⁰ H Fox (1999) 700. The article provides that ‘[e]ach State Party shall ensure in its legal system
that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate
compensation, including the means for as full rehabilitation as possible. In the event of the death of
the victim as a result of an act of torture, his dependants shall be entitled to compensation.’
Convention had explicitly limited the obligation to acts of torture ‘committed
in any territory under its jurisdiction’. Most commentators agree that the phrase
was omitted because it was superfluous. The limitation, they argue, is implicit in
the article and the Convention.²⁵¹ The latter position finds support in the 2004
decision of the Canadian Court of Appeal for Ontario in Bouzari and Others v
Islamic Republic of Iran.²⁵² Bouzari had argued that Canada has an obligation
to provide an exception to state immunity for civil actions for torture commit-
ted abroad by a foreign state under article 14 of the Torture Convention. The
court accepted the opinion of Greenwood—who had been asked to give expert
evidence on international law—that article 14 only requires Canada to pro-
vide a civil remedy for torture committed within its jurisdiction. It pointed out
that while the text of the Convention itself provides no conclusive answer, state
practice, including the travaux préparatoires of the Convention, is clear on the
territorial character of the obligation.²⁵³ Accordingly, the obligation to provide a
remedy would only apply to acts of foreign state officials committed within the
territory of the forum state.
In its 2006 decision in the case of Jones v Saudi Arabia the House of Lords
reasoned along the lines of the Bouzari case when it held that article 14 ‘requires a
private right of action for damages only for acts of torture committed in territory
under the jurisdiction of the forum state’.²⁵⁴
Second, the right to a remedy should be clearly distinguished from the right of
access to court. The remedy provided must be effective to ensure compliance with
the prohibition to violate human rights but does not necessarily entail access to
the judicial authorities of a state.²⁵⁵ Accordingly, while the right to a remedy may
²⁵¹ See A Byrnes, ‘Civil Remedies for Torture Committed Abroad: An Obligation under the
Convention against Torture?’ in C Scott (ed), Torture as Tort, Comparative Perspectives on the
Development of Transnational Human Rights Litigation (2001) 537, 542–9. Cf also JF Murphy,
‘Civil Liability for the Commission of International Crimes as an Alternative to Criminal
Prosecution’ (1999) 12 Harvard Human Rights Journal 1, 27 and 36; R Garnett, ‘The Defence
of State Immunity for Acts of Torture’ (1997) 18 Australian Yearbook of International Law 97,
109–10. On ratifying the Convention, the United States issued an interpretive declaration indi-
cating that it understood article 14 to require a state to provide a private right of action for dam-
ages only for acts of torture committed within the jurisdiction of that state, see (1991) 12 Human
Rights Law Journal 276. Cf however the Recommendations of the Committee against Torture in
its Concluding Observations on Canada in 2005, CAT/C/CR/34/CAN, § 5, sub f.
²⁵² Bouzari and Others v Islamic Republic of Iran (Canada, 2004). Cf also the 2002 decision of
the Ontario Superior Court of Justice in the case, 124 ILR 427.
²⁵³ ibid § 69–82. Cf also 124 ILR 427, 438–41.
²⁵⁴ Jones v Saudi Arabia (UK, 2006) § 25, and also § 46, 56–7. Cf also A Byrnes (2001) 540
fn 9. It is noted that the Court of Appeal had phrased it slightly different. The court wrote that ‘art
14(1) is dealing with (no more than) a right of redress in the legal system of the state . . . by whose
official . . . the alleged act of torture was committed’, implying that the question where the torture
was committed is irrelevant, Jones v Saudi Arabia and Abdul Aziz and Mitchell a.o. v Al-Dali a.o.
(UK, 2004) § 21.
²⁵⁵ Cf Leander v Sweden Series A–116, 9 EHRR 433 (ECHR, 1987) 457. Cf also Z and Others v
United Kingdom 34 EHRR 97 (ECHR, 2001) 141.
be violated when there is no access to court because of the rule of state immunity,
there is no direct clash between the immunity and the right.
Finally, it is recalled that the reasoning of the Lords in the Pinochet case was
based on the specific definition of the crime of torture. The Lords argued that
there could be no immunity in regard to the crime only because it is by definition
committed in an official capacity. Since the definition of the crime is co-extensive
with the definition of official immunity the Lords concluded that the Torture
Convention would be a dead letter if functional immunity were to exist in respect
of the allegation of torture.²⁵⁶ Accordingly, they concluded, the states that agreed
to this obligation must have done so under the understanding that functional
immunity would not apply. It is fair to say that had the Convention regarded a
crime that can also be committed by private individuals the undertaking to pros-
ecute the crime on the basis of universal jurisdiction would not have similarly
constituted an implied waiver.
These three factors contrast the conventional obligation to exercise universal
jurisdiction over the crime of torture with the conventional obligation to provide
a remedy for violations of human rights in general committed within the jurisdic-
tion of, or under the responsibility of the forum state. The obligation to provide a
remedy is not co-extensive with the immunities of states and their officials under
international law. This author therefore agrees with the US courts that the argu-
ment that states that accept a conventional obligation to protect human rights,
and more in particular the right to a remedy in respect of violations of these
rights, therewith accept the exercise of foreign national jurisdiction in respect
of allegations that they have violated these obligations is not tenable. It severely
overstretches the concept of implied waiver.²⁵⁷
²⁵⁶ The Lords formulated their arguments in seven individual opinions that make it impossible
to individuate one ratio decidendi. In fact, only some Lords qualified the ratification of the Torture
Convention as an implied waiver of immunity cf further ch 5 § 2.3.1.2 above. Cf further on the
difference between obligations in criminal and civil proceedings: Von Dardel v Union of Soviet
Socialist Republics (US, 1990) (on the Vienna Convention on the Prevention and Punishment of
Crimes against Internationally Protected Persons, including Diplomatic Agents (1973); Hwang
Geum Joo v Japan (US, 2001) (on the Potsdam Declaration (1945).
²⁵⁷ Cf in a similar vein F De Vittor (2002) 581–4; M Karagiannakis (1998) 20. It is noted
in comparison that the ICJ has held with regard to the local remedies rule that it is ‘unable
to accept that an important principle of customary international law should be held to have
been tacitly dispensed with, in the absence of any words making clear an intention to do so’:
Elettronica Sicula SpA (ELSI) (ICJ, 1989) 42, § 50. The baffl ing nature of the argument may
be illustrated by reference to the ECHR. The right of individual petition (art 34 ECHR) only
became an integral part of the Convention after 1998. The effect of the implied waiver construc-
tion would be that member states were free not to accept the right of individual petition under
the specifically developed conventional enforcement mechanism designed with an eye to an
independent and marginal review of the conduct of member states but automatically accepted
a previous non-existing competence of the national courts of all other member states over that
conduct.
2.4 Concluding Observations

International human rights law and the related concepts of jus cogens norms and
erga omnes obligations have not affected the rule of state immunity. The absence
of state practice is not in itself a sufficient rebuttal of the argument that a human
rights exception to state immunity exists. In the Harvard Law Review of 1897
Mr Justice Holmes recounted the tale of a Vermont judge before whom a suit was
brought by one farmer against another for breaking a churn. The judge ‘took time
to consider, and then said that he had looked through the statutes and could find
nothing about churns, and gave judgment for the defendant.’²⁵⁸ The argument
that there is no human rights exception to state immunity because there is no
state practice supporting such an exception suffers from a comparable rigidity
towards the epistemology of the law. In chapter 2 of his study it was argued that
reason and interpretation are essential tools of judges. Especially the rule of state
immunity which is said to find its basis in the principle of sovereign equality
rather than in the practice of states requires judges to look beyond state immun-
ity practice.
However, the Court of Appeal for Ontario was right to point out in the
Bouzari case that ‘the extent of the prohibition against torture as a rule of jus
cogens is [not] determined . . . by any particular view of what is required if it is to
be meaningful’.²⁵⁹ Arguments of proponents of a human rights exception to state
immunity prove incoherent after critical analysis of the parameters of the rule of
state immunity, the concepts of jus cogens norms and erga omnes obligations and
Both the hierarchy of norms argument, and the secondary rules argument fail
to convince. In respect of the latter argument it is good to recall the words of
Judge Tanaka in his dissent in the South West Africa Cases.²⁶⁰ While the judge
cautioned against a too formalistic interpretation of international law he did
underline that he did not propose to deduce rules from mere necessity or desir-
ability but from the raison d’ être and the theoretical construction of the system
of relevant rules. His proposal explicitly acknowledged the limits of voluntarism,
setting out to construe the ‘reasonably assumed intention’ of states.²⁶¹
In conclusion we should examine one of the arguments of the Italian Supreme
Court in the Ferrini case that has not yet been discussed on its merits.²⁶² The
court argued that functional immunity exists in order to prevent an indirect
implication of foreign states, and that there is therefore no reason to sustain state
immunity in cases concerning international crimes when it is widely accepted
²⁵⁸ OW Holmes, ‘The Path of the Law’ (1897) 10 HLR 456, 474–5.
²⁵⁹ Bouzari and Others v Islamic Republic of Iran (Canada, 2004) § 90.
²⁶⁰ South West Africa Cases (ICJ, 1966) Dissenting Opinion Judge Tanaka, 248.
²⁶¹ ibid 277–8.
²⁶² Ferrini v Repubblica Federale di Germania (Italy, 2004).
that there is no functional immunity in respect of such crimes.²⁶³ The argument

had previously been advanced by Bianchi in response to the Pinochet case. He
asserted that ‘once it is held that no plea of immunity is available to state officials
for crimes against international law which presuppose or require state action, the
immunity of the state can be easily circumvented by bringing criminal proceed-
ings against state officials’.²⁶⁴ Since ‘the immunity ratione materiae of state offi-
cials is necessary not to circumvent the immunity of the state’, he argued, the
absence of functional immunity can only mean the absence of state immunity.
Reading chapters 3 and 5 of this study reveals the fallacy of this argument.
Only when a suit against a foreign state officials is in fact a suit against the state
does the rule of functional immunity apply. When foreign state officials are sued
in respect of crimes against international law they cannot say that they performed
those acts as the arm of the state. Foreign state officials can be sued in their per-
sonal capacity in respect of crimes against international law. Functional immun-
ity is absent exactly because the state is not indirectly impleaded in such claims.
A claim in respect of the same acts directed against the state itself is therefore of a
fundamental different character.
In conclusion it is noted that states may of course decide to give the jus cogens
concept more body. As Crawford notes, ‘the legal regime of serious breaches
is . . . in a state of development’.²⁶⁵ Proposals de lege ferenda to enhance the influ-
ence of the concept of jus cogens norms and erga omnes obligations on the law of
state responsibility are therefore welcome. An example thereof can be found in
the First Report on Diplomatic Protection submitted by Rapporteur Dugard to
the International Law Commission in 2000.²⁶⁶ While states have, in principle,
discretion in the exercise of diplomatic protection on behalf of their nationals,
the Rapporteur proposed the following article to be included:
1. Unless the injured person is able to bring a claim for such injury before a competent
international court or tribunal, the State of his/her nationality has a legal duty to exer-
cise diplomatic protection on behalf of the injured person upon request, if the injury
results from a grave breach of a jus cogens norm attributable to another State.
2. The State of nationality is relieved of this obligation if:
(a) The exercise of diplomatic protection would seriously endanger the overriding
interests of the State and /or its people;
(b) Another State exercises diplomatic protection on behalf of the injured person;
²⁶³ ibid § 11.

²⁶⁴ A Bianchi, ‘Immunity versus Human Rights: The Pinochet Case’ (1999) 10 EJIL 237. Cf also
A Bianchi, ‘Individual Accountability for Crimes against Humanity: Reckoning with the Past,
Th inking of the Future’ (1999) 19 SAIS Review 97, 113. Another scholar wrote in this regard that
‘holding individuals rather than states liable for human rights violations contains an element of
hypocrisy’, HM Osofsky (1998) 40 and 52.
²⁶⁵ J Crawford (2002) 253.
²⁶⁶ JR Dugard (Special Rapporteur ILC), First Report on Diplomatic Protection (2000), UN
Doc A/CN.4/506 (2000), art 4 and commentary.
(c) The injured person does not have the effective and dominant nationality of the
State.
3. States are obliged to provide in their municipal law for the enforcement of this right
before a competent domestic court or other independent national authority.
The proposal received a tepid response from the Commission. The general view
was, as we read in the annual report on the work of the ILC to the General
Assembly, that the issue was not yet ripe for codification.²⁶⁷ Although the article
was dropped from the project, the discussions within the ILC may contribute to
changes in state practice in times to come.
This section ends with two cautionary remarks in respect of the possibility
that the jus cogens concept were to become a tool to distinguish immune from
non-immune acts of foreign states in the future. As was already pointed out in
the introduction of this section, the criterion of jus cogens violations suffers from
a severe form of circularity. Contrary to other tools of distinction, it anticipates
the outcome of the inquiry into the merits of the case. In addition, one can won-
der whether the lifting of procedural rights of defendants accused of horrible
misdeeds is a desirable option. Faced with the seriousness of the allegations as
a criterion for immunity decisions, Röling has pointed out that the need for the
protection of the law is greatest in the face of severe indignation.²⁶⁸
3 Policy Arguments: The (In)Compatibility of Immunity

Rules and the Fundamental Rights of Individuals
3.1 Introduction
The debate on a human rights exception to state immunity and personal immun-
ity may also be conducted on the essentially different level of policy arguments.
A clash of the obligations owed to other states under immunity rules with the
obligations owed to private individuals under rules of international human rights
law provides a forceful policy argument in favour of a restriction of the immun-
ity rules. Policy arguments precede changing state practice and the consequent
change in the scope of the rule. The issue of debate is not what the scope of the
immunity rule is but what that scope should be. It is recalled here that in this study
the term policy argument should be understood from the perspective of immun-
ity law. The arguments discussed below are of course state of the law arguments
as far as the scope of human rights law is concerned. Private individuals asserting
them in court may obtain a result similar to that which could have been obtained
²⁶⁷ See the Report of the ILC on the work of its 52th session (2000), UN Doc A/55/10 (2000),
§ 450ff.
²⁶⁸ Note of BVA Röling to De Haas v De Staat Indonesië NJ 1962, no 74 (The Netherlands,
Hoge Raad, 1962) 291.
with a successful state of the law argument on the immunity rule. Since judges
may decide that the obligation owed to the private individual should prevail over
the obligation owed to the foreign state, a successful policy argument of this kind
may result in the non-application of the immunity rule. If not, the forum state
is in any case obliged to compensate the private individual whose human rights
were violated.
This section examines the compatibility of state immunity and personal
immunity with the right to a fair trial, the right to a remedy and the right to
effective protection. The exact scope and content of the respective rights may
differ as between the various human rights treaties in which they feature. Since
a detailed examination of the different provisions and respective interpretations
thereof and the inquiry into the scope of customary international law on these
rights would stray us too far from the research question, this study approaches the
issue in principle from the perspective of the European Convention on Human
Rights.
3.2 The Right to a Fair Trial

3.2.1 Introduction
Article 6.1 of the European Convention on Human Rights provides as follows:
In the determination of his civil rights and obligations or of any criminal charge against
him, everyone is entitled to a fair and public hearing within a reasonable time by an inde-
pendent and impartial tribunal established by law.
For the purposes of this study it is important to point out that the article has been
interpreted to guarantee individuals a right to equality of arms,²⁶⁹ as well as a
right of access to court.²⁷⁰
It was explained in the introduction to this chapter that the argument that
the grant of state immunity violates the right to a fair trial—and in particular
the right of access to court—is a revival of the criticism that was once developed
against the absolute state immunity approach. The grant of absolute immunity
to foreign states was generally felt to entail a ‘denial of justice’ to private individ-
uals. This feeling underlay the indignation of the hapless owners of the schooner
Exchange describing their plight to the court:
Your own citizens plundered. Your national rights violated. Your courts deaf to the com-
plaints of the injured. Your government not redressing their wrongs, but giving sanc-
tion to their spoliators. The argument of our opponents allows no remedy to the citizen,
although dispossessed of his property, within the limits of our own territory. Although
²⁶⁹ Neumeister v Austria Series A–8, 1 EHRR 91 (ECHR, 1968); X v Federal Republic of Germany
(1963) 6 Yearbook on the European Convention on Human Rights 520 (EComHR, 1963) 574.
²⁷⁰ Golder v United Kingdom Series A–18, 1 EHRR 524 (ECHR, 1975).
the ship should have been seized in the Delaware, and converted into a public armed
vessel, we are supposed to have no redress.²⁷¹
The early adherence to a restrictive approach was often rationalized from the
perspective of the right of the individual to have his case heard. As the Mixed
Tribunals of Egypt noted when in 1920 a commercial dispute was brought before
it, ‘l’immunité de juridiction dans ce cas serait la négation de la justice puisqu’elle
priverait du secours de celle-ci les individus dont les intérêts se trouvent en conflit
avec les intérêts privés du dit Etat.’²⁷²
The argument was equally relied on by the criticasters of the adherence to the
absolute approach. Lauterpacht, for example, noted that a claim to immunity
often
consists in an unwarranted—and often petty—refusal to satisfy what would otherwise
be a good and enforceable legal claim. It amounts, in fact, to a denial of justice . . . It is this
essential incompatibility of the doctrine of jurisdictional immunity with the principle of
the subjection of the sovereign state to the rule of law which explains the strength—we
might say the vehemence—of the opposition to the maintenance of that doctrine and
the fact that only a diminishing minority of writers are willing to support it. It is this
factor rather than the expansion of the activities of the state and the unfairness of its com-
petition with the less privileged private individual that is the paramount feature of the
situation.²⁷³
Criticism on the absolute approach was at times formulated in terms of article 6
ECHR. In 1968 Pahr, for example, argued that state immunity violates the right
to a fair trial and the right to equality of arms in particular. The rule, he argued,
allows foreign states the advantage of their own courts while private individuals
bear the burden of litigation in an unfamiliar legal system and language contrary
to the normal jurisdictional rules.²⁷⁴
Some scholars argue that the restrictive approach to the state immunity still
raises an issue under article 6 ECHR. In 1997 Bröhmer, for example, asserted that
there is no meaningful difference between acta jure imperii and acta jure gestionis
for the purposes of article 6.1 and concluded boldly that ‘[t]here is no room for
the immunity privilege under the Convention.’²⁷⁵ The question to be answered
in this section is whether the denial of justice argument is indeed equally coher-
ent as against the restrictive rule of state immunity as we know it today.
²⁷¹ The Schooner Exchange v M’Faddon (US, 1812) 128.

²⁷² Hall v Bengoa (Egypt, 1920) 272.
²⁷³ H Lauterpacht (1951) 236. Cf also JF Lalive, (1953) 219; R Jennings and A Watts (eds)
(1992) i 342; Institut de Droit International (Rapporteur I Brownlie), Contemporary Problems
Concerning the Jurisdictional Immunity of States, Plenary Session (1992), Observation of
Lauterpacht, (1992) 64–II AIDI 214, 234.
²⁷⁴ WP Pahr, ‘Die Staatenimmunität und Artikel 6 Absatz 1 der Europaische
Menschenrechtkonvention’ in Mélanges off erts à Polys Modinos, Problèmes des droits de l’ homme et de
l’unification européenne (1968) 222. Cf also J-F Lalive(1953) 217; HG Schermers (1998) 156.
²⁷⁵ J Bröhmer (1997) 163–188, in particular 165, 185–6, and 187. Bröhmer based his conclu-
sion also on an analysis of art 13 ECHR, discussed in § 3.3 below.
In addition, this section will examine whether the comprehensive personal

immunity of diplomatic agents and foreign heads of state is compatible with the
right to a fair trial. At about the same time that Lauterpacht formulated his criti-
cism on the rule of absolute state immunity, Holland wrote that
the recognition of diplomatic immunity in English law clearly infringes the rule of law, in
that it necessitates an exception being made to the doctrine that all men should be equal
before the law and subject to the same laws administered in the same courts.²⁷⁶
This immunity, he added, ‘may cause great hardship to individuals’.²⁷⁷ In the
beginning of the twentieth century Italian courts did not recognize diplomatic
immunity for non-official acts because, as the Court of Cassation of Rome put
it, such a comprehensive immunity is contrary to justice.²⁷⁸ While today a com-
prehensive rule of diplomatic immunity is part of customary international law it
can be questioned whether that rule is compatible with the individual’s right to a
fair trial.
In comparison, it is interesting to note that the Supreme Court of Chile
decided in 1988 that diplomatic and consular immunities could no longer pre-
vent the exercise of the constitutional right of access to court to safeguard rights
and guarantees protected in the constitution.²⁷⁹ In particular, the court held that
rights protected under the constitution prevail over these immunities because
they have a superior status.²⁸⁰ After an intervention of the Chilean Ministry of
Foreign Affairs the Supreme Court was forced to clarify and amend its decisions.
The court declared that its ruling
in no way affects the immunity of jurisdiction referred to in the Vienna Convention on
diplomatic and consular relations . . . since the recourse . . . does not involve in itself sanc-
tions of a criminal, civil or administrative character, this immunity thereby being a bar
to the adoption of coercive measures against the diplomatic agent . . . [and] taking into
consideration the provisions of those Conventions all reports and enquiries ought to be
undertaken through the Ministry of Foreign Affairs.²⁸¹
²⁷⁶ DC Holland, ‘Diplomatic Immunity in English Law’ (1951) 4 Current Legal Problems
81, 106.
²⁷⁷ ibid.
²⁷⁸ Comina v Kite (Italy, 1922) 174.
²⁷⁹ Walter Szurgelies Hoyer et al. v First Counsellor of the Embassy of the Federal Republic of
Germany (Chile, S Ct, 1988) and Manfred Gerhard Skrabs et al v Consul of the Federal Republic of
Germany (Chile, S Ct, 1988), discussed in FO Vicuna, ‘Diplomatic and Consular Immunities and
Human Rights’ (1999) 40 ICLQ 34.
²⁸⁰ The argument should be distinguished from the hierarchy of norms argument discussed
in § 2.2 above. It is not argued that there is no immunity available. Rather, the court relies on the
hierarchy of norms to decide which of the two competing rules prevails and which rule is to be
violated.
²⁸¹ Chile, S Ct (1988), discussed (and trans) in FO Vicuna, (1999) 40 ICLQ 34, 41. Vicuna
argued that the decision distinguished between immunity from jurisdiction and immunity from
enforcement. This author disagrees. The court excludes the exercise of jurisdiction over diplomatic
This rectification however only regards the prevalence of the right of access to
court over the rule of diplomatic immunity. It does not detract from the con-
clusion of the court that the state has clashing obligations under the two rules. In
view of the substantial prejudice caused to private individuals the inquiry into
the compatibility of article 6.1 with immunity rules warrants a reconsideration of
prevailing state practice on diplomatic immunities.
The European Court of Human Rights was asked to decide whether the
restrictive approach to state immunity violates article 6 ECHR in three cases
recently before it. The applicants in McElhinney v Ireland,²⁸² Al-Adsani v United
Kingdom,²⁸³ and Fogarty v United Kingdom²⁸⁴ all complained that the applica-
tion of the rule of state immunity to proceedings instigated by them against for-
eign states before the courts of the respondent states had violated their right of
access to court under article 6.1 of the Convention. The Court decided the three
cases on the basis of roughly identical considerations. It ruled that the rule of state
immunity did indeed raise an issue under article 6.1, but found the rule to have a
legitimate aim and to constitute a proportional restriction of applicant’s right of
access to court. Put bluntly, the Court argued that the grant of state immunity to
foreign states under rules of international law never violates the right of access to
court under article 6.1 of the Convention.
This section sets out to critically discuss the Court’s reasoning in these three
cases on the basis of an analysis of the relation between the obligations of states
under immunity rules and the obligation of states under article 6.1 of the
Convention. Can it indeed be said that these obligations clash and that hence
article 6.1 is always applicable? And, as far as it is applicable, is the Court’s reason-
ing on the balance between the interests protected by article 6.1 and the interests
protected by immunity rules convincing? On the basis of the nature and scope
of the rule of state immunity as set out in chapter 2 of this study and the nature
and scope of personal immunity rules as set out in chapter 4 of this study, and on
the basis of the general framework for testing the legitimacy and proportionality
of restrictions of the rights under article 6.1 developed by the Convention organs
in earlier jurisprudence, both these questions will be answered in the negative.
Although the conclusion that article 6.1 is not violated may be correct in itself, it
will be argued that the decisions have a feeble foundation. The Court, it seems,
has preferred to ignore the complexity of immunity rules in the assessment of the
applicability of article 6.1, and has reduced its control over the margin of appre-
ciation to practically fictitious in its assessment of the question of the article’s
breach.
agents altogether. It is the special nature of the cause of action at hand that allowed a distinction
from the exercise of jurisdiction.
²⁸² McElhinney v Ireland (ECHR, 2001).
²⁸³ Al-Adsani.
²⁸⁴ Fogarty v United Kingdom (ECHR, 2001).
3.2.2 The Strasbourg Framework for Access to Court Complaints

The judgments of the Court in McElhinney v Ireland, Al-Adsani v UK, and Fogarty v
UK built on the legal framework developed by the Strasbourg institutions to test
right of access to court complaints. The framework divides in two principal quer-
ies. In the first place it must be questioned whether article 6.1 is applicable to the
facts of the case. Is there a restriction on the access to court to have a claim relat-
ing to civil rights and obligations determined? If so, it remains to be seen next
whether the restriction violates the right of access to court. The right of access is
not absolute but calls ‘by its very nature . . . for regulation by the state, regulation
which may vary in time and place according to the needs and resources of the
community and of individuals.’²⁸⁵ Restrictions must however not be such that
‘the very essence of the right is impaired’. They must moreover have a ‘legitimate
aim’ and there must be ‘a reasonable relationship of proportionality’ between
the restriction and the aim sought to be achieved.²⁸⁶ In other words, even if
article 6.1 applies it may be that the article is not violated because the restriction
imposed by the respondent state complies with the requirements of article 6.1.
3.2.2.2 Applicability
In the history of Strasbourg jurisprudence we find two distinct arguments chal-
lenging the applicability of article 6.1 to immunity rules.
The most common argument is that the immunity rule places a limit on the
substantive right of individuals. When there is no civil right to be determined
there can arise no issue under article 6.1. Thus, the Commission argued in its
1979 decision in Agee v United Kingdom that
Article 6(1) must be interpreted with due regard to parliamentary immunity as tradition-
ally recognised in the States parties to the Convention . . . In the present case the applicant
cannot complain in the United Kingdom courts of the statements made in Parliament
in view of the doctrine of Parliamentary privilege, which forms part of United Kingdom
law. This affords absolute protection to persons making such statements. Although a per-
son’s rights under domestic law to protection of his reputation generally constitute ‘civil
rights’ within the meaning of Art. 6(1), the applicant does not have any right in United
Kingdom law to protection of his reputation insofar as it may be affected by the state-
ments complained of. Art. 6(1) does not therefore guarantee the right to take proceedings
in respect of these statements, since the applicant has no ‘civil right’ to protection of his
reputation against them.²⁸⁷
This argument accommodates the scope of the substantive right of the individ-
ual to the rule of parliamentary immunity. It relies on the conventional wisdom
²⁸⁵ Golder v United Kingdom (ECHR, 1975) 537.

²⁸⁶ Ashingdane v United Kingdom Series A–93, 7 EHRR 528 (ECHR, 1985) 546.
²⁸⁷ Agee v United Kingdom DR 7, 164 (EComHR, 1976) 175.
that article 6 applies to domestic law as one finds it. It is not possible to cre-
ate by way of interpretation a substantive right which has no legal basis what-
soever in the domestic law of the state concerned. As the Court formulated it in
H v Belgium, ‘Article 6(1) extends only to “contestations” (disputes) over (civil)
“rights and obligations” which can be said, at least on arguable grounds, to be
recognized under domestic law; it does not in itself guarantee any particular con-
tent for (civil) “rights and obligations” in the substantive law of the Contracting
States.’²⁸⁸ Complaints concerning the absence of a remedy under national law
will therefore in general not raise an issue under article 6. In Powell and Rayner v
United Kingdom, for example, the Court rejected the argument that the statutory
bar on the right of action in nuisance in respect of aircraft noise of Section 76.1
of the UK Civil Aviation Act was in violation with their right of access to court.
Since applicants could not claim to have a substantive right under English law
to obtain relief for exposure to aircraft noise there was no civil right recognized
under domestic law to attract the application of article 6.1.²⁸⁹
An absolute deference to this distinction may however render the right of access
to court toothless. Often, procedural limitations to access can easily be cast in the
form of a limitation of the substantive content of a civil right.²⁹⁰ The Court has
therefore ruled in the case of Fayed v United Kingdom that
[w]hether a person has an actionable domestic claim may depend not only on the sub-
stantive content, properly speaking, of the relevant civil right as defined under national
law but also on the existence of procedural bars preventing or limiting the possibilities
of bringing potential claims to court. In the latter kind of case Article 6(1) may have a
degree of applicability. Certainly the Convention enforcement bodies may not create by
way of interpretation of Article 6(1) a substantive civil right which has no legal basis in
the State concerned. However, it would not be consistent with the rule of law in a demo-
cratic society or with the basic principle underlying Article 6(1)—namely that civil claims
must be capable of being submitted to a judge for adjudication—if, for example, a State
²⁸⁸ H v Belgium Series A–127-B, 10 EHRR 229 (ECHR, 1987) 346. Cf also the case of Sporrong
and Lönnroth v Sweden in which the Commission said: ‘whether a right is at all at issue in a particu-
lar case depends primarily on the legal system of the State concerned It is true that that the concept
of a “right” is itself autonomous to some degree. Thus it is not decisive for the purposes of Art 6
para. 1 that a given privilege or interest which exists in a domestic legal system is not classified or
described as a “right” by that system. However, it is clear that the Convention organs should not
create by way of interpretation of Art 6 para 1 a substantive right which has no legal basis what-
soever in the State concerned’, Commission Report (1980) § 150; James v United Kingdom Series
A–98, 8 EHRR 123 (ECHR, 1986) 157–158; Lithgow and Others v United Kingdom Series A–102,
8 EHRR 329 (ECHR, 1986) 393; Holy Monasteries v Greece Series A–301–A, 10 EHRR 9 (ECHR,
1995) 50.
²⁸⁹ Powell and Rayner v United Kingdom Series A–172, 12 EHRR 355 (ECHR, 1990) 366.
²⁹⁰ FJ Hampson, ‘Restrictions on Rights of Action and the European Convention on Human
Rights: The Case of Powell and Rayner’ (1990) 61 BYIL 279, 288, pointed out that the distinction
allowed states to deny rights to a certain group of individuals, ‘for example, if a legislative provision
were to deny to all women the right to bring actions in defamation, . . . they [would have] no cause
of action in domestic law. Article 6 would therefore be inapplicable to the issue since there was no
“civil right” which fell to determined’.
could, without restraint or control by the Convention enforcement bodies, remove from
the jurisdiction of the courts a whole range of civil claims or confer immunities from civil
liability on large groups or categories of persons.²⁹¹
It recognized that ‘[i]t is not always an easy matter to trace the dividing line
between procedural and substantive limitations of a given entitlement under
domestic law. It may sometimes be no more than a question of legislative tech-
nique whether the limitation is expressed in terms of the right or its remedy.’²⁹²
The jurisprudence of Commission and Court does however not excel in clarity on
the question what instruments Strasbourg has to pierce the veil of form to deter-
mine the substantive nature of a rule.
In Dyer v UK the Commission recognized the ‘real threat to the rule of law
[that] could emerge if a State were arbitrarily to remove the jurisdiction of civil
courts to determine certain classes of civil action’.²⁹³ It pointed out that the
removal of jurisdiction could not only be effected through procedural bars but
also through substantive immunities from liability. Since article 6.1 ‘must be read
in the light of the rule of law referred to in the preamble, of which the principle
whereby a civil claim must be capable of being submitted to a judge, is an inte-
gral part’ Convention organs must be allowed some control on the removal of
jurisdiction of courts to determine certain classes of civil claim and the confer-
ral of immunities from liability on certain groups in respect of their actions.²⁹⁴
The applicant in Dyer complained that the exclusion of Crown liability in tort in
respect of injuries arising out of service in the armed forces under section 10 of
the Crown Proceedings Act 1947 violated his right of access to court under article
6.1. The Commission undertook to examine whether the section ‘constitutes an
arbitrary limitation of the applicant’s substantive civil claims’. It emphasized the
special nature and risks of military service and noted that the alternative inval-
idity pension leaves those covered by the rule often better protected than normal
law. The limitation was therefore held not to be arbitrary and article 6.1 was found
not to apply. The approach is somewhat puzzling. The Commission developed a
test that resembles that formulated later by the Court in Ashingdane for the com-
pliance with article 6.1, but now as a sort of preliminary test for the applicability
of article 6.1 to limitations that are substantive in form.²⁹⁵ Article 6 is not applic-
able, rather than not violated when the limitations satisfy the set criteria.
²⁹¹ Fayed v United Kingdom Series A–294–B, 18 EHRR 393 (ECHR, 1994) 429.
²⁹² ibid 430. Lord Hoff mann stated in the Matthews case that the question is ‘a slippery one’,
Matthews v Ministry of Defence [2003] 1 AC 1163 (UK, HL, 2003) § 33.
²⁹³ Dyer v United Kingdom appl no 10475/83, DR 39, 246 (EComHR, 1984) 252 (citing the
Commission Report in the Ashingdane case). Cf also Pinder v United Kingdom 7 EHRR 464
(EComH, 1984) and Ketterich v United Kingdom 5 EHRR 465 (EComHR, 1982).
²⁹⁴ ibid.
²⁹⁵ In the 2003 decision of the House of Lords in the case of Matthews v Ministry of Defence,
(UK, 2003), Lord Bingham of Cornhill did not appreciate the approach of the Commission in
the Dyer, Pinder and Ketterich cases. He questioned ‘whether the Commission was right to ask
The Court however has not unequivocally approved the approach of the
Commission. Although the Court referred to the Dyer case in its somewhat
Delphic statement in Fayed that article 6.1 may have ‘a degree of applicability’
in certain cases, it stuck to traditional interpretations of these concepts when
it came to qualifying a rule as either procedural or substantive in character in
Osman v UK and Z v UK.²⁹⁶
The facts underlying the Osman case were the following. Applicants had filed
a claim of negligence against the police in the UK courts because the police had
failed to appreciate and act on a series of clear warning signs that the person
that eventually murdered their husband and father posed a serious threat to the
Osman family. A court confronted with a claim of negligence is required to find
that the facts of the case disclose a breach of duty of care owed by the defendant
to the plaintiff which has caused harm to the latter, the constituent elements of
a duty of care being the following: whether the damage is foreseeable; whether
there exists a relationship of proximity between the parties; and whether it is
fair, just and reasonable to impose a duty of care in the circumstances. Since the
House of Lords in Hill v Chief Constable of West Yorkshire²⁹⁷ had ruled that the
last criterion shields the police from liability in the context of the investigation
and suppression of crime, the applicants’ claim of negligence was rejected.²⁹⁸
The Osman family filed a complaint in Strasbourg. They argued that the exclu-
sionary rule developed by the House of Lords operated as an absolute immunity
to negligence actions against the police and asked the Court to find that such
immunity violated their right of access under article 6.1 of the Convention. The
respondent state argued that the rule qualified the substantive right and that
hence no issue under article 6.1 arose.
The Court stressed that the contested rule did not ‘automatically doom to
failure such a civil action at the outset but in principle allows a domestic court
to make a considered assessment on the basis of the arguments before it as to
whether a particular case is or is not suitable for the application of the rule’ and
that therefore ‘the applicants must be taken to have had a right’ for the purpose of
applicability of article 6.²⁹⁹
“whether section 10 of the 1947 Act constitutes an arbitrary limitation of the applicant’s substan-
tive civil claims” . . . when in truth the applicant had no substantive civil claim’ (§ 16).
²⁹⁶ Osman v United Kingdom 29 EHRR 245 (ECHR, 1998); Z and Others v United Kingdom
34 EHRR 97 (ECHR, 2001). In the case of Fayed v United Kingdom the Court considered it not
necessary to decide whether the restriction was substantive or procedural in character since the
compliance test would have to take place anyway under art 8, Fayed v United Kingdom (ECHR,
1994) 430–1.
²⁹⁷ Hill v Chief Constable of West Yorkshire [1989] AC 53 (UK, HL, 1988).
²⁹⁸ Osman and another v Ferguson and another [1993] 4 All ER 344 (UK, CA, 1992).
²⁹⁹ Osman v United Kingdom (ECHR, 1998) 312–13, § 138 and 139. Read in conjunction
with the Court’s reasoning on the issue of compliance with art 6.1 this conclusion may raise some
eyebrows. Cf at n 324 below.
The case of Z v UK was more straightforward.³⁰⁰ Applicants had filed a claim

of negligence against the social services arguing that these had failed to protect
them from serious ill-treatment by their mother. The House of Lords decided
that there was no duty of care owed by the social services to the children.³⁰¹ It
held it to be not fair, just and reasonable to hold local authorities liable in negli-
gence in situations in which they were charged with the task of protecting society
from wrongdoings of others. In the determination of the applicability of article
6.1 the Court attached great importance to the fact that at the moment that the
claim was filed no rule on the liability of the social services for negligence existed.
The House of Lords decided ‘a serious and genuine dispute about the existence of
the right asserted by the applicants under the domestic law of negligence’.³⁰²
The Osman and the Z and Others cases seem to imply that rules that categor-
ically exclude liability of the police or the social services would not raise an issue
under article 6.1. This interpretation would overrule the cautionary approach
advanced by the Commission in Dyer. It is argued here that the Court has at least
indicated in the Fayed case that Dyer must be seen to complement the inquiry
at issue in Osman and Z. In these latter two cases a substantive right of action
could be seen to exist without having recourse to the technique developed in the
Dyer case. Had this first inquiry left the applicants without a substantive right of
action they could have argued that this right was withheld from them on arbi-
trary grounds. The applicability of article 6.1 should be determined by piercing
the veil of form through an objective examination into the nature of the limita-
tion allegedly in violation of article 6.1.
Under influence of this case law the Commission silently retreated from the
position defended in Agee v United Kingdom.³⁰³ In its reports in the cases of
Waite and Kennedy v Germany and Beer and Regan v Germany it argued that ‘the
immunity from jurisdiction, accorded to members of diplomatic or consular mis-
sions of foreign States in the exercise of public functions or international organ-
isations . . . does not exclude the existence of substantive rights under domestic
law and cannot be regarded as delimiting the very substance of any such rights’.
Rather, the Commission argued, ‘the rules on immunity from jurisdiction of,
inter alia, international organisations prevent claims concerning substantive
rights, which exist as such under German law, from being raised and enforced
against the privileged persons in German court proceedings, unless they waive
their immunity. In these circumstances, it is merely a procedural bar preventing
the possibilities of bringing potential claims to court.’³⁰⁴
³⁰⁰ Z and Others v United Kingdom (ECHR, 2001).

³⁰¹ X and Others v Bedfordshire County Council [1995] 3 All ER 353 (UK, HL, 1995).
³⁰² Z and Others v United Kingdom (ECHR, 2001) 135, § 89.
³⁰³ Cf n 287 above.
³⁰⁴ Waite and Kennedy v Germany Report (EComHR, 1997) § 53 and 55; Beer and Regan v
Germany Report (EComHR, 1997) § 39 and § 41, available at <http://www.echr.coe.int/echr>. The
issue of applicability of art 6.1 was not discussed by the Court (Waite and Kennedy v Germany 30
EHRR 261 (ECHR, 1999) § 49 and Beer and Regan v Germany 33 EHRR 54 (ECHR, 1999) §39).
It may hence be concluded that when the McElhinney, Al-Adsani, and Fogarty
cases came before the Court article 6.1 was generally agreed to be applicable to
immunity rules that limited the exercise of otherwise available jurisdiction over
otherwise available civil rights and obligations.
Strasbourg jurisprudence features a second argument against the applicabil-
ity of article 6.1 to certain immunity rules. It has been argued that international
immunity rules limit the jurisdiction of the national court and are hence not
covered by the Convention. In its 1984 decision in Spaans v The Netherlands the
Commission argued that the immunity of international organizations did not
give rise to an issue under the Convention since that rule meant that the dis-
puted acts did not occur within the jurisdiction of the respondent state.³⁰⁵ The
Commission had been asked to find that the immunity of the Iran-US Claims
Tribunal from jurisdiction of the Dutch courts in proceedings instigated by an
employee of the Tribunal to challenge his dismissal violated the right of access to
the courts under article 6.1. The Commission held that it must
first decide whether the Netherlands can be held responsible for the alleged violations
of the Convention in the present case. Under Article 1 of the Convention the High
Contracting Parties to the Convention undertake to secure the rights and freedoms
defined in Section I of the Convention to everyone within their jurisdiction. The ques-
tion is, therefore, whether the applicant, being an employee of the Iran-United States
Claims Tribunal, was within the jurisdiction of the Netherlands.
It continued:
Because of the immunity enjoyed by the Tribunal, the administrative acts are not acts
which occur within the jurisdiction of the Netherlands within the meaning of Article 1
of the Convention and thus do not engage the responsibility of the Netherlands under
the Convention.
The Commission notes that it is in accordance with international law that States
confer immunities and privileges to international bodies like the Iran-United States
Claims Tribunal which are situated in their territory. The Commission does not
In a decision taken after the three judgments under consideration in this section the Court has indi-
cated that the Agee case is no longer good law. In the case of A v United Kingdom (ECHR, 2002),
the Court was asked to find the rule of parliamentary immunity to be in violation of the right of
access to court under art 6.1. In respect of the question of the applicability of art 6.1 the Court
pointed out that subsequent to the decision in Agee it has been established that ‘whether a person
has an actionable domestic claim so as to engage Article 6 § 1 may depend not only on the sub-
stantive content of the relevant civil right, as defined under national law, but also on the existence
of procedural bars preventing or limiting the possibilities of bringing potential claims to court.’
(933, § 62 and 63) It considered that the rule of parliamentary immunity ‘is framed not in terms of
a substantive defence to civil claims, but rather in terms of a procedural bar to the determination
by a court of any claim which derives from words spoken in Parliament’ (933, § 64). Although the
Court considered it unnecessary to settle the issue (933–4, § 65), this statement makes clear that
the Court sympathizes with the argument of applicants that the parliamentary immunity in libel
actions was a procedural rather than a substantive limit.
³⁰⁵ Spaans v The Netherlands DR 58, 119 (EComHR, 1988) 122.
consider that such a restriction of national sovereignty in order to facilitate the working
of an international body gives rise to an issue under the Convention.
Consequently, the application was rejected as incompatible ratione personae with
the provisions of the Convention within the meaning of article 27.2 ECHR.³⁰⁶
The Commission did however qualify this argument at the next occasion it
had to rule on the applicability of article 6.1 to the immunity of an international
organization. Van der Peet, an employee of the European Patent Office (EPO)
in Munich, complained that the grant of immunity from jurisdiction to the
EPO in proceedings instigated by him before the German courts to challenge
a series of administrative decisions of the EPO dismissing his repeated requests
for leave of absence, violated his right of access to court under article 6.1 of the
Convention.³⁰⁷ The Commission observed that
it is in accordance with international law that States confer immunities and privileges to
international bodies which are situated in their territory, and that such a restriction of
national sovereignty in order to facilitate the working of an international body does not,
in principle, give rise to an issue under the Convention.
These two words change the entire outlook of the Commission’s approach. They
imply that under certain circumstances, however hypothetical, an issue may
arise. The Commission explains that
the transfer of powers to an international organisation is not incompatible with the
Convention provided that within that organisation fundamental rights will receive an
equivalent protection.³⁰⁸
It then noted that disputes about administrative acts affecting employees of the
EPO are referred to the Administrative Tribunal of the International Labour
Organisation. In addition, the application was held incompatible ratione materiae
with the provisions of the Convention since disputes relating to the recruitment,
employment and retirement of civil servants—permanent staff of international
organizations included—are as a general rule outside the scope of article 6.1.
The reasoning of the Commission is obscure—to say the least. It seems
the Commission thought to avoid a possibly intrusive inquiry into the nature
of the protection offered within the international organization by foreclos-
ing a violation of article 6.1 through a relatively uncontroversial finding of
³⁰⁶ ibid. Art 27.2 ECHR provided at the time as follows: ‘The Commission shall consider inad-
missible any petition submitted under Article 25 which it considers incompatible with the provi-
sions of the present Conventions, manifestly ill-founded, or an abuse of the right of petition.’
³⁰⁷ Van der Peet v Germany appl no 26991/95 (EComHR, 1996).
³⁰⁸ Referring to M and Co v FRG DR 64, 138 (EComHR, 1990) 145 and Heinz v Contracting
States Also Parties to the European Patent Convention DR. 76A 125 (EComHR, 1994) 127–8.
In these cases the Commission decided that ‘a transfer of powers does not necessarily exclude a
State’s responsibility under the Convention with regard to the exercise of the transferred powers.
Otherwise the guarantees of the Convention could wantonly be limited or excluded and thus be
deprived of their peremptory character.’
incompatibility ratione materiae. It could do this, however, but after explain-
ing how the Convention could play a role in the first place since it had so avidly
argued the opposite in Spaans. The application of the ‘transfer of powers’ doctrine
to the immunity of international organizations makes Van der Peet recall the
reasoning developed in Dyer v UK.³⁰⁹ While article 6.1 is in principle not applic-
able to the immunity of international organizations the article can be violated
nevertheless. Not because the state has not granted access to its courts—the acts
of the international organization are still considered outside the jurisdiction of
the state—but because it has transferred powers to an international organiza-
tion within which the right of access to court does not receive equivalent pro-
tection.³¹⁰ The cases the Commission relied on—M and Co v FRG and Heinz v
Contracting States Also Parties to the European Patent Convention—make clear
that a violation of the Convention arises when an international organization vio-
lates a Convention right and that right can in addition not be said to receive an
equivalent protection within the international organization in general.
In its reports in the cases of Waite and Kennedy v Germany and Beer and
Regan v Germany the Commission went out of its way to distinguish the facts of
these cases from Spaans.³¹¹ It argued that under the exceptional circumstances at
hand the immunity of the international organization did raise an issue under art-
icle 6.1. The applicability of article 6.1 was decided under the classic consideration
that the immunity of the international organization did not limit the substance
of the right of the applicant. The Commission hence made sure not to abandon
the position it took in Spaans even though its reasoning on this point was not
particularly convincing.³¹² Since the applicability of article 6.1 was not contested
before the Court the argument against the applicability of article 6 developed in
Spaans and qualified in Van der Peet had not yet been clearly overturned when
McElhinney, Al-Adsani, and Fogarty filed their complaint in Strasbourg.
3.2.2.3 Compliance
In an obiter dictum in the Golder case the Commission stated without much
ado that parliamentary and diplomatic immunity were justifiable restrictions of
³⁰⁹ See p 372 above.

³¹⁰ It has been argued that the ‘transfer of powers’ doctrine is ill-suited to describe the effect of
the immunity of international organizations since it considers a limitation of powers rather than a
transfer and that moreover the argument was completely obiter since the Commission could have
settled the issue with conclusion of incompatibility ratione materiae, cf RA Lawson, Het EVRM en
de Europese Gemeenschappen, Bouwstenen voor een aansprakelijkheidsregime voor het optreden van
internationale organisaties (1999) 443–4. However, the host state can in fact be seen to transfer its
powers to adjudicate a certain category of disputes that would normally arise within its essential
competence to the international organization. Moreover, as said before, the compatibility ratione
materiae could only be examined because the Commission had explained how an issue under art 6.1
could arise in the first place.
³¹¹ Waite and Kennedy v Germany Report (EComHR, 1997) § 51–2; Beer and Regan v Germany
Report (EComHR, 1997) § 37–8.
³¹² Cf RA Lawson (1999) 445.
the right of access to court.³¹³ This must have inspired the respondent state in the
Waite and Kennedy and Beer and Regan cases to argue before the Commission
that ‘the right of access to court is subject to inherent limitations which include
the traditional and generally recognized principle of parliamentary and diplo-
matic immunity and also the immunity of international organisations’.³¹⁴
The notion of inherent limitations to article 6.1 however does not agree with the
adamant insistence of the Strasbourg institutions in its post-Golder jurisprudence
that limitations on the right of access must always comply with certain criteria in
order to be compatible with article 6.1. In the Ashingdane case the Court ruled
that limitations must not restrict the access in such a way that the very essence of
the right is impaired, that they must always pursue a legitimate aim, and that the
means used must be proportional to that aim.³¹⁵ The Commission was indeed
quick to correct the respondent state by pointing out that for limitations to the
right of access to be permissible under article 6.1 they must comply with the
standard requirements formulated in Ashingdane. It considered that the aim of
the immunity of international organizations was to contribute to their proper
functioning and accepted this as a legitimate aim.³¹⁶ In respect of the propor-
tionality requirement it used the same reasoning it had used in their applicability
argument in Van der Peet. The Commission considered the grant of immunity to
international organizations to be proportional only when ‘within that organisa-
tion fundamental rights will receive an equivalent protection’.³¹⁷
In the proceedings before the Court the respondent state did not repeat
the arguments it had relied on before the Commission but conformed to the
Ashingdane structure of a compliance argument under article 6.1.³¹⁸ The Court
agreed with the respondent state and found the immunity from jurisdiction
granted to the international organization to have a legitimate objective. It noted
that
the attribution of privileges and immunities to international organisations is an essen-
tial means of ensuring the proper functioning of such organisations free from unilateral
interference by individual governments.
³¹³ Golder v UK (EComHR, 1973). See also the separate opinion of Judge Fitzmaurice in
Golder v UK (ECHR, 1975). In fn 17 the judge stated that ‘a right of access cannot make that the
courts must have unlimited jurisdiction (eg the case of diplomatic and parliamentary immunity)’.
It is noted that in N, C, F and AG v Italy DR 84-A, 84 (EComHR, 1995) 88, the Commission still
relied on its decision in Golder in support of the conclusion that diplomatic immunity was a justi-
fied limitation to the right of access.
³¹⁴ Waite and Kennedy v Germany Decision (EComHR, 1997) and Beer and Regan v Germany
Decision (EComHR, 1997) both available at <http://www.echr.coe.int/echr>.
³¹⁵ Ashingdane v United Kingdom (ECHR, 1985) 546–7, § 57.
³¹⁶ Waite and Kennedy v Germany Report (EComHR, 1997) § 70–1; Beer and Regan v Germany
Report (EComHR, 1997) § 56–7 available at <http://www.echr.coe.int/echr>.
³¹⁷ ibid § 73–4; § 59–60.
³¹⁸ Waite and Kennedy v Germany (ECHR, 1999) § 50ff ; Beer and Regan v Germany (ECHR,
1999) § 40ff. Cf also Lenzing v United Kingdom DR 94A, 136 (EComHR, 1998).
The immunity from jurisdiction commonly accorded by States to international organ-
isations under the organisations’ constituent instruments or supplementary agreements
is a long-standing practice established in the interest of the good working of these organ-
isations. The importance of this practice is enhanced by a trend towards extending and
strengthening international cooperation in all domains of society.³¹⁹
However, the Court formulated the obligations of a host state under article 6.1
in essentially different terms than the Commission had. The Court first stated
the competing interests that must be weighed in order to come to a proportional
solution:
[W]here States establish international organisations in order to pursue or strengthen their
cooperation in certain fields of activities, and where they attribute to these organisations
certain competences and accord them immunities, there may be implications as to the
protection of fundamental rights. It would be incompatible with the purpose and object
of the Convention, however, if the Contracting States were thereby absolved from their
responsibility under the Convention in relation to the field of activity covered by such
attribution. It should be recalled that the Convention is intended to guarantee not theor-
etical or illusory rights, but rights that are practical and effective. This is particularly true
for the right of access to the courts in view of the prominent place held in a democratic
society by the right to a fair trial.³²⁰
The ‘material factor’ in determining the proportionality of giving precedence
to the interest of the international organization over that of individuals—or to
the obligations under the one rule over that under the other—is ‘whether the
applicants had available to them reasonable alternative means to protect effect-
ively their rights under the Convention’.³²¹ Since the international organization
in casu did provide for various—not apparently ineffective—modes of dispute
settlement, their immunity from German jurisdiction did not impair the essence
of applicants’ right of access and was not disproportionate. The fact that appli-
cants’ original claim could only succeed under German law and not under the
substantive provisions of the regulations applied in the alternative dispute settle-
ment procedures does not affect this conclusion since the principle of propor-
tionality cannot compel access of applicants to the substantive guarantees under
national legislation.³²²
It is important to point out that the Court did not repeat the condemnation of
‘blanket immunity rules’ it had advanced only four months earlier in the Osman
case.³²³ In that case the Court considered the rule that excluded actions against
the police in negligence in the investigation and suppression of crime to be in vio-
lation of article 6.1. It did not accept the argument of the respondent state that
³¹⁹ ibid § 63; § 53.

³²⁰ ibid § 67; § 57.
³²¹ ibid § 68; § 58.
³²² ibid § 69–73; § 59–63.
³²³ Osman v United Kingdom (ECHR, 1998). The facts of that case were set out on p 373 above.
the exclusionary rule of liability is not of an absolute nature since its application
may yield to other public policy considerations. It considered that the national
court had interpreted the rule as a watertight defence for the police.³²⁴ It con-
cluded that applicants had suffered a disproportionate restriction on their right
of access to court because ‘the application of the rule in this manner without fur-
ther enquiry into the existence of competing public interest considerations only
serves to confer a blanket immunity on the police for their acts and omissions
during the investigation and suppression of crime and amounts to an unjustifi-
able restriction on an applicant’s right to have a determination on the merits of
his or her claim against the police in deserving cases’.³²⁵ The decision in Osman
implied that for an immunity rule to be proportional for the purposes of article
6.1 ‘it must be open to a domestic court to have regard to the presence of other
public interest considerations which pull in the opposite direction to the applica-
tion of the rule’.³²⁶
Clearly, most immunity rules are blanket immunity rules. The immunity rule
at issue in Waite and Kennedy and Beer and Regan is no exception. The position
that such rules are by definition in violation of article 6.1 is, to put it mildly,
unorthodox. It is argued here that as long as a proper balance of competing public
policy interests underlies a blanket immunity rule, the rule is proportionate to its
aim and article 6.1 not violated. In other words, it is not relevant whether courts
are allowed to balance the interests involved in their determination of the scope
of the rule; it is the scope of the rule that must reflect a proper balance for it to be
in accordance with article 6.1.
It seems that the Court has realized the consequences of its bold statement
in Osman in the short period between its decision in that case and its decisions
in Waite and Beer. The blanket immunity of the international organizations
was weighed against the interests of the applicants to have access to the courts.
³²⁴ ibid 316, § 150. This finding is somewhat puzzling in light of the Court’s considerations on
the issue of applicability of art 6.1. Cf n 299 above.
³²⁵ ibid 316, § 151 (emphasis added). It is noted that in Z v United Kingdom (ECHR, 2001)
(facts discussed at p 374 above) the Court withdrew from its qualification of the exclusion of liabil-
ity under the English law of negligence in the Osman case. It stated explicitly that the ‘reasoning in
the Osman judgment was based on an understanding of the law of negligence . . . which has to be
reviewed in the light of the clarifications subsequently made by the domestic courts and notably
the House of Lords’. It pronounced itself ‘satisfied that the law of negligence as developed in the
domestic courts . . . includes the fair, just and reasonable criterion as an intrinsic element of the duty
of care and that the ruling of law concerning that element in this case does not disclose the oper-
ation of an immunity . . . the inability of the applicants to sue the local authority flowed not from an
immunity but from the applicable principles governing the substantive right of action in domestic
law’. In such case, the Court explained, there is no issue under art 6.1 because there is no restriction
on access to court (138, § 100). It concluded that ‘[t]he applicants may not therefore claim that they
were deprived of any right to a determination on the merits of their negligence claims. Their claims
were properly and fairly examined in light of the applicable domestic legal principles concerning
the tort of negligence.’ (138, § 101). It may however be clear from the quotations mentioned in the
previous footnote that the Court did very well realize that the rule was not absolute. It explicitly
considered that it was the way in which the UK courts applied the rule that violated art 6.1.
³²⁶ Osman v United Kingdom (ECHR, 1998) 316, § 151.
Since alternative means to protect the rights under the Convention effectively
were available to applicants, their interests were outweighed by those of the inter-
national organization and the international community at large. Although the
Court did not say it with so many words, Waite and Kennedy and Beer and Regan
arguably overturn Osman on this point.
In sum, even though the Court settled for the less demanding ‘reasonable alter-
native means to protect’ rather than ‘equivalent protection’³²⁷ and even though
it engaged in a very marginal review of the alternative means for redress provided
for within the international organization,³²⁸ it has confirmed that limitations
on the right of access by immunity rules must not impair the very essence of the
right, must have a legitimate aim, and must be proportional to that aim.
3.2.3 McElhinney v Ireland, Al-Adsani v United Kingdom,

and Fogarty v United Kingdom
In 2001 the European Court of Human Rights passed judgment in three applica-
tions challenging the rule of state immunity under article 6.1 of the Convention.
While the domestic proceedings in which a foreign state defendant had been
granted state immunity were distinct on the facts, the arguments relied on by
applicants and respondent states and the Court’s analysis thereof followed a
largely identical pattern.
The case of McElhinney v Ireland was brought in response to the decision of the
Irish courts to grant immunity to the United Kingdom in proceedings pending
before it.³²⁹ The facts underlying the proceedings were the following. When the
applicant—an Irish national—had accidentally driven his car into a checkpoint
barrier between Northern Ireland and Ireland, one of the British soldiers man-
ning the checkpoint was hit and fired at the car in response. The applicant alleged
that he did not realize he hit the soldier and did not stop because he feared the
shots fired at him formed a terrorist attack. He continued to drive for two miles
into Irish territory. When he pulled over, the soldier that had followed him from
the checkpoint was in a state of ‘blind panic’ and allegedly aimed his gun at him
and pulled the trigger twice, although the shots did not fire because the gun
jammed. McElhinney lodged an action in the Irish courts against the individual
soldier and the British Secretary of State for Northern Ireland for damages in
respect of his allegation that the soldier had wrongfully assaulted him. Because
³²⁷ Th is difference seems to at times escape the attention of commentators on the cases, cf eg
P Pustorino, ‘Immunità giurisdizionale delle organizzazioni internazionali e tutela dei diritti
fondamentali: le sentenze della Corte Europea nei casi Waite et Kennedy e Beer et Regan’ (2000) 83
RDI 132; A Reinisch, ‘Case Note Waite and Kennedy and Beer and Regan’ (1999) 93 AJIL 933.
³²⁸ Cf for criticism on this point a.o. P Pustorino, ibid 147–50; A Reinisch, ibid 937; J-F Flauss
(2000) 322; H Tigroudja, ‘L’immunité de juridiction des organisations internationales et le droit
d’accès à un tribunal’ (2000) 11 Revue Trimestrielle des Droits de l’Homme 83, 87.
³²⁹ McElhinney v Ireland (ECHR, 2001).
of the rule of state immunity, however, he was held not to be entitled to bring
an action in the Irish courts. In the proceedings before the European Court of
Human Rights the applicant claimed that the refusal to entertain his claim for
damages for personal injury following the allegedly tortious behaviour of a UK
soldier on Irish territory violated his right of access to court under article 6.1
ECHR.
The facts of the UK case of Al-Adsani v Kuwait were set out earlier in this
chapter.³³⁰ When Al-Adsani failed to get a decision on his claim for damages for
torture from the UK courts because of the grant of state immunity to Kuwait, he
filed a complaint in Strasbourg arguing that the United Kingdom had violated
his right of access to court.
In Fogarty v UK the applicant also argued that her right of access to court had
been violated by the grant of state immunity in respect of a claim filed by her
in the UK courts, this time to the United States.³³¹ Ms Fogarty had brought a
claim against the US on the allegation that she had been discriminated against
in the selection procedures for two secretarial positions at the US Embassy in
London. Fogarty had previously worked for the Embassy and contended that the
refusal to re-employ her was a consequence of the sex discrimination claim she
had successfully brought with regard to facts relating to that previous position.
All three applicants argued that the grant of immunity to the foreign state con-
stituted a disproportionate restriction of their right of access to court under article
6.1. The arguments of both applicants and respondent states were structured to fit
the two queries of applicability of, and compliance with, article 6.
The controversy on the applicability of article 6.1 was framed in similar terms in
all three cases, albeit with a slightly different focus in each of them. In McElhinney
the government argued that article 6.1 did not apply because the rule of state
immunity in respect of fundamental acts jure imperii ‘affected the substantive
content of the right claimed and was not merely a procedural bar’, whereas the
applicant argued that the rule did operate as a procedural bar to the exercise of his
rights.³³² In Al-Adsani the government claimed that article 6 ‘could not extend to
matters outside the State’s jurisdiction, and that as international law required an
immunity in the present case, the facts fell outside the jurisdiction of the national
courts and, consequently, Article 6’. The applicant rebutted. He observed that
torture is a civil wrong in English law and that the UK does assert jurisdiction
over civil wrongs committed abroad in certain circumstances. Since the courts
did accept jurisdiction over his claims against the individual defendants it was
clear that his claim against Kuwait was rejected not because of the nature of the
³³⁰ Al-Adsani. Cf p 309 above.

³³¹ Fogarty v United Kingdom (ECHR, 2001).
³³² McElhinney, 329–30, § 21–2.
claim but because of the identity of the defendant and that article 6.1 was there-
fore applicable.³³³ In Fogarty the government contended that article 6.1 did not
apply because the applicant had ‘no actionable domestic claim’. The rule of state
immunity, it argued, ‘removed the dispute from the competence of the national
courts, which could not assert jurisdiction over the internal affairs of foreign dip-
lomatic missions’. The applicant, on the other hand, argued that the right she had
under domestic law to be free from sex discrimination was not extinguished by
the rule of state immunity; the rule simply prevented the courts from examining
the dispute.³³⁴
The Court dealt with these arguments in three identical considerations. It first
recalled that
Article 6 § 1 does not itself guarantee any particular content for ‘civil rights and obliga-
tions’ in the substantive law of the Contracting States. It extends only to contestations (dis-
putes) over ‘civil rights and obligations’ which can be said, at least on arguable grounds,
to be recognised under domestic law.
Whether a person has an actionable domestic claim may depend not only on the sub-
stantive content, properly speaking, of the relevant civil right as defined under national
law but also on the existence of procedural bars preventing or limiting the possibilities
of bringing potential claims to court. In the latter kind of case Article 6 § 1 may be
applicable. Certainly the Convention enforcement bodies may not create by way of inter-
pretation of Article 6 § 1 a substantive civil right which has no legal basis in the State
concerned. However, it would not be consistent with the rule of law in a democratic soci-
ety or with the basic principle underlying Article 6 § 1—namely that civil claims must
be capable of being submitted to a judge for adjudication—if, for example, a State could,
without restraint or control by the Convention enforcement bodies, remove from the
jurisdiction of the courts a whole range of civil claims or confer immunities from civil
liability on large groups or categories of persons.³³⁵
The Court then proceeded to qualify the respective immunity rules applied in
the three cases as a procedural rather than a substantive bar. In McElhinney the
Court reasoned as follows:
The proceedings which the applicant intended to pursue were for damages for assault,
trespass to the person, negligence and breach of duty. Such an action is well known to
Irish law. The Court does not accept the Government’s plea that because of the operation
of State immunity the applicant did not have a substantive right under domestic law. It
notes that an action against a State is not barred in limine: if the defendant State chooses
to waive immunity, the action will proceed to a hearing and judgment. The grant of
³³³ Al-Adsani, 286–7, § 44–5.

³³⁴ Fogarty, 309–10, § 22–3.
³³⁵ McElhinney, 330, § 23 (referring to Z and Others v the United Kingdom (ECHR, 2001)
134–5, § 87) and § 24 (referring to Fayed v United Kingdom Series (ECHR, 1994) 429–30, § 65);
Al-Adsani, 287, § 46–7; Fogarty, 310, § 24–5.
immunity is to be seen not as qualifying a substantive right but as a procedural bar on the
national courts’ power to determine the right.³³⁶
In a similar vein it considered that the actions relied on by Al-Adsani and Fogarty
are well known to UK law, that the action against Kuwait and the United States
are not barred in limine, and that the grant of immunity was therefore to be seen
as a procedural bar on the national courts’ power to determine the right rather
than as qualifying a substantive right.³³⁷ Consequently, the Court was satisfied
that there existed a serious and genuine dispute over civil rights and that article
6.1 was applicable to all three proceedings.³³⁸
3.2.3.3 Compliance
In all three cases the respondent state asserted to have acted in accordance with
generally recognized principles of public international law and that hence—if
article 6.1 was found to apply to the facts of the case—the limitations on the right
of access to court were proportionate restrictions pursuing a legitimate aim.³³⁹ In
McElhinney the respondent state argued moreover that the applicant had an alter-
native means of recourse since he could have instituted proceedings in Northern
Ireland. Also in Al-Adsani the respondent state submitted that traditional means
of redress for this kind of wrong were available to the applicant—namely diplo-
matic representations or an inter-State claim.
The applicants in McElhinney and Al-Adsani submitted that the limitation
imposed did not serve a legitimate aim and was disproportionate. McElhinney
argued that the immunity granted to the UK no longer existed in international
law. He especially emphasized that the UK itself did not consider it necessary
to grant immunity to foreign governments in similar situations. As regards the
alternative remedy, he pointed out that his claim was for damages sustained
in an incident on Irish territory and that Ireland as locus delicti was hence the
appropriate forum for his action. Al-Adsani argued that state immunity was
no longer a valid defence against torture allegations. In particular, he asserted
that the conclusions of the Pinochet case equally applied in civil proceedings. He
moreover underlined that the UK had refused to assist him in the pursuit of his
claim through diplomatic channels. The applicant in Fogarty did concede that
the limitation concerned a legitimate aim but argued that it was disproportionate
because, inter alia, the immunity applied was not required under international
law and no alternative means of redress was available to her since the United
States was not prepared to exercise jurisdiction.
³³⁶ McElhinney, 330, § 25.

³³⁷ Al-Adsani, 287, § 48; Fogarty, 310–11, § 26.
³³⁸ McElhinney, 330–1, § 26; Al-Adsani, 287, § 49; Fogarty, 311, § 27.
³³⁹ Cf for the arguments of the parties McElhinney, 331ff, §27ff ; Al-Adsani, 287ff, § 50ff ;
Fogarty, 311ff, §29ff.
Applying the Ashingdane criteria to the facts of the cases before it the Court
developed a novel line of reasoning that entails an unqualified deference to public
international law requirements. The Court did not dwell on the legitimate aim of
the limitations at hand. In all three cases we find the following consideration:
[S]overeign immunity is a concept of international law, developed out of the principle
par in parem non habet imperium, by virtue of which one State shall not be subject to the
jurisdiction of another State. The Court considers that the grant of sovereign immunity
to a State in civil proceedings pursues the legitimate aim of complying with international
law to promote comity and good relations between States through the respect of another
State’s sovereignty.³⁴⁰
International law was then again relied on to find compliance with the require-
ments of the principle of proportionality. Under reference to article 31.3 (c) of
the Vienna Convention on the Law of Treaties, the Court considered that in the
interpretation of the Convention account is to be taken of ‘any relevant rules of
international law applicable in the relations between the parties’. It continued:
The Convention, including Article 6, cannot be interpreted in a vacuum. The Court must
be mindful of the Convention’s special character as a human rights treaty, and it must
also take the relevant rules of international law into account . . . The Convention should so
far as possible be interpreted in harmony with other rules of international law of which it
forms part, including those relating to the grant of State immunity.
It follows that measures taken by a High Contracting Party which reflect generally
recognised rules of public international law on State immunity cannot in principle be
regarded as imposing a disproportionate restriction on the right of access to court as
embodied in Article 6 § 1. Just as the right of access to court is an inherent part of the fair
trial guarantee in that Article, so some restrictions on access must likewise be regarded
as inherent, an example being those limitations generally accepted by the community of
nations as part of the doctrine of State immunity.³⁴¹
Hence, the Court limited its review of the proportionality of the limitations to
the question whether the rules applied in the national court proceedings reflected
generally recognized rules of public international law.
Only one Judge explicitly dissented from the approach outlined by the Court.
In all three cases Judge Loucaides relied on the Osman case when he argued that
a blanket immunity which is applied by a court in order to block completely the judi-
cial determination of a civil right without balancing the competing interests, namely
those connected with the particular immunity and those relating to the nature of the spe-
cific claim which is the subject matter of the proceedings, amounts to a disproportionate
restriction on the right of access to court.
³⁴⁰ McElhinney, 333, § 35; Al-Adsani, 289, § 54; Fogarty, 313, § 34.
³⁴¹ McElhinney, 333, § 36 (referring to Loizidou v Turkey 23 EHRR 513 (ECHR, 1996) 526,
§ 43) and 333–4, § 37; Al-Adsani, 289, § 55–6; Fogarty, 313–4, § 35–6.
He elaborated the underpinnings of his argument holding that:

In present democratic society an absolute immunity from judicial proceedings appears
to be an anachronistic doctrine incompatible with the demands of justice and the rule
of law.
The international law immunities originated at a time when individual rights were
practically non-existent and when States needed greater protection from possible har-
assment through abusive judicial proceedings. The doctrine of State immunity has in
modern times been subjected to an increasing number of restrictions, the trend being
to reduce its application in view of developments in the field of human rights which
strengthen the position of the individual . . .
It is correct that Article 6 may be subject to inherent limitations, but these limitations
should not affect the core of the right. Procedural conditions such as time-limits, the
need for leave to appeal etc. do not affect the substance of the right. But completely pre-
venting somebody from having his case determined by a court, without any fault on his
part and regardless of the nature of the case, contravenes, in my opinion, Article 6 § 1 of
the Convention.³⁴²
The approach set out in the majority opinion required the Court to examine
whether the three disputed applications of the rule of state immunity reflected
international law requirements. Since the applicants all relied on a different
exception to the rule, the reasoning of the Court diverges on this point.
In McElhinney v Ireland the Court considered that although
there appears to be a trend in international and comparative law towards limiting State
immunity in respect of personal injury caused by an act or omission within the forum
State . . . this practice is by no means universal.
In addition it pointed out that
the trend may primarily refer to ‘insurable’ personal injury, that is incidents arising out
of ordinary road traffic accidents, rather than matters relating to the core area of State
sovereignty such as the acts of a soldier on foreign territory which, of their very nature,
may involve sensitive issues affecting diplomatic relations between States and national
security.
The Court concluded that it could not be said
that Ireland is alone in holding that immunity attaches to suits in respect of such torts
committed by acta jure imperii or that, in affording this immunity, Ireland falls out-
side any currently accepted international standards . . . it is not possible, given the present
state of the development of international law, to conclude that Irish law conflicts with its
general principles.³⁴³
In conclusion the Court noted moreover that the applicant could have brought
an action in Northern Ireland against the United Kingdom Secretary of State for
³⁴² McElhinney, Dissenting Opinion of Judge Loucaides, 340, 340–1. Cf also Al-Adsani, 301,
301; Fogarty, 317, 319.
³⁴³ McElhinney, 334, § 38.
Defence as already pointed out by UK government lawyers in the proceedings
before the Irish courts.³⁴⁴
Four judges dissented—five if we include the dissent of principle of Judge
Loucaides. Judges Caflisch, Cabral Barreto, and Vajic concluded in their dis-
senting opinion that the exception to state immunity for territorial torts caus-
ing personal injury as laid down in article 12 of the ILC Draft on Jurisdictional
Immunities of States and their Property reflects the law as it is at present.³⁴⁵ They
added that
even if one were not prepared to admit as much, that Article is, at the very least, the
expression of a remarkable convergence of tendencies in contemporary international law.
This convergence is sufficiently powerful to suggest, at any rate, that at present there is no
international duty, on the part of States, to grant immunity to other States in matters of
torts caused by the latter’s agents.
The restriction of the right of access to court hence could not be justified by refer-
ence to the international law of state immunity. The limitation hence constituted
a disproportionate restriction of the right of access to court.³⁴⁶
Judge Rozakis formulated his opinion in a separate dissent. He considered that
at the time that McElhinney’s case was before the Irish courts
international law . . . allowed a State to invoke sovereign immunity in order to bar access
to a court without flagrantly violating general international law. Yet, the fact that the
law on sovereign immunity was—and still is—at a stage of transition, and that the clear
preference of the international community was—and is—to limit it in specific States’
actions, has a weighty impact on the proportionality test under the Convention.
This fact was seen to make the invocation of the interests of the state ‘rather
weak’. On the other side of the scale, three distinct factors added to the weight of
the interests of McElhinney. In the first place, the judge emphasized that nation-
ality ‘usually creates a jurisdictional bond between a person and his State and, in
international law, a prima facie obligation on the State to protect him’. Secondly,
he pointed out that ‘the assault against the applicant occurred within Irish terri-
tory, a matter which further reinforces the jurisdictional bond’. And finally the
judge considered the practical difficulties of bringing proceedings in the United
Kingdom not to be ‘altogether irrelevant or negligible’. Judge Rozakis argued that
these factors ‘seriously weaken the Court’s argument that the applicant had rea-
sonable alternative means to protect effectively his right under the Convention’.
He moreover pointed out that the situation of McElhinney differed fundamen-
tally from that of the individual in the Waite and Kennedy case. Whereas the
³⁴⁴ McElhinney, 334, § 39.

³⁴⁵ McElhinney, Dissenting Opinion of Judges Caflisch, Cabral Barreto, and Vajic, 336,
336–40. Judge Loucaides subscribed to this conclusion but preferred to base his dissent on the
more fundamental issue set out above.
³⁴⁶ ibid 340. Oddly, the judges write that ‘the Court, in our view, should have held Article 6 § 1
to apply to the present case’.
latter case concerned a person working within an international organization and

a dispute for which internal proceedings existed of which the person was aware
when he signed his employment contract, McElhinney ‘did not have any link
with [UK] jurisdiction—other than the incidental link of the national origin of
the defendant—or any kind of allegiance and loyalty to that foreign jurisdiction’.
Weighing the interests of the state against the interests of the applicant in this
case he concluded that ‘the applicant was unduly deprived of his right of access
to a court and that the deprivation was disproportionate and impaired the very
essence of this right’. In sum, while the Judge did not dissent from the approach
of the Court he did argue that when as regards a particular application of the rule
of state immunity there is some doubt as to the requirements of international
law, the interests of the individual to have access to the court should be balanced
against the interests protected by the application of the rule.
Judge Loucaides even went one step further. In an obiter consideration he
argued that the availability of an alternative remedy in the courts of the foreign
state should not be taken into account at all when weighing the interest of the
individual to have access to court:
I believe that when a complaint is made for a breach of the Convention, the complaint
should be examined by the Court by reference only to the legal system of the respondent
State. Any defects or other problems relating to such a system cannot be remedied by ref-
erence to the legal system of any other High Contracting Party, whether neighbouring
to the respondent State or not. Therefore, the fact that the applicant in this case had the
possibility of a judicial remedy in the United Kingdom in respect of his grievance should
be irrelevant to the issue before the Court, which was solely and exclusively whether the
applicant had access to the courts in Ireland in respect of the same complaint. I think it is
unfair as well as odd to expect the applicant to have recourse to another State as a solution
to his problem of lack of access to a court in his own country, against which his complaint
was directed.
The reasoning of the Court in Al-Adsani v UK has been discussed in earlier parts
of this chapter. It is recalled that a narrow majority of nine to eight judges found
that in international law there was no exception to the rule of state immunity
when acts of torture are alleged.³⁴⁷ The Court hence concluded that the grant of
immunity to Kuwait had not been an unjustified restriction of the right of access
to court. The minority judges argued that the jus cogens nature of the prohibition
of torture meant that states could not invoke hierarchically lower rules, like the
rule of state immunity, to avoid the consequences of the violation of this prohib-
ition.³⁴⁸ They therefore concluded that the applicant’s right of access to court had
been violated.
³⁴⁷ Cf § 2.2 above.

³⁴⁸ Al-Adsani, Dissenting Opinion of Judges Rozakis and Caflisch Joined by Judges Wildhaber,
Costa, Cabral Barreto, and Vajic, 297. Judge Loucaides pointed out that although he did agree with
the dissenting opinion written by Judges Rozakis and Caflisch he preferred to adopt the same argu-
ment he used in his dissents in McElhinney and Fogarty (that any form of ‘blanket immunity’ is a
In Fogarty v UK the Court found that the relevant limitation of the right of
access to court did not exceed the margin of appreciation allowed to states and
that accordingly no violation of article 6.1 had taken place. It first considered that
there appears to be a trend in international and comparative law towards limiting State
immunity in respect of employment-related disputes. However, where the proceedings
relate to employment in a foreign mission or embassy, international practice is divided on
the question whether State immunity continues to apply and, if it does so apply, whether
it covers disputes relating to the contracts of all staff or only more senior members of
the mission. Certainly, it cannot be said that the United Kingdom is alone in holding
that immunity attaches to suits by employees at diplomatic missions or that, in affording
such immunity, the United Kingdom falls outside any currently accepted international
standards.³⁴⁹
Subsequently, it pointed out that the controversy anyhow did not extend to the
type of proceedings at issue since
the proceedings which the applicant wished to bring did not concern the contractual
rights of a current embassy employee, but instead related to alleged discrimination in
the recruitment process. Questions relating to the recruitment of staff to missions and
embassies may by their very nature involve sensitive and confidential issues, related, inter
alia, to the diplomatic and organisational policy of a foreign State. The Court is not aware
of any trend in international law towards a relaxation of the rule of State immunity as
regards issues of recruitment to foreign missions.³⁵⁰
Judge Loucaides wrote the only dissent.³⁵¹ It was explained earlier that the Judge
disagreed on the principle of the approach chosen by the Court. In what was tech-
nically an obiter consideration Judge Loucaides went on to argue that if the com-
peting interests are weighed the immunity granted to the United States does not
pass the Ashingdane criteria. He underlined that ‘it has not been established that
there is in actual fact a rule of customary international law in support of the State
immunity invoked by the respondent Government’. Since the rule involved is no
longer supported by a ‘widespread and consistent practice’—indeed the govern-
ment itself had conceded that it concerned a ‘highly controversial issue’—it could
not be said to reflect an obligation under international law. Considering that the
claim of the applicant was an allegation of a violation of a human right, and con-
sidering the fact that there was no alternative means of redress in respect of the
disproportionate limitation of art 6.1 ECHR) as the main reasoning for finding a violation of art
6.1, Dissenting Opinion Judge Loucaides, 301. See also the Dissenting Opinion of Judge Ferrari
Bravo, 300.
³⁴⁹ Fogarty, 314, § 37.
³⁵⁰ Fogarty, 314–15, § 38.
³⁵¹ Fogarty, Dissenting Opinion of Judge Loucaides, 317. The Judge’s dissent on this issue forced
him moreover to find that the applicant’s claim in England involved the determination of a civil
right for the purposes of art 6.1, a question left open by the majority who decided that, even if art 6
was assumed to apply, there had been no violation by the court.
applicant’s complaint, Judge Loucaides concluded that the balance weighing the
conflicting interests tips to the side of the applicant.
3.2.4 The Right of Access to Court and State Immunity and Personal
Immunity: A Critical Discussion of the McElhinney,
Al-Adsani and Fogarty Cases
The brief overview of the legal framework in which a complaint of violation of
the right of access to court inserts itself helps us put the arguments of the par-
ties, the Court and the dissenting judges in the cases of McElhinney v Ireland,
Al-Adsani v UK and Fogarty v UK in perspective. This section first examines
whether the decision on the applicability of article 6.1 on the basis of the stand-
ard distinction between substantive and procedural limits properly reflects the
nature of the rule of state immunity.³⁵² It will be argued that it does not. Three
situations should be distinguished when testing immunity rules under article 6.1
and the three cases can be seen to each represent a different situation. Second, it
will be examined whether the decision on the compliance with article 6.1 prop-
erly reflects the nature of the obligations put on states under the article. It will
be argued that the decisions of the Court also fall short on this point. The Court
does not consider how states may make the obligations states have under rules of
public international law compatible with its obligations under the Convention,
but rather approaches the former obligations as inherent limitations of the latter.
The arguments of the applicants in McElhinney, Al-Adsani, and Fogarty on the
applicability of article 6.1 and the decision of the Court on this point relied
on the distinction between procedural and substantive limitations. The Court
agreed with the applicants that article 6.1 was applicable because the rule of state
immunity does not limit the substantive rights of individuals but is a procedural
bar to the jurisdiction of the court. It argued that the substantive rights relied on
by the applicants in the national proceedings were not extinguished by the rule of
state immunity. Rather, this rule prevented the national courts from determining
those rights. This is, according to the Court, clear from the fact that the defend-
ant state may waive its immunity and that actions of the applicants were hence
not barred in limine.
Without much ado this conclusion shoved the somewhat unconventional
argument advanced by the respondent states in the Al-Adsani and Fogarty cases to
the side. In the Al-Adsani case the UK asserted that article 6 ‘could not extend to
³⁵² An argument that is not further discussed here but which is very convincing indeed is that
a complaint that the grant of state immunity violates art 6.1 fails to exhaust local remedies if the
applicant has not fi led a complaint for damages against the respondent state in the local courts first
(art 35.1 ECHR). Cf in this sense RA Lawson (1999) 441–2.
matters outside the State’s jurisdiction, and that as international law required an
immunity in the present case, the facts fell outside the jurisdiction of the national
courts and, consequently, Article 6’. In Fogarty the UK argued that there was no
actionable domestic claim when the rule of state immunity ‘remove[s] the dispute
from the competence of the national courts, which [can] not assert jurisdiction
over the internal affairs of foreign diplomatic missions’.
These arguments clearly recall the reasoning of the Commission in Spaans v
The Netherlands. In that case, the Commission had concluded that the immun-
ity of international organizations under international law meant that acts of the
international organization were ‘not acts which occur within the jurisdiction
of the Netherlands’. The immunity did therefore not raise an issue under the
Convention. As explained above, this argument has never really lost its preceden-
tial value, and the terse reasoning of the Court can hardly be considered a convin-
cing rebuttal.³⁵³
The argument was revived by Lord Millett in the 2000 decision of the House
of Lords in the case of Holland v Lampen-Wolfe.³⁵⁴ Lord Millett rejected the argu-
ment of Ms. Holland that the grant of state immunity to the defendant would
violate her right of access to court under article 6.1 ECHR, arguing that
[a]rticle 6 requires contracting States to maintain fair and public judicial processes and
forbids them to deny individuals access to those processes for the determination of their
civil rights. It presupposes that the contracting States have the power of adjudication
necessary to resolve the issues in dispute. But it does not confer on contracting States
adjudicative powers that they do not possess. State immunity, as I have explained, is
a creature of customary international law and derives from the equality of sovereign
States. It is not a self-imposed restriction on the jurisdiction of its courts that the United
Kingdom has chosen to adopt. It is a limitation imposed from without upon the sover-
eignty of the United Kingdom itself.³⁵⁵
In the 2003 decision in Matthews v Ministry of Defence he again emphasized that
article 6.1
presupposes that the contracting states have the powers of adjudication necessary to
determine the issues in dispute. But it does not confer on contracting states adjudicative
powers which they do not possess. State immunity is a creature of customary inter-
national law . . . It is not a self-imposed restriction on the jurisdiction of its courts which
³⁵³ Cf § 3.2.2.2 above.

³⁵⁴ Holland v Lampen-Wolfe (UK, 2000). Lords Cooke of Thorndon and Hobhouse of
Woodborough agreed with the arguments of Lord Millett. The reliance on art 6 ECHR
by applicants in UK proceedings can be explained by the strictures of the 1978 UK SIA. The
unambiguous terms of the domestic immunity legislation force applicants to revert to invent-
ive legal reasoning. Since the grant of state immunity in deviance of international law violates
art 6 ECHR, the argument commonly runs, judges should allow a human rights exception to state
immunity even though that is not explicitly provided for in the SIA. In order to prove that inter-
national law does not require the grant of immunity in respect of allegations of gross human rights
abuses, applicants rely on the arguments against state immunity discussed in § 2 of this chapter.
³⁵⁵ ibid 1588 (per Lord Millett).
the United Kingdom has chosen to adopt. It is a limitation imposed from without upon
the sovereignty of the United Kingdom itself. It derives from the equality of sovereign
states, and from the fact that the adjudication of disputes is an exercise of sovereign
power: par in parem non habet imperium.³⁵⁶
In the 2006 decision in Jones v Saudi Arabia the House of Lords expressed
support for this position.³⁵⁷ It has to be noted that while Lord Millett did in
both cases explicitly note that the substance of the prohibition derives from the
equality of sovereign states, he argued that the adjudicative powers of states are
inherently limited by all rules of international law that put limits on the exercise
of jurisdiction by national courts.³⁵⁸
This conclusive reliance on the international law character of the state immun-
ity rule is rejected in this study. The jurisdiction of a state is not as a general rule
limited by international law immunities. Voluntary immunity rules like diplo-
matic immunity do not limit the essential competence of states but operate as an
exception to the normal jurisdiction of the receiving or host state.
Lord Millett supported his argument with the consideration that ‘the United
Kingdom cannot, by its own act of acceding to the Convention and without the
consent of the United States, obtain a power of adjudication over the United
States which international law denies it’. He further explained that ‘[t]he court
cannot reach a particular conclusion because it prefers the right of access to just-
ice which the Convention affords to [the individual] to the immunity from suit
which international law affords to the United States. The United States has rights
too, and the court is bound to respect them. It claims immunity from the present
suit. In my opinion its claim is well founded. Where the immunity is available,
then for the reasons I have endeavoured to give it prevails over the Convention
rights contained in article 6.’³⁵⁹
It is respectfully submitted that this argumentation misconceives the char-
acter of the obligation under article 6.1. Lord Millett mistakes the state of the
law argument on the scope of article 6.1—and the policy argument against
immunity—for a state of the law argument on the scope of the rule of state
immunity.³⁶⁰ The immunity of the United States from UK jurisdiction is quite
obviously not curtailed by the obligations the UK has undertaken under the
Convention. When article 6.1 is violated this only affects the responsibility of
the UK towards the individual, not the immunity of the United States. The fact
that the UK is obliged to grant immunity to the US does not mean that it cannot
³⁵⁶ Matthews v Ministry of Defence (UK, 2003) § 104.

³⁵⁷ Jones v Saudi Arabia (UK, 2006) § 14 and § 64.
³⁵⁸ The distinction between internal and external limitations has found some support in doc-
trine, Cf E Voyakis, ‘Access to Court v. State Immunity’ (2003) 52 ICLQ 297, 307–10. Cf for early
support for this argument H Damian (1985) 17.
³⁵⁹ Holland v Lampen-Wolfe (UK, 2000).
³⁶⁰ The germ of this misconception lies in the claim of Ms Holland who had relied on art 6.1 as
an argument against the granting of immunity to the defendant. That argument could have been
rejected without deciding the scope of the obligations of states under art 6.1.
have, at the same time, obligations towards private individuals to mitigate the
consequences of this grant of immunity. It is in this respect important to realize
that article 6.1 is applicable and not yet violated when it is acknowledged that the
rule of immunity limits the right of access to court.
The idea of non-applicability of article 6.1 does however deserve serious con-
sideration as far as necessary immunity rules are concerned. Necessary immunity
rules do not prevent the court from exercising an otherwise existing jurisdiction
but reflect the limits on the essential competence of the forum state. In an inter-
national community of equal and independent states the sovereignty of states is
inherently limited by the sovereignty of other states. Certain disputes fall out-
side the essential competence of a national court.³⁶¹ The obligation to grant an
individual involved in such a dispute access to court—even if just in principle—
cannot rest with a state whose courts lack essential competence over the dispute.
The reasoning of the respondent state in the Fogarty case may be seen to fit the
argument advanced here quite well. In contrast with the Al-Adsani case the focus
in Fogarty is on the substance of the prohibition rather than merely on its inter-
national law character.³⁶²
How does this argument fit the construction of the Convention? It is recalled
that the Commission in the Spaans case relied on article 1 of the Convention to
declare the application inadmissible. Article 1 of the Convention provides that
‘[t]he High Contracting Parties shall secure to everyone within their jurisdiction
the rights and freedoms defined in Section I of this Convention.’ The Spaans
argument was later explicitly revived by Voyakis who held that ‘a jurisdictional
limitation imposed as a matter of general international law would seem to entail
that the area covered by that limitation does not lie “within the jurisdiction” of
the State party concerned’.³⁶³
This study prefers a different approach. Although the argumentation is not
altogether unappealing, it deviates from the accepted interpretation of the ration-
ale of article 1. If article 1 is interpreted as limiting the responsibility of the state
to cases where it was within its jurisdiction to act otherwise, it acquires a troub-
ling conceptual note. Jurisdiction in the sense of article 1 is primarily territor-
ial. The travaux préparatoires of the Convention make clear that the article sets
out to extend the benefits of the Convention not just to persons residing within
the territories of the contracting states but to all persons that find themselves on
the territories of these states.³⁶⁴ In exceptional cases the area of application of the
Convention exceeds that of national territory. The Court has consistently held
³⁶¹ Cf for the distinction between necessary and voluntary state immunity ch 2, p 63 of this
study.
³⁶² Cf p 383 above. The fit is of course not a perfect one. For one, the term ‘removed’ does not
reflect that such disputes have never been within the competence of the court.
³⁶³ E Voyakis (2003) 309.
³⁶⁴ Collected Edition of the Travaux Préparatoires of the European Convention on Human
Rights iii 260. Cf Bankovic v 17 European Member States of NATO (ECHR, 2001) available at
<http://www.echr.coe.int>, § 59–63.
that ‘the responsibility of a contracting party may also arise when, as a conse-
quence of military action—whether lawful or unlawful—it exercises effective
control of an area outside its national territory’.³⁶⁵ In any case, the exercise of
jurisdiction within the meaning of article 1 relates to the exercise of authority
over a territory and article 1 is primarily relied on to limit a state’s responsibility
under the Convention to violations of human rights that take place within terri-
tory that falls under the jurisdiction or effective overall control of that state. The
rationale of the article is that contracting states are only responsible for violations
of human rights that take place within territory over which they exercise essential
competence.
It may not immediately be clear how article 1 relates to the right of access to
court under article 6.1. The right of access is clearly not limited to persons or
disputes that are within the territorial jurisdiction of a contracting state. Rather,
it seems that the Convention applies whenever an individual seeks access to a
court that falls within the jurisdiction of the contracting state within the meaning
of article 1. In fact, this position was advanced by the court in its 2006 decision
in the Markovic case.³⁶⁶ The Court silently retreated from the Spaans judgement
holding that ‘once a person brings a civil action in the courts or tribunals of a
State there indisputably exists, without prejudice to the outcome of the proceed-
ings, a “jurisdictional link” for the purposes of Article 1.’³⁶⁷ As soon as this is
the case, the Convention is in principle applicable ratione loci and the inquiry
shifts to the requirements of article 6.1: does the person have a civil right and
is there an unacceptable limitation of the right of access to court in respect of
the determination of that right? The argument that the dispute is not within the
jurisdiction to adjudicate of the contracting state (or within its essential com-
petence in our version of the argument) hence targets the applicability ratione
materiae rather than the applicability ratione loci of the Convention. The limits
on the essential competence of a court qualify the substantive rights of individu-
als within a specific national order. Article 6.1 is not applicable to immunity
rules that reflect such limits. The jurisdiction at issue in that argument should
not be confused with the jurisdiction within the meaning of article 1 of the
Convention.
The distinction between necessary rules on the one hand and voluntary and
national rules on the other does not settle the applicability question completely.
When foreign states are allowed to exercise their sovereign authority on the terri-
tory of the forum state—think cross-border arrests, diplomatic or consular activ-
ities or the presence of foreign military bases—the forum state in fact accepts
that disputes may arise out of acts taking place on its territory that fall outside its
³⁶⁵ Loizidou v Turkey (Preliminary Objections), Series A–310, 20 EHRR 99 (ECHR, 1995)
130, § 62. Cf also Cyprus v Turkey 35 EHRR 731 (ECHR, 2001) 968–70, § 75–80; Bankovic v 17
European Member States of NATO ibid § 70.
³⁶⁶ Markovic and others v Italy (ECHR, 2006) available at <http://www.echr.coe.int>.
³⁶⁷ ibid § 54.
essential competence. The situation recalls the Van der Peet case. In that case the
Commission argued that the Convention could have a limited form of applic-
ability. Immunity of international organizations was considered compatible with
article 6.1 only if the right of access to court receives an equivalent protection
within the international organization.³⁶⁸ The comparison is however not com-
plete. While the immunity of international organizations removes disputes from
the jurisdiction of the forum state to the jurisdiction of the international organ-
ization, the immunity of foreign states for acta jure imperii limits that jurisdiction.
Hence, it can not be said that the forum state has transferred powers to the foreign
state. The forum state does not limit its jurisdiction by allowing foreign states
to exercise state power on their territory, but it does expose individuals within
its jurisdiction to legal disputes that cannot be decided by its courts. It is still
arguable that a member state can only do so without violating the Convention
if reasonable alternative means of redress are available. Whether the legal system
of the foreign state is a reasonable alternative will depend on the weight of the
other factors that determine the interest of the individual to have access to the
court. One factor is the principle of good faith, or legitimate expectation. There
is arguably a big difference between individuals who consciously and voluntarily
interact with an entity that is protected by immunity and individuals whose dis-
pute arises from involuntarily contact with such entity.³⁶⁹ Other factors are the
nationality and place of residence of the individual and the link between the act
complained of and the territory of the forum state. In other words, a remedy that
is reasonable for a national of the foreign state who has a dispute over an employ-
ment contract he voluntarily concluded with that state, may not be reasonable for
a national of the forum state who finds himself involuntarily in a legal relation
with a foreign state because of tortious activity of that state. Or, the situation of
a foreign diplomat who is employed at an Embassy in the territory of the forum
state differs fundamentally from that of an individual who is accidentally shot
while walking the dog past the fences of a foreign military base within the terri-
tory of the forum state. If the interests of the individual to have access to court are
particularly weighty the forum state may have to ensure that appropriate remed-
ies are available.
In sum, the examination of the relation between the rule of state immunity
and the right of access to court should distinguish three distinct situations. Let
us in conclusion apply these findings to the McElhinney, Al-Adsani, and Fogarty
cases.
³⁶⁸ Cf p 376–7 above.

³⁶⁹ It could even be argued that individuals that voluntarily and consciously engage legal rela-
tions with foreign states that pertain to acta jure imperii—like certain employment contracts—
have waived their right of access. Cf in respect of international organizations RA Lawson (1999)
440. An example of involuntary contact is the nuisance caused by foreign military aircraft on a
foreign military basis, cf Yamaguchi v United States (Japan, 2002).
The rules of state immunity at issue in Al-Adsani and Fogarty were clearly no
procedural bars to the exercise of jurisdiction, only the rule at issue in McElhinney
could be qualified as such. The national courts could not have decided the dis-
putes underlying the applications of Al-Adsani and Fogarty without violating
the independence and equality of a foreign state. The disputes did not fall within
the essential competence of the UK courts. The Court has failed to recognize the
qualitative difference between voluntary and necessary immunity rules. The
concept of waiver—considered by the Court to be conclusive evidence of
the procedural nature of the rule of state immunity—is not particularly helpful
as far as necessary immunity rules are at issue. ‘Waiver’ of ‘immunity’ enjoyed
under the necessary rule in fact creates an exceptional basis of jurisdiction for the
foreign national court.³⁷⁰ The tersely developed conclusion of the Court is based
on a simplified version of the complex reality of state immunity law. It was argued
in chapter 2 of this study that the use of the term immunity from jurisdiction
for the restrictive rule of state immunity may confuse. It underlies the popular
circular argument that state immunity presupposes jurisdiction because the term
immunity from jurisdiction indicates that jurisdiction precedes immunity. The
reasoning of the Court reflects this confusion. Had the Court proceeded from
substance instead of form it would have found that in two of the three cases under
consideration the disputes brought before the national court were not within the
essential competence of that court.
In the Al-Adsani case this finding settles the question. Article 6.1 is not applic-
able to the facts of the case and the application is inadmissible ratione materiae.
In the Fogarty case, however, the foreign state was allowed to perform sovereign
activity within the territory of the UK. The circumstances of the case are however
such that article 6.1 is not applicable. Fogarty has interacted voluntarily and con-
sciously with the United States and should have understood that the legal aspects
of that interaction were not within the competence of the UK courts.
The McElhinney case is admittedly not the most straightforward example of
an immunity rule constituting a procedural bar to the exercise of jurisdiction
rather than a substantive qualification of the right. It was argued in chapter 2
of this study that states that grant state immunity in situations that qualify
under the territorial tort exception do not apply international law. However, it
was explained that the territorial tort exception finds a limit in the discretionary
function exception and the vertical division of competences between national
courts and international dispute settlement procedures, the epitome being the
applicability of the laws of war.³⁷¹ Did the act of the UK soldier on Irish terri-
tory qualify under the exception for acts of foreign armed forces? It is argued
here that it did not. That exception should be understood from the perspective of
³⁷⁰ Cf ch 2 § 3.3.1 above.

³⁷¹ The territorial tort exception does not apply regardless of the acta jure imperii–acta jure
gestionis distinction—as is at times argued—but is in fact a proper reflection of that distinction.
Cf for the argument ch 2 § 3.2.1 above.
the vertical division of competences and requires that the illegality of the act of
a soldier under the national law of the forum state is of no importance in view of
the exclusive applicability of international law. It is argued here that that was not
the case in the shooting incident in the McElhinney case. Therefore, the disputed
immunity rule was not a necessary rule of international law. In contrast to the
other two cases before the Court, the restriction at issue in the McElhinney case
raises an issue under article 6.1 of the Convention.
3.2.4.3 Compliance
Does the rule of state immunity have a legitimate aim and is there a reasonable
relationship of proportionality between the rule and that aim? This study takes
issue with the Court’s answer to this question on two distinct levels. In the first
place it is asserted that the Court’s general approach to the compliance test fails
the standard it has itself developed in its earlier jurisprudence. The Court’s hand-
ling of the second prong of the article 6.1 inquiry arguably suffers the conse-
quences of its generous conclusion on the first. In a clear attempt to limit the
obligations of states under article 6.1 in respect of the rule of state immunity the
international law character of the rule was relied on as providing the legitimate
aim of the restriction and as securing its proportionality.³⁷² Second, this study
disagrees with the Court’s approach to the question of whether the rule of state
immunity at hand has in fact an international law character.
The Court has basically decided that immunity rules of an international law
character never violate article 6.1. Such rules, it argued, should be regarded as
“inherent” restrictions on the right of access to court.³⁷³ The approach to the issue
of compliance perplexes. International law requirements provide a legitimate aim
for the limitation and are conclusive in any inquiry into its proportionality? Did
the proportionality test not essentially require courts to weigh competing inter-
ests in order to prevent the undue reliance on those interests that provided the
legitimate aim? The Court did not consider it necessary to balance the interests
protected by the rule of state immunity with the interests of the individual to have
its claim heard. It effectively assumed that rules of international law always reflect
a proper balance of these interests. The test of restrictions under the Ashingdane
criteria is thus reduced to a paper tiger.
This is unacceptable. The concept of ‘inherent limitations to article 6.1’ is not
compatible with the principle that exceptions to Convention rights must reflect
a proper balance of interests.³⁷⁴ All restrictions must be effectively tested under
³⁷² Cf also the subsequent decision in Kalogeropoulou et al v Greece and Germany (ECHR,
2002).
³⁷³ The reasoning of the Court recalls that of the Italian Constitutional Court in the Russel case:
Soc. Immobiliare Soblim v Russel (1979) 62 RDI 797.
³⁷⁴ It should moreover be noted that the Court did not distinguish between the grant of immun-
ity in accordance with international law that existed at the moment that states signed the European
Convention and applications that may have developed later, or are still to develop. Surely it is not
the Ashingdane criteria, bearing in mind that restrictions to the rights under the
Convention such as that safeguarded by Article 6 should be interpreted strictly
and narrowly. In each case before the Court, the interests of the individual to have
access to the court—a principle that ‘ranks as one of the universally “recognised”
fundamental principles of law’³⁷⁵—should be weighed against the interests pro-
tected by the rule of state immunity at hand. If the interests of the individual
outweigh those of the state, the forum state has two competing obligations: the
obligation to grant immunity in accordance with international law and the obli-
gation to grant access to court in accordance with international human rights
law. If it chooses to violate the obligation owed to the private individual it incurs
responsibility for the individual’s damages.
It is, in the first place pointed out that the weight of the interest protected by
the restriction—the general interest of the community—should be determined
by the rationale of the immunity rule. The international law character of a rule is
an indication of the importance attached to this rationale by states but an inde-
pendent inquiry remains necessary. It is in this respect for example possible to
distinguish the weighty ne impediatur legatio rationale that underlies diplomatic
immunity from the archaic protection of dignity rationale that underlies head of
state immunity. If a certain immunity rule does not reflect requirements under
international law it may still protect a valuable interest. However, the weight of
the interest is likely to be less than that of the interests protected by immunity
rules of an international law character.³⁷⁶
It must subsequently be ensured that the interests protected by the immunity
rule are not outweighed by the interests of the individual in access to court.³⁷⁷ The
Court itself has stated in Waite and Kennedy v Germany that the availability of
alternative effective remedies is the material factor in this balancing exercise.³⁷⁸
Judge Loucaides argued in his dissent in the McElhinney case that the existence
of an alternative remedy abroad is irrelevant for the question of whether there
possible for states to agree to increase the scope of state immunity under voluntary rules without
raising any issue under the Convention?
³⁷⁵ Golder v United Kingdom (ECHR, 1975) 535–6, § 35.
³⁷⁶ If states agree to increase the scope of immunity under conventional or customary inter-
national law to include cases that could previously be heard by the courts it can also be ques-
tioned whether the interests protected by that application of the rule are particulary weighty.
In this respect it is interesting to note that ratification of the UN Convention on Jurisdictional
Immunities of States and their Property (2004) may entail for several states the obligation to grant
immunity in cases where they previously did not.
³⁷⁷ It will be clear from the discussion of the Osman case in § 3.2.2.3 above that this author does
not share the position of Judge Loucaides on the question of proportionality. The Judge argued that
any immunity that at the application stage did not leave room for deviation of the rule on the basis
of counterweighing interests violates art 6.1. This study argues that this is only so if the rule does
not reflect a proper balance between the various competing interests involved in a specific case. Cf
different I Pingel, ‘Droit d’accès aux tribunaux et exception d’immunité: La Cour de Strasbourg
persiste’ (2002) 106 RGDIP 893, 906.
³⁷⁸ Cf also Jones v Saudi Arabia and Abdul Aziz and Mitchell a.o. v Al-Dali a.o. (UK, 2004)
§ 85–6.
is a violation of the right of access to court. That cannot however be sustained.
That that possibility may at times not be enough to tip the balance of interests to
the side of the foreign state when the interests of the individual to have access
to the court are particularly weighty in view of other factors, or when the interests
of the state are particularly trivial—as was indeed the case in McElhinney—does
not mean that it is no factor to begin with.
In contrast to the rule of immunity of international organizations, the rule of
state immunity may seem not to entail the risk of denial of justice since an alter-
native remedy is naturally available, namely the national courts of the foreign
state. This remedy is however often illusory. The burden of litigating in a foreign
country, in a foreign language and within a foreign legal system may render the
alternative remedy unavailable in practice. Furthermore, the foreign legal system
may not recognize the rights and interests protected within the legal system of
the forum state.³⁷⁹
Whether the alternative remedy is a reasonable alternative will also depend on
the weight of the other factors that determine the interest of the individual to have
access to the court. One such factor is the principle of good faith, or legitimate
expectation. The interest to have access to court of individuals who consciously
and voluntarily interact with an entity that is protected by immunity is not as
weighty as that of individuals whose dispute arises from involuntary contact with
such entity. In this respect, the distinction that Judge Rozakis drew in his dis-
senting opinion in McElhinney between the employees of an international organ-
ization in the cases of Waite and Kennedy and Beer and Regan and McElhinney
is convincing. The other factors identified by the Judge—the nationality of the
victim and the link between the violation and the territory of the forum state—
are also factors of influence. As stated above, a remedy that is reasonable for a
national of the foreign state who has voluntarily entered a contract with that state
may not so be reasonable for a national of the forum state who finds himself invol-
untarily in a legal relation with a foreign state because of tortious activity of that
state. Also the importance of the right that is allegedly infringed may be taken
into account. In particular, the fact that proceedings regard the alleged violation
of Convention rights adds weight to the interests of the individual to have access
to court.³⁸⁰ In order to determine the compliance of the state immunity rule at
issue in the case of McElhinney v Ireland with article 6.1 it is hence necessary to
balance the competing interests involved in that rule. It was already explained
that the application of the state immunity rule did not reflect an obligation that
Ireland has under international law. Judges Caflisch, Cabral Barreto, and Vajic
concluded in their dissenting opinion that the limitation ‘hence constituted a
³⁷⁹ Cf eg JF Lalive (1953) 221; J Salmon and S Sucharitkul, ‘Les Missions Diplomatiques Entre
Deux Chaises: Immunité Diplomatique ou Immunité d’État?’ (1987) 33 AFDI 163, 179.
³⁸⁰ Cf § 3.3 and § 3.4 below for additional arguments against immunity when the violation of
Convention rights is at issue.
disproportionate restriction of the right of access to court’.³⁸¹ This conclusion

is unsatisfactory. It only adds to the problematic nature of the approach of the
Court to the compliance test. The inquiry into the international law nature of
the rule thus replaces the inquiry into the balance of the competing interests.
Better is the approach of Judge Rozakis who recognized that the absence of a
clear requirement of international law weakens the interests in support of the
immunity rule that must still be weighed against the interests of the individual
to have access to the court. In a case like McElhinney where all factors added
weight to the interest of the individual to have access to the court, and the inter-
est supporting the restriction was weak because it did not reflect an obligation
under international law the balance cannot but tip to the side of the applicant.
This author therefore believes that the Court should have found that Ireland
violated article 6.1.
It should at this point be stressed that the oft-heard argument that states are
free to grant other states or foreign state officials as much immunity as they like
is debatable from the perspective of the fundamental rights of individuals rec-
ognized in international law. Human rights law may limit the freedom of states
to grant more immunity than required.³⁸² In this respect it is also interesting
to briefly note article 9 of the Resolution of the Institut de Droit International
on the Immunities from Jurisdiction and Execution of Heads of State and of
Government in International Law. The article provides that ‘[n]othing in this
Resolution prohibits a State from unilaterally granting to a foreign Head of State,
in conformity with international law, larger immunities than those laid down by
the present provisions.’³⁸³ At the plenary debate on the proposals of Rapporteur
Verhoeven, Schermers expressed opposition to this provision. He stated that
‘immunities, as an exception to the normal application of the law, should be as
limited or restricted as possible.’ He proposed to either amend the provision to
provide that ‘States should grant no more privileges or immunities than required
by the present provisions’ or to delete the article altogether.³⁸⁴ While the article
explicitly provides that national law immunities should be in accordance with
international law, this author agrees with Schermers that the signal given by the
article is unfortunate.
We should finally consider whether the interests protected by the comprehen-
sive personal immunities of diplomatic agents and foreign heads of state warrant
³⁸¹ Dissenting Opinion Judges Caflisch, Cabral Barreto, and Vajic (emphasis added).
³⁸² Cf in this respect Harbhajan Singh Dhalla v Union of India (India, 1986), discussed in ch 2
§ 2.2.2 above.
³⁸³ Institut de Droit International, Resolution on Immunities from Jurisdiction and Execution
of Heads of State and of Government in International Law (Résolution sur les immunités de juridic-
tion et d’exécution du chef d’Etat et de gouvernement en droit international) (2001), (2000–01)
69 AIDI 743.
³⁸⁴ Institut de Droit International (Rapporteur J Verhoeven), Les immunités de juridiction
et d’exécution du chef d’Etat et de gouvernement en droit international, Plenary Session (2001),
(2000–01) 69 AIDI 601, 663.
the substantial limitation of the rights of private individuals. The outcome of
the test is not static. The weight accorded to the fundamental rights of individ-
uals may change with time. Grotius wrote in 1625 that ‘the security of ambas-
sadors is a matter of greater importance than the punishment of an offense. For
an ambassador may be punished by the one who sent him, if the latter so chooses.
And if he refuses, he may, as a supporter of crime, be compelled by war to inflict
punishment.’³⁸⁵ Until the 1940 case of De Meeüs v Forzano³⁸⁶ Italian courts
struck the balance differently. The Italian Court of Cassation of Rome stated
in Comina v Kite that an absolute rule of diplomatic immunity is contrary to
justice.³⁸⁷
Also Fiore disagreed with the common practice of granting diplomatic agents
virtually absolute immunity from jurisdiction.³⁸⁸ ‘Comment admettre’, he won-
dered, ‘qu’un Ministre public puisse contracter des dettes en ne pas payer ses
créanciers, qu’il puisse consentir des obligations et ne pas accomplir ses engage-
ments? Qu’il puisse, en vivant dans un pays, invoquer à son profit l’application
des lois civiles dans ses rapports evec les habitants de ce pays et ensuite refuser
d’admettre l’application des ces mêmes lois, en invoqquant le privilège des son
immunité?’³⁸⁹ In a similar vein, Fiore rejected diplomatic immunity from penal
jurisdiction for crimes committed in a private capacity.³⁹⁰
When the International Court of Justice concluded in the Arrest Warrant
case that the personal immunity of a minister of foreign affairs does not yield
to developments in international criminal law Judges Higgins, Kooijmans, and
Buergenthal explained in their Joined Separate Opinion that ‘[t]he law of priv-
ileges and immunities . . . retains its importance since immunities are granted to
high State officials to guarantee the proper functioning of the network of mutual
inter-State relations, which is of paramount importance for a well-ordered and
harmonious international system.’ However, they cared to add that ‘the weights
on the two scales are not set for all perpetuity’.³⁹¹
It should however be realized that the perspective of the judges of the ICJ is
essentially different from that of the judges of the ECHR. The ICJ only deter-
mines the scope of the rule of state immunity. They therefore limit their appraisal
of the influence of human rights law (or international criminal law in this case) to
the balance struck by states. They do not balance the weights on the scale them-
selves. The ECHR, however, must determine whether a particular immunity rule
³⁸⁵ H Grotius, De Jure Belli ac Pacis (1625), trans by LR Loomis (1949) ii 197.
³⁸⁶ De Meeüs v Forzano (Italy, 1940) 94 (my translation): ‘costituiscono il substrato materiale
necessario per lo svolgimento delle attività pubbliche’.
³⁸⁷ Cf Comina v Kite (Italy, 1922) 174.
³⁸⁸ P Fiore, Nouveau droit international public, suivant les besoins de la civilisation moderne
(2nd edn, 1885) ii 559–63 and 569–71.
³⁸⁹ ibid 559.
³⁹⁰ ibid 569–71.
³⁹¹ Arrest Warrant Case, Joint Separate Opinion of Judges Higgins, Kooijmans, and
Buergenthal, 85, § 75.
violates the right of access to court. While only states can change the rule, the
ECHR may provide them with a policy argument for change when it finds that
the rule does not reflect a proper balance of the interests involved. Arguably, a
reconsideration of the balance struck between the interests of states on the one
hand and the rights and interests of individuals on the other is called for today.
Especially the part of head of state immunity that exceeds the ne impediatur
legatio rationale of diplomatic immunity should be subjected to a critical review.
It is very arguable indeed that the interests of private individuals to have their
dispute with a foreign head of state heard may outweigh the interest of protecting
the dignity of a foreign head of state. But also the rule of diplomatic immun-
ity should be subjected to close scrutiny. While ultimately the comprehensive
immunity may be necessary to ensure the effective functioning of diplomatic
agents, it can at least be questioned whether states undertake sufficient action to
limit the prejudice the immunity causes to private individuals.
As said earlier, the interest of the private individual to have his case heard is
especially weighty when the dispute arises from activity of diplomatic agents
that is closely linked to the territory of the forum state and that arises from acci-
dental contact between the individual and a diplomatic agent. There may in
addition be factors related to the alternative forum that determine the weight
of the interest. In addition to the factors named above it should be realized that
diplomatic immunity is at times abused by states. In the case of premeditated
state crime the remedies available within the courts of the sending state are likely
to be illusory.
On the other hand, the interests protected by the rule of diplomatic immunity
are indisputably weighty. The International Court of Justice stated in the Teheran
Hostages Case that ‘the institution of diplomacy, with its concomitant privileges
and immunities, has withstood the test of centuries and proved to be an instru-
ment essential for effective co-operation in the international community, and for
enabling States, irrespective of their differing constitutional and social systems,
to achieve mutual understanding and to resolve their differences by peaceful
means’.³⁹² Hurst explained that ‘[t]he duties which a foreign diplomatic repre-
sentative has to perform are in many cases far from easy and his communications
far from welcome to the State to which they are made. If the diplomatic represen-
tative were at the mercy of interruptions which might be caused to his task by an
unscrupulous abuse of powers of the local administration and of the machinery
which must exist in every State for the settling of disputes between private per-
sons, it might be impossible for him to carry out his duties.’³⁹³
Obviously, the danger of abuse of state power by the receiving state can
only be curbed by a comprehensive immunity. However, the interests of private
³⁹² United States Diplomatic and Consular Staff in Tehran (ICJ, 1979) 19, § 39.
³⁹³ C Hurst, ‘Diplomatic Immunities’ in International Law, The Collected Papers of Sir Cecil
Hurst (1950) 169, 174 (Trans of C Hurst, ‘Les Immunités Diplomatiques’ (1926–II) 12 RdC
115, 122).
individuals can be protected by measures other than a general restriction of the
scope of diplomatic immunity. In the first place, restrictions can be introduced
on a regional level. The risk of undue interference is limited within a group of
like-minded democratic states like, for example, those members of the European
Union. Schermers, for one, has proposed a European convention abolishing
diplomatic immunity.³⁹⁴ Alternatively, states could attempt to limit the nega-
tive consequences of the application of the comprehensive immunity rule. For
example, Hurst argued already in 1929 that states have an obligation to their own
nationals to refrain from an undue increase in the number of individuals enti-
tled to such immunity within their territory.³⁹⁵ It should in this respect be noted
that in preparation of the text of the 1961 Vienna Convention on Diplomatic
Relations several proposals were made with a view to limit the negative impact of
diplomatic immunity on the fundamental rights of individuals. For one, it was
suggested that the following article be included:
A diplomatic agent shall be justiciable in the courts of the sending State. The competent
tribunal shall be that of the seat of the Government of the sending State, unless some
other is designated under the law of that State.³⁹⁶
The proposal was however opposed by states that did not want to change their
laws to include jurisdiction over facts taking place abroad and did not secure suf-
ficient support.³⁹⁷
Furthermore, the Netherlands submitted a proposal to make diplomatic
immunity for civil claims arising from motor traffic accidents ‘subject to the con-
dition that such action can be brought directly against an insurance company
before a court of the receiving State’.³⁹⁸ Also that proposal was rejected, but it is
interesting to note that in several states it is in fact explicitly required for diplo-
mats to have liability insurance against risks arising from their participation in
the traffic and often it is provided that insurance companies cannot take advan-
tage of the diplomatic immunity of its client.³⁹⁹
A non-binding Resolution annexed to the Convention provides a third indi-
cation that the drafters of the Convention were concerned for the interests of pri-
vate individuals. The Resolution refers to ‘the deep concern expressed during the
deliberations of the Conference that claims of diplomatic immunity might, in
³⁹⁴ HG Schermers (1998) 156, 161.

³⁹⁵ CJB Hurst, ‘Diplomatic Immunities—Modern Developments’ (1929) 10 BYIL 1, 5.
³⁹⁶ YBILC 1957 i 105 (proposal François).
³⁹⁷ UN Doc 4/114 add 4, add 2 4/116, 58.
³⁹⁸ UN Doc A/Conf/C 1/L 186/Rev 1 (1961); UN Doc A/Conf 20/14, pp 166–72. Cf E Kerley,
‘Some Aspects of the Vienna Conference on Diplomatic Intercourse and Immunities’ (1962)
56 AJIL 88, 120.
³⁹⁹ Cf E Denza (1998) 233 for the examples of the United Kingdom, the United States,
Canada and Belgium. She also notes that the fact that The Netherlands did not ratify the Vienna
Convention until 1984 was in large part due to its discontent regarding the question of motor
accident claims, 236.
certain cases, deprive persons in the receiving State of remedies to which they
are entitled by law’ and recommends ‘that the sending State should waive the
immunity of members of its diplomatic mission in respect of civil claims of per-
sons in the receiving State when this can be done without impeding the perform-
ance of the functions of the mission, and that, when immunity is not waived, the
sending State should use its best endeavours to bring about a just settlement of
the claims’.⁴⁰⁰
While states have proven sympathetic to the plights of private individuals, the
only effective step that some of them have taken to protect the interests of private
individuals is the obligatory insurance of motor vehicles. It is therefore question-
able whether they comply with their obligations under article 6.1 ECHR. This
author suggests that states should give their obligations under this article more
serious thought. One measure that they could take to ensure the rights of their
citizens is to oblige sending states to assume responsibility for damages caused by
their diplomatic agents⁴⁰¹ and grant citizens a right to diplomatic protection.
One final issue that needs consideration in this regard is the suggestion that it is
fair to have the receiving state bear the consequences of the law of diplomatic immun-
ity instead of the private individual. The particular nature of the rule of diplomatic
immunity makes a proper balancing of the interests of private individuals and
states for the purpose of the determination of the proper scope of the rule impos-
sible. While in a case at hand the interests of the individual may outweigh those
of the state, a limitation of the scope of the rule of diplomatic immunity would
undermine the whole edifice of diplomatic immunity. Accordingly, in such cases
the grant of diplomatic immunity violates the rights of the individual while there
is no policy argument in favour of change of the scope of diplomatic immunity. The
grant of diplomatic immunity may then be seen to entail the responsibility of
the receiving state under article 6.1 ECHR. In this respect the French cases of
Dame Burgat et autres and Tizon et Millet are notable.⁴⁰² The case of Dame Burgat
concerned a dispute over a raise of the rent in accordance with the law between
a landlord and his tenant who was the wife of the permanent representative of
Honduras at UNESCO in Paris. The court attached great importance to the
fact that the rental contract was concluded twenty years earlier when the woman
was still married to her previous husband. It was therefore, the court stressed,
not foreseeable for the landlord that his tenant would at some point be accorded
diplomatic status and it concluded that France was responsible for the damages
suffered by the application of the rule of diplomatic immunity to the dispute.
⁴⁰⁰ Non-binding Annex to the Vienna Convention on Diplomatic Relations: Resolution no II

Consideration of Civil Claims, UN Doc A/Conf 20/10/Add 1.
⁴⁰¹ The Holy See proposed in Vienna to have sending state pay damages caused by its diplomatic
agents: UN Doc A/Conf/14 in UNConference I 175–6.
⁴⁰² Dame Burgat et autres (1977) 104 JDI 630 (France, Conseil d’Etat, 1976); Tizon et Millet
(1985) 31 AFDI 928 (France, Conseil d’Etat, 1984).
It explained that ‘la responsabilité de l’Etat se trouve engagée sur le fondement du
principe de l’égalité des citoyens devant les charges publiques’.⁴⁰³
The case of Tizon et Millet concerned the refusal of the state to execute a judg-
ment establishing a debt owed by an individual protected by diplomatic immun-
ity to two French merchants. The Conseil d’Etat did not regard the French state
responsible for the damages suffered by the two merchants as a consequence of
the application of the law of diplomatic immunity because the prejudice was not
sufficiently serious and the claimants had not exhausted all available civil remed-
ies before proceeding to public law. The responsibility of the receiving state, the
court stressed, ‘ne saurait constituer qu’une ultima ratio’.⁴⁰⁴ The judgment clearly
intimates that the state would have been responsible had the prejudice been ser-
ious and had all remedies been exhausted.
Both Schermers and Tanzi have advanced proposals to this effect,⁴⁰⁵ and in
the US legislation based on this principle was put to Congress—but failed to
secure sufficient support.⁴⁰⁶ The idea deserves serious consideration. With the
two conditions formulated by the Conseil d’Etat as minimum requirements, this
author supports the suggestion that diplomatic immunities may unduly infringe
the rights of private individuals. The interests protected by these immunities are
beyond dispute. It is however not said that the handful of individuals that suffer
denial of justice as a consequence should bear the financial burden themselves.
Since it is the community as a whole that stands to benefit from diplomatic inter-
course it is arguable that it is the community that should pay its price.
In conclusion it is argued in this study that even if the parameters of the
Court’s approach to the compliance test were accepted, the terms of its inquiry—
and in the McElhinney case also the outcome—fail to convince. The Court had to
establish that the three disputed applications of the state immunity rule reflected
requirements of international law. The relevant reasoning of the Court and of the
dissenting judges in Al-Adsani v UK was critically discussed earlier in this chap-
ter.⁴⁰⁷ Here we will take a brief look at the reasoning in Fogarty and McElhinney.
The inquiry into the state of state immunity law in the Fogarty and McElhinney
cases compares somewhat meagrely to that undertaken in the Al-Adsani case. The
Court limited itself to the finding that the respondent states were ‘not alone’ in
holding that immunity attaches to suits by employees at diplomatic missions and
in respect of territorial torts respectively and decided that both applications of the
⁴⁰³ ibid 631.

⁴⁰⁴ Tizon et Millet (France, 1984) 929.
⁴⁰⁵ HG Schermers (1998) 162; A Tanzi (1991) 189.
⁴⁰⁶ The so-called Solarz Bill included ‘the principle that whenever a person is injured or suf-
fers financial loss due to action by a foreign state official covered by the immunity statute, that
person can apply for redress from the United States Government’. Cf Diplomatic Privileges and
Immunities, Hearings and Markup Before the Subcommittee on International Operations of the
House Committee on International Relations, 95th Congress 1st session 1977 45.
⁴⁰⁷ Cf § 2.2 above.
rule did not ‘fall outside any currently accepted international standards’.⁴⁰⁸ This
study argues that while this scope of the rule argumentation was acceptable in the
Fogarty case, it is out of place in the McElhinney case. This is due to the essential
different role of state practice in the ascertainment of international law require-
ments in the two cases. This criticism builds on the findings of chapter 2 of this
study.⁴⁰⁹
States agree that employment disputes involving foreign states may fall out-
side their essential competence. The obligation to respect the independence and
equality of other states imposes this limit. The exact contours of the obligation are
however blurred. The principle can be derived from logic but only a uniform and
consistent state practice can establish its outer limits. As long as states disagree
on these contours, the various applications of the rule that argue convincingly
in terms of the principle are all acceptable interpretations of the requirements of
international law. When practice is divided and several states adopt one particu-
lar interpretation of the requirements of international law it can hence indeed be
said that those states apply international law requirements. The Court’s reasoning
on this point in Fogarty is therefore satisfactory.⁴¹⁰
The disagreement of states on the territorial tort exception is of an entirely dif-
ferent character. States that grant state immunity in situations qualifying under
the territorial tort exception cannot convincingly argue in terms of the principle of
independence and equality of states. This application of the rule of state immun-
ity can only be said to be required by international law if it is established through
a consistent and uniform state practice. In other words, this application of the
rule can only be a voluntary rule of international law. For the purpose of ascer-
taining the requirements of international law inconsistent state practice hence
has the role it normally has in the ascertainment of customary international law.
A divided practice can only lead to the conclusion that international law does not
require the particular application of the rule and that, accordingly, the rule has
the character of national law. The fact that the application does not violate inter-
national law is irrelevant for the inquiry. The Court’s conclusion in McElhinney
hence fails to convince. It should have concluded that Ireland was not obliged to
grant state immunity to the United Kingdom.
3.2.5 Conclusions and Final Observations

This section has argued that the argument that the rule of state immunity violates
the right of access to court of individuals finds its limit in the distinction between
necessary and voluntary state immunity. The argument has no force as against
state immunity for acta jure imperii. The right of access applies to immunity rules
⁴⁰⁸ McElhinney, 334, § 38; Fogarty, 314, § 37.

⁴⁰⁹ Cf ch 2 § 3.3.2.1 above.
⁴¹⁰ It is hence argued that Judge Loucaides misconceived the role of state practice when he
argued that the application of the rule did not reflect international law requirements because it was
not supported by a widespread and consistent state practice.
that reflect international law voluntary immunity and national law immunity.
Only when the forum state has consented to the exercise of foreign state power on
its territory has the right of access to court a degree of applicability.
If an individual has a prima facie right of access to court the forum state has
the obligation to ensure that restrictions on that right do not impair the very
essence of the right, have a legitimate aim and are proportional to that aim. The
exact obligation depends on the weight of the interests protected by the restric-
tion and the weight of the interest of the individual to have access to court. It was
explained that the international law character of a certain application of the state
immunity rule adds to the interests protected by the rule but does not of itself
decide the balancing exercise. If the interests of the individual outweigh those
protected by the immunity rule the right of access to court is violated and the
state whose courts have granted the immunity is responsible for the violation. If a
state wants to fulfil both its obligations under a voluntary immunity rule and the
right of access to court it must make sure that the interests of the individual are
sufficiently protected without access to the courts of the forum state. If it fails to
do this it should compensate the individual.
Accordingly, this study respectfully disagrees with the judgments of the
European Court of Human Rights in the McElhinney, Al-Adsani, and Fogarty
cases. While this study equally concludes that there was no violation of article 6.1
in the Al-Adsani case and the Fogarty case, the reasons on which this conclusion
rest are fundamentally different from those relied on by the Court. The Court
concluded—and only judge Loucaides dissented—that immunity rules that have
the character of international law always comply with the Ashingdane criteria.
This study argued that article 6.1 is not applicable to begin with to disputes con-
cerning acts of torture allegedly committed within the territory of the defendant
and certain employment disputes. As regards the McElhinney case this study also
concludes differently on the question of violation of article 6.1. While the Court
reasoned in the same terms in all three cases, this study argued that since article
6.1 indeed applies to the case the interests protected by the restriction and the
interests of the individual to have access to court must be properly balanced. The
Court has made a mockery of the compliance criteria for restrictions on the right
of access. The assertion that the right of access is never violated by restrictions
under rules of international law denies the right an independent meaning. This
study concluded that the interests of McElhinney clearly outweighed those pro-
tected by the immunity rule—also in view of the rule’s national law character—
and that article 6.1 had therefore been violated.
The Court has elaborated this idea of ‘inherent limitations’ in subsequent
cases concerning immunity of members of parliament and members of the judi-
ciary. In A v United Kingdom the Court concluded that ‘a rule of parliamentary
immunity, which is consistent with and reflects generally recognised rules within
signatory States, the Council of Europe and the European Union, cannot in prin-
ciple be regarded as imposing a disproportionate restriction on the right of access
to a court’. It reiterated its finding that ‘[j]ust as the right of access to a court is
an inherent part of the fair trial guarantee in that Article, so some restrictions on
access must likewise be regarded as inherent, an example being those limitations
generally accepted by signatory States as part of the doctrine of parliamentary
immunity’.⁴¹¹ However, contrary to the three cases on the rule of state immunity
discussed in this section the Court did discuss the weight of the respective inter-
ests. It emphasized the importance of the principle of parliamentary immunity
and it pointed out that individuals are not entirely without means of redress and
that several mechanisms control the activities of the members of parliament.⁴¹²
In the case of Ernst v Belgium the Court again reiterated that there are certain
inherent limitations to the right of access to court, like state immunity and par-
liamentary immunity.⁴¹³ To see whether the immunity of members of the judi-
ciary is also compatible with article 6.1 of the Convention, ‘il importe’ according
to the Court ‘d’examiner si les requérants disposaient d’autres voies raisonnables
pour protéger efficacement leurs droits garantis par la Convention’.⁴¹⁴
In sum, the Court indicated in these cases that inherent limitations always
reflect a positive outcome of a test under the Ashingdane criteria. The notion of
inherent limitations is thus not much more than the notion of limitations inher-
ent in the right of access to court that do not impair the very essence of that
right, have a legitimate aim, and are proportional. In McElhinney, Al-Adsani,
and Fogarty the Court has not dared to question the established institution of
state immunity (or diplomatic immunity for that matter). As a consequence, this
author believes the safeguards of article 6.1 not to be ‘practical and effective’ as
far as immunity rules are concerned.⁴¹⁵ It is hoped that the Court will soon get a
chance to retrace its overcautious steps.
3.3 The Right to a Remedy

Article 13 of the European Convention on Human Rights provides that
[e]veryone whose rights and freedoms as set forth in the Convention are violated shall
have an effective remedy before a national authority notwithstanding that the violation
has been committed by persons acting in an official capacity.
⁴¹¹ A v United Kingdom (ECHR, 2002) 937, § 83. Cf also Cordova v Italy (no 1 and 2) 45 EHRR
43 (ECHR, 2003 ) § 60–1.
⁴¹² A v United Kingdom (ECHR, 2002) 937 § 79ff and 938 § 86.
⁴¹³ Ernst v Belgium 39 EHRR 35 (ECHR, 2003) § 52.
⁴¹⁴ ibid § 53.
⁴¹⁵ In Soering v UK A–161, 11 EHRR 439 (ECHR, 1989) 467, § 87 the Court considered that
‘[i]n interpreting the Convention regard must be had to its special character as a treaty for the col-
lective enforcement of human rights and fundamental freedoms . . . Thus the object and purpose
of the Convention as an instrument for the protection of individual human beings require that its
provisions be interpreted and applied so as to make its safeguards practical and effective.’
The Court has explained on many occasions that the article ‘requires the pro-
vision of a domestic remedy to deal with the substance of an “arguable claim”
under the Convention and to grant appropriate relief’. While states have ‘some
discretion as to the manner in which they conform to [this obligation]’, the rem-
edy must ‘be “effective” in practice as well as in law’.⁴¹⁶
The Court has held moreover that when rights as fundamental as the right to
life or the prohibition against torture, inhuman and degrading treatment under
articles 2 and 3 of the Convention are at stake the notion of effective remedy
entails ‘a thorough and effective investigation capable of leading to the identifi-
cation and punishment of those responsible and including effective access for the
complainant to the investigatory procedure’.⁴¹⁷
We saw in section 2.3.2.2 of this chapter that it is occasionally argued that the
obligation to provide a remedy for human rights violations clashes with the obli-
gation states owe to foreign states under the law of state immunity. Bianchi, for
example, held that ‘[t]o argue that states which ratify international human rights
treaties providing for a right to a remedy have implicitly accepted to subject to the
judicial scrutiny of their domestic courts the conduct of foreign states is a per-
fectly tenable interpretation.’⁴¹⁸ Bröhmer developed and advanced the argument
in respect of article 13 of the Convention. He argued that when a right under the
Convention has been violated all contracting states are obliged to provide a rem-
edy, even when the violation has been committed by a non-Convention state.⁴¹⁹
This study argued however that the force of the argument is limited. And as far
as article 13 ECHR is concerned it may not be coherent at all. In the first place it
is commonly agreed that the obligation that corresponds to the right to a remedy
rests solely on the state within whose jurisdiction the alleged violation of a fun-
damental right has taken place. Our area of inquiry is therefore reduced to the
violations of Convention rights by foreign states or foreign state officials within
the territory of the forum state that are covered by the law of state immunity. In
chapter 2 of this study it was explained that the scope of the law of state immun-
ity knows a normative limit as far as acts on foreign territory are concerned, since
the discretion of the foreign state to exercise its sovereign power depends on the
extent of the consent of the state on whose territory it acts. This is not to say that
acts of foreign states on foreign territory that violate human rights can never qual-
ify as acta jure imperii. We can think of the practice of refusal of visa by a foreign
embassy on the basis of discriminatory grounds. And what about the operation
of a prison camp by a state on the territory of another state? Article 14 Torture
⁴¹⁶ Cf eg Z and Others v United Kingdom (ECHR, 2001) 140–1, § 108; Assenov and Others v
Bulgaria 28 EHRR 652 (ECHR, 1998) 704, § 117; Aydin v Turkey 25 EHRR 251 (ECHR, 1997)
300, § 103; Aksoy v Turkey 23 EHRR 553 (ECHR, 1996) 592–593, § 95.
⁴¹⁷ Aksoy v Turkey (ECHR, 1996) 593, § 98; Assenov and Others v Bulgaria (ECHR, 1998);
Z and Others v United Kingdom (ECHR, 2001) 141, § 109; Kaya v Turkey 28 EHRR 1 (ECHR,
1998) 50–1, § 107.
⁴¹⁸ A Bianchi (1997) 424.
⁴¹⁹ J Bröhmer (1997) 171–7 and 186–8, especially 177.
Convention and in fact customary international law would seem to oblige a state
that allows another state to exploit a prison on its territory to provide a remedy for
the claims of prisoners that allege that they are tortured by the foreign state.
It was however argued in section 2.3.2.3 that this obligation does not clash
with the obligations under the law of state immunity and the law of diplomatic
immunity. The remedy provided must be effective to ensure compliance with the
prohibition to violate human rights but does not necessarily entail access to the
judicial authorities of a state. Accordingly, while the right to a remedy may be vio-
lated when there is no access to court because of the rule of state immunity, there
is no direct clash between the immunity and the right.
As said, special considerations apply to article 13 ECHR. It is widely believed
that the article obliges a state to provide a remedy only in respect of claims under the
Convention against that state.⁴²⁰ In other words, the obligation would not extend
to violation of the substantive rights of the Convention within its jurisdiction
but only to violations of the Convention as such. Article 13 only applies when
there is an arguable claim under the Convention. While it is arguable that the art-
icle does apply when a member state violates the Convention on the territory of
another member state, the article does not require remedies against non-member
states.⁴²¹
3.4 The Right to Effective Protection

International human rights law does not only prohibit states to interfere with the
fundamental rights of individuals, it also entails the positive obligation to secure
the effective protection of these rights within their jurisdiction.⁴²² Individuals
have a right to effective protection of their fundamental rights.
One obligation corresponding to this right is the obligation of the state to
ensure that its civil and criminal law provide effective deterrence against the
violation of fundamental rights. In the context of the European Convention on
Human Rights the case of X and Y v The Netherlands illustrates this point.⁴²³
A gap in Dutch law made it impossible to prosecute a person suspected of rap-
ing a mentally disabled girl. The Court considered that the positive obligations
of states under article 8 of the Convention ‘may involve the adoption of meas-
ures designed to secure respect for private life even in the sphere of the relations
of individuals between themselves’.⁴²⁴ While states in principle enjoy a margin
⁴²⁰ Cf T Barkhuysen, Article 13 EVRM: Eff ectieve Nationale Rechtsbescherming by Schendingen

van Mensenrechten (1998) 73–110; RA Lawson (1999) 459–60; F De Vittor, (2002) 596. Cf differ-
ent A Clapham, Human Rights in the Private Sphere (1993) 240–4.
⁴²¹ The fact that there is no remedy against private individuals may mean that the state has
violated its positive obligations under the Convention cf § 3.4 below.
⁴²² Cf in general E Klein (ed), The Duty to Protect and to Ensure Human Rights (1999).
⁴²³ X and Y v The Netherlands (ECHR, 1985). Cf also MC v Bulgaria 40 EHRR 20 (ECHR,
2003) § 166 and Siliadin v France 43 EHRR 16 (ECHR, 2005) § 112.
⁴²⁴ ibid 239–40, § 23.
of appreciation as regards the choice of means to secure compliance with these
obligations and ‘[r]ecourse to the criminal law is not necessarily the only answer’,
the Court decided that at times the protection afforded by civil law is insufficient.
When ‘fundamental values and essential aspects of private life are at stake . . .
[e]ffective deterrence is indispensable . . . and it can be achieved only by criminal-
law provisions’.⁴²⁵ Because Dutch legislation did not provide effective deterrence
to protect the fundamental rights of a certain group of individuals the Netherlands
was held responsible for a violation of article 8 of the Convention.⁴²⁶
In addition, the right to effective protection is generally agreed to entail an
obligation on the state to bring those who violate human rights within its terri-
torial borders to justice. Orentlicher was one of the first—and certainly one of
the most prominent—authors to point this out.⁴²⁷ She argued that ‘authorita-
tive interpretations’ of comprehensive human rights treaties as the ECHR, the
ICCPR and the ACHR ‘make clear . . . that these treaties require States Parties
generally to investigate serious violations of physical integrity . . . and to bring to
justice those who are responsible.’⁴²⁸ She explained that ‘prosecution and punish-
ment are the most effective—and therefore only adequate—means of ensuring a
narrow class of rights that merit special protection’.⁴²⁹
Of the bodies interpreting the scope of the obligations of states under the three
Conventions just mentioned, the European Court of Human Rights has been
the most cautious in reading an obligation to prosecute in the ECHR. The Court
has argued that ‘[t]he obligation to protect the right to life under [article 2] read
in conjunction with the State’s general duty under Article 1 of the Convention
to “secure to everyone within their jurisdiction the rights and freedoms defined
in [the] Convention”, requires by implication that there should be some form of
effective official investigation when individuals have been killed as a result of the
use of force by, inter alios, agents of the State.’⁴³⁰ In Assenov and Others v Bulgaria
it went a small step further when it found that ‘where an individual raises an
arguable claim that he has been seriously ill-treated by the police or other such
agents of the State unlawfully and in breach of Article 3, that provision, read
in conjunction with the State’s general duty under Article 1 of the Convention
to ‘secure to everyone within their jurisdiction the rights and freedoms defined
in . . . [the] Convention’, requires by implication that there should be an effective
official investigation. This investigation, as with that under Article 2, should be
capable of leading to the identification and punishment of those responsible . . .
⁴²⁵ ibid 240 and 241, § 24 and 27.

⁴²⁶ Cf also A v United Kingdom (ECHR, 1998) 629–30, § 22.
⁴²⁷ DF Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a
Prior Regime’ (1991) 100 YLJ 2537.
⁴²⁸ ibid 2568.
⁴²⁹ ibid.
⁴³⁰ McCann and Others v United Kingdom Series A–324, 21 EHRR 97 (ECHR, 1995) 163,
§ 161. Cf also Kaya v Turkey (ECHR, 1998) 44, § 86; Yaşa v Turkey 28 EHRR 408 (ECHR, 1998)
447–8, § 98.
If this were not the case, the general legal prohibition of torture and inhuman
and degrading treatment and punishment, despite its fundamental import-
ance . . . would be ineffective in practice and it would be possible in some cases for
agents of the State to abuse the rights of those within their control with virtual
impunity.’ The decision in Kiliç moreover lends support for the argument that a
‘lack of accountability’ renders a criminal law system ineffective for the purposes
of the Convention.⁴³¹
The United Nations Human Rights Committee has interpreted the prohib-
ition of torture under article 7 of the ICCPR to entail the obligation to investigate
complaints about ill-treatment effectively and to hold those found guilty respon-
sible.⁴³² In Muteba v Zaire the Committee held the state to be ‘under an obliga-
tion to . . . conduct an inquiry into the circumstances of the torture, to punish
those found guilty of torture and to take steps to ensure that similar violations do
not occur in the future’.⁴³³ In a similar vein the Inter-American Court of Human
Rights has held that ‘states must prevent, investigate and punish any violation of
the rights recognized by the Convention’.⁴³⁴
It stands to reason that immunity rules are hard to reconcile with both aspects
of the obligation to provide effective protection. Is there effective deterrence to
prevent the violation of fundamental rights by person or entities that know them-
selves outside the reach of the civil and criminal law of the state in which they
operate because of immunity laws?⁴³⁵ This is a very serious question indeed. It
is no secret that diplomatic agents never have a problem finding a parking space.
It is not unthinkable that they also feel less restrained committing crimes of a
more serious nature. In 1965 Schermers already cautioned that immunity from
penal jurisdiction may favour the commission of illegal acts because the threat of
punishment is not felt.⁴³⁶ Notably, this is not necessarily because privileges and
immunities are abused; recklessness may cause serious threats to fundamental
rights as well.
When diplomatic agents are used to carry out terrorist attacks, when states
are allowed to execute arrests or even exploit prison camps within the territory
of another state and—to name an example not within the direct scope of this
⁴³¹ Assenov and Others v Bulgaria (ECHR, 1998) 701, § 102; Kiliç v Turkey (ECHR, 2000)
§ 75.
⁴³² General Comment No 20 in relation to article 7 ICCPR (1992), Report of the Human
Rights Committee, UN Doc A/47/40 (1992), Annex VI (pp 193–5).
⁴³³ Muteba v Zaire, Communication no 124/1982, UN Doc A/39/40 (1984) (HRC).
⁴³⁴ Velásquez Rodríguez Case Series C no 4 (Inter-American Court of Human Rights, 1988)
§ 174. Cf also the following reports of the Inter-American Commission on Human Rights: Report
26/92 (EL Salvador), Report 29/92 (Uruguay) and Report 24/92 (Argentina), reprinted in (1993)
14 Human Rights Law Journal 167; Report 36/96 (Chile) (1996), § 111.
⁴³⁵ The consideration on the normative limit of the rule of state immunity in such situations
applies equally here.
⁴³⁶ HG Schermers, ‘L’immunité devant le droit pénal, en particulier en ce qui concerne les
infraction aux règles de la circulation’ in Le Droit Pénal International, Recueil d’Études en Hommage
à JM van Bemmelen (1965) 174, 181.
study—when international organizations are allowed to engage in potentially
hazardous activities like the exploitation of a nuclear plant, the international
law rules on immunities from jurisdiction may very well be incompatible with
the fundamental rights of individuals.⁴³⁷ In sum, the argument that the right
to effective protection and the law of state immunity are incompatible as far as
serious human rights violations within the jurisdiction of the forum state are con-
cerned is very persuasive. When there is no possibility for civil or penal suit in
respect of acts that violate international human rights law it can be questioned
whether the state provides effective deterrence to the commission of such acts in
its territory.⁴³⁸
3.5 Conclusion
States that grant foreign states and their officials immunity from jurisdiction may
violate their obligations to private individuals under human rights law. The ten-
sion between the right of access to court, the right to a remedy, and the right
to effective protection however should not be overstated. Coherent policy argu-
ments based on the tension between fundamental rights and state immunity
must proceed from a thorough understanding of both bodies of law.
One important conclusion of the examination of the right of access to court
is that—contrary to common belief—states are not free to grant as much state
immunity as they wish.⁴³⁹ In this respect the recent observation of the Japanese
Supreme Court that ‘it is not appropriate to grant immunity from civil suit for
acts jure gestionis’ aptly reflects the influence of the fundamental rights of indi-
viduals.⁴⁴⁰ In addition, the argument that states violate their obligations under
⁴³⁷ In 2004 the Dutch prosecutor was ordered to abandon the criminal proceedings against
the nuclear research basis of EURATOM (European Atomic Energy Community, party of the EU
institutions) in Petten because of the rule of immunity of international organizations. The prosecu-
tor alleged that several environmental rules regarding, inter alia, the storage of hazardous materials
had been violated. The alleged recklessness and flaws in the safety culture are not necessarily the
direct consequence of the immunity rule but it can be questioned whether the absence of effective
deterrence and effective control is compatible with the obligation of the Dutch government to pro-
tect the fundamental rights of its citizens within its territory. Cf eg De Volkskrant, 4 December
2004.
⁴³⁸ The only place where this author has found support for this argument is RA Lawson (1999).
Schermers did allude to this when he argued in 1965 that diplomatic immunity from penal juris-
diction may favour the commission of illegal acts because the threat of punishment is not felt, cf
HG Schermers (1965) 181. RC Slye, ‘The Legitimacy of Amnesties under International Law and
General Principles of Anglo-American Law: Is a Legitimate Amnesty Possible?’ (2002) 43 VJIL
173, 197–201 has argued in a similar vein that amnesties may violate the obligation of states to pro-
tect and ensure the fundamental rights of individuals.
⁴³⁹ Cf for common belief eg CH Schreuer (1988) 6; S Sucharitkul (1982) 253; R Jennings (1988)
9; J Crawford (1983) 78; Report no 24, § 41.
⁴⁴⁰ Japanese courts have started indicating support for the restrictive approach to the rule, see
especially Yamaguchi v United States (S Ct, 2002). Cf also Harbhajan Singh Dhalla v Union of India
(India, 1986) discussed in ch 2 § 2.2.2 of this study.
article 6.1 ECHR because they fail to limit the prejudice caused to the interests of
private individuals by personal immunities is a strong one.
Furthermore, states must realize that they must provide effective deterrence
against the commission of human rights violations within their territorial jur-
isdiction and must ensure an effective remedy to victims of such violations. The
grant of state immunity in respect of human rights violations committed on its
soil may not always be compatible with these obligations.
In general it is arguable that states should limit the number of privileged per-
sons on its territory in accordance with the functionality rationale underlying the
immunities shielding these persons from their jurisdiction—if not, the interests
in favour of immunity are not readily discernable and the forum state may violate
its obligations towards private individuals.
As said, the perspective on immunity rules developed in this section is essen-
tially different from that discussed under section 2 of this chapter. While the
judges of the ICJ can limit their inquiry to the weight accorded by states to the
respective interests as reflected in the scope of the immunity rule, the judges of
the ECHR are asked to engage an independent inquiry into the weight of the
respective interests on the scale. When the immunity rule is not proportional,
national judges are confronted with two conflicting obligations. Accordingly,
when Lord Millett argued in Holland v Lampen-Wolfe that the right of access to
court could not be violated by the rule of state immunity since the foreign state
had a right to that immunity he failed to do justice to the character of the argu-
ment before him.
In the absence of a clash between the obligations under the law of state immun-
ity and the law of human rights law, arguments in favour of the human rights
exception are much less forceful. The debate then focuses on what the rights of
individuals should be rather than what their rights are. On this level of argumen-
tation several courts and scholars have pointed to the possible negative conse-
quences of a human rights exception. It has for example been argued that national
courts risk being flooded with transnational human rights litigation, or that the
political settlement of human rights may be hindered.⁴⁴¹ The central question is
whether states should in time limit the scope of state immunity and diplomatic
immunity to ensure the rights of private individuals. It is noted in this respect
that the ECHR considered in the case of Kalogeropoulou v Greece and Germany
that a development of customary international law to this effect in the future is
not precluded.⁴⁴²
This study is not concerned with this level of the debate. It is only under-
lined that arguments that favour this development should reflect a thorough
⁴⁴¹ Al-Adsani v Government of Kuwait (UK, 1996) 544 (per Stuart-Smith LJ); A Slaughter and
D Bosco (2000) 113; R Garnett, (1997); I Diaz, ‘A Critique of Proposals to Amend the Foreign
Sovereign Immunities Act to Allow Suits Against Foreign Sovereigns for Human Rights Violations’
(2001) 32 University of Miami Inter-American Law Review 137.
⁴⁴² Kalogeropoulou et al v Greece and Germany (ECHR, 2002).
understanding of the nature of the law of state immunity. In particular, argu-
ments that fail to distinguish between voluntary and necessary immunity rules
fail to convince. The common argumentation that the current state immunity
rule favours commercial interests over public interests—‘if contract, why not
tort?’—suffers from this conflation of distinct concepts.⁴⁴³ Also the argument
that ‘in no way can torture rightly be considered a legitimate or protectable
“police”, “law enforcement” or “sovereign” activity’ misconceives the nature of
today’s rule of state immunity.⁴⁴⁴ Scholars that rely on the theory developed by
Lauterpacht in the 1950s to argue in favour of the human rights exception make
a similar mistake.⁴⁴⁵ Both proponents and opponents of the human rights excep-
tion tend to present the issue as one of possible further restriction of the rule of
state immunity continuing the path that started with the commercial activity
exception. The depiction of the human rights exception as just another excep-
tion to state immunity that states may choose to develop through state practice
disregards the qualitative difference between voluntary and necessary immunity
rules. While the restriction of voluntary immunity is indeed a question of weigh-
ing and balancing the various interests, restriction of necessary immunity entails
a more fundamental change of the pillars of the international legal order.⁴⁴⁶
4 Conclusions
This chapter set out to test the coherency of the various arguments in the debate
on the human rights exception in light of the parameters of the rule of state
immunity and international human rights law. In order to do that it was neces-
sary to first structure the debate by classifying types of argument. Human rights
based arguments against the law of state immunity operate on two distinct levels.
Arguments on the first level focus on the right of the respondent state to invoke
the rule of state immunity in proceedings concerning allegations of human rights
⁴⁴³ Cf for the argument HH Koh, ‘Transnational Public Law Litigation’ (1991) 100 YLJ 2347,
2365; WF Pepper (1992) 348; R Wai, ‘The Commercial Activity Exception to Sovereign Immunity
and the Boundaries of Contemporary International Legalism’ in C Scott (ed), Torture as Tort,
Comparative Perspectives on the Development of Transnational Human Rights Litigation (2001) 213,
241.
⁴⁴⁴ Cf eg BS Thornton, ‘International Human Rights in American Courts: The Case of Nelson v.
Saudi Arabia’ (1992) 86 ASIL Proceedings 324, remarks by JJ Paust, 327.
⁴⁴⁵ Cf eg A Bianchi (1997) 420.
⁴⁴⁶ In their Separate Opinion in the Arrest Warrant case Judges Higgins, Kooijmans and
Buergenthal wrote that the meaning of acta jure imperii and acta jure gestionis was ‘not carved in
stone . . . it is subject to a continuously changing interpretation which varies with time reflecting the
changing priorities of society.’ Arrest Warrant Case, Separate Opinion Judges Higgins, Kooijmans,
and Buergenthal, 84–5, § 72. In the opinion of this author this consideration implies more relativ-
ity in the rationale of state immunity than there is. If states agree to a human rights exception to the
rule of state immunity they accept an exception to state immunity for acta jure imperii rather than
limiting the scope of this concept.
violations. These state of the law arguments assert that international human
rights law and the related conceptual changes in the international legal order
have curtailed states’ rights under the law of state immunity. Arguments on the
second level focus on the rights of private individuals and the corresponding obli-
gations of the forum state. These policy arguments set out to establish a clash of
the obligations of the forum state under the law of state immunity and the law
of human rights. They assert the responsibility of the forum state for the viola-
tion of the rights of the individual who is denied a day in court and may provide
an incentive to change the scope of the rights of states under the law of state and
diplomatic immunity.
One important conclusion of the chapter is that both the form and substance
of arguments in favour and against the exception suffer from the underdeveloped
theory on the law of state immunity. The debate on the human rights exception
to state immunity rules bears the deadweight of history. Proponents do not rec-
ognize the rationale of the rule of state immunity. They consider sovereignty to
be a normative concept, related to the archaic protection of kings and princes and
to nineteenth-century absolutist states. The research question is somewhat dema-
gogically restated as a choice ‘between serving the convenience of governments
or pursuing justice for the victims of their crimes’.⁴⁴⁷ In addition, arguments in
favour attribute well-nigh mythical qualities to the concepts of jus cogens norms,
erga omnes obligations, universal jurisdiction, and the rights of individuals under
international law. Proponents fail to acknowledge that their arguments do not fit
the international legal order as it is but rather argue that that order should change.
Opponents, on the other hand, fail to discuss these arguments on the merits,
reasoning in a formalistic vein instead. The absence of state practice supporting
an exception is considered conclusive evidence of the state of the law. Reason
is however an acceptable tool for the determination of the scope of the rule of
state immunity and the trump argument must anyway be discussed on its merits
since it is a conceptual process, unconcerned with state practice. In addition, the
danger of confusion with a state of the law argument looms in the approach of
opponents to the policy arguments in favour of a human rights exception. It is
recalled that in the case of Holland v Lampen-Wolfe Lord Millett argued that the
right of access to court could not be violated by the rule of state immunity since
the foreign state had a right to that immunity.
This chapter has argued that international law immunity rules are not affected
by the developments in international human rights law. There are no coherent
state of the law arguments in favour of a human rights exception. There is how-
ever some tension between the rule of state immunity and diplomatic immun-
ity and the fundamental rights of individuals. The tension between immunity
rules and fundamental rights of individuals is a forceful policy argument for the
reconsideration of certain applications of immunity. The right of access to court
⁴⁴⁷ JF Murphy (1999) 56.

is applicable to national law and voluntary immunity rules, and it may be applic-
able to necessary immunity rules when foreign states are allowed to exercise state
power on the territory of the forum state. In those cases, the immunity rule must
have a legitimate aim and be proportional to that aim in order not to violate the
right of access to court. The community interests protected by the rule must not
be outbalanced by the interests of the individual to have access. If they are, the
forum state is responsible to the individual for a violation of his right of access to
court. As far as diplomatic immunity is concerned it is arguable that the scope
of the rule should not be changed but that it is the forum state rather than the
private individual that should bear the negative consequences of the application
of the rule. There may, moreover, be tension between the right to a remedy and
immunity for violations of human rights by foreign states and their officials on
the territory of the forum state. Finally, the effective deterrence to the commis-
sion of human rights violations required by the right to effective protection may
be at odds with the grant of state immunity and diplomatic immunity in respect
of allegations of violations of human rights committed on the territory of the
forum state.
The room for coherent argument in favour of a reconsideration of the grant of
immunity to foreign states on the basis of international human rights law is nar-
row. It is unfortunate that in the current debate the handful of coherent—and
forceful—arguments are veiled by the radical attack on the rule of state immun-
ity. Simma and Alston wrote that ‘the temptation to adapt or re-interpret the
concept of customary international law in such a way as to ensure that it provides
the “right” answers is strong, and to some, irresistible’.⁴⁴⁸ The attempts by human
rights lawyers to fit a square peg into a round hole has cast a shadow over all
human rights based arguments against state immunity and risks an inflation of
human rights law. Ironically the human rights movement may thus harm rather
than promote the effective protection of the fundamental rights of individuals.
The following words of Fitzmaurice still hold true today:
The truth is that the intellectual distaste, which, as a jurist, we feel for the idea of Utopia,
and many other of the kind, is that it solves too much. It disposes of difficulties not by
dealing with them on their merits, but by creating conditions in which they must auto-
matically disappear—in short be transcended . . . Our task as international jurists is not
to imagine conditions in which the Gordian knot would be cut by the fading out of the
independent nation-State, but to make the international system work in the world of the
nation-State.⁴⁴⁹
⁴⁴⁸ B Simma and P Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and
General Principles’ (1992) 12 Australian Yearbook of International Law 82.
⁴⁴⁹ G Fitzmaurice, ‘The Future of Public International Law and of the International Legal
System in the Circumstances of Today’ in Livre du centenaire de l’Institut de Droit International
1873–1973: Evolution et perspective du droit international (1973) 196, 258.
7
Conclusion
International human rights law and international criminal law have changed the
outlook of the international legal order. Over the past fifty years or so, states
have developed a body of fundamental rights and obligations of individuals that
deserve protection and surveillance on the international level. Many of the norms
protected by international human rights law and international criminal law
form part of what is sometimes called the ‘international public order’. They are
considered fundamental to the existence of the international legal order and are
therefore non-derogable—or jus cogens. It is agreed that the law of state respon-
sibility attaches certain aggravated consequences to serious breaches of peremp-
tory norms. The community interest in the observance of these norms moreover
has consequences for the rules on standing in the law on state responsibility. The
obligations under these norms are owed towards the international community as
a whole—obligations erga omnes—and all states have a legal interest in their pro-
tection. The importance of these norms also has consequences for individual per-
petrators. When certain behaviour qualifies as a crime against international law
individuals incur direct responsibility under international law. The international
community may bring individual perpetrators to justice before international tri-
bunals and national courts can adjudicate these crimes on the basis of universal
jurisdiction.
Since human rights violations often occur under the veil of state author-
ity national courts asked to adjudicate upon the human rights violations
allegedly committed by foreign states and their officials have stumbled upon the
traditional international law rules on jurisdictional immunity. Are the well-
established immunity rules that shield states and their officials from the adjudica-
tive jurisdiction of other states and that are rooted in the classic inter-state system
of international law affected by the relatively recent developments in international
human rights law and international criminal law? This was the question with
which this study commenced. The conclusion of this study—again in an obvi-
ously constraining nutshell—is that the scope of immunity rules should be recon-
sidered in light of the developments over the past fifty years. The rule of functional
immunity does not apply in the face of allegations of crimes against international
law, and the rule of state immunity and the rules on personal immunity may clash
with the fundamental rights of individuals under international law. However, an
Conclusion 419
unqualified attack on all immunity rules harms rather than furthers the cause of
human rights. The discussion on the influence of international human rights law
and international criminal law on the immunities of foreign states and (former)
foreign state officials cannot be conducted on the basis of black and white argu-
ments. A coherent discourse on the topic should reflect the nuances of the nature
and scope of the different immunity rules and should not confuse policy for state
of the law arguments.
In order to adequately deal with the research question it has proven crucial
to first clearly distinguish the three relevant immunity concepts: state immun-
ity, functional immunity and personal immunity. The immunities attaching to
states, to (former) state officials and to specific categories of state officials like dip-
lomatic agents and heads of state all have a different rationale, a different nature
and a different scope.
Chapter 2 of this study took issue with the common view that the restrict-
ive state immunity is a continuation of the absolute immunity rule with certain
exceptions accepted to it through a general and consistent state practice. It was
argued that absolute state immunity has never been a rule of international law.
More importantly, it was argued that there is not only a quantitative but also
a qualitative difference between absolute and restrictive state immunity. The
restrictive rule of state immunity reflects the inherent limit on the essential com-
petence of states that agree to co-exist with other states in an international com-
munity based on the principles of independence and equality. Unlike absolute
state immunity, restrictive state immunity is hence not an immunity from an
otherwise existing jurisdiction in the traditional sense of the word. This finding
also explains why the restrictive immunity rule is a rule of international law in
spite of the substantial lack of uniformity in the way states interpret and apply
that rule. It is not general and consistent state practice that forms the law; it is the
principle of independence and equality of states.
This, it was argued, has consequences for the epistemology of the law. In a
discussion on the scope of the rule of state immunity arguments based on rea-
son and logic are legitimate. It also has consequences for the substance of argu-
ments against the rule. The borderline between absolute and restrictive immunity
reflects the distinction between voluntary and necessary immunity rules. For
one, the connotation of archaic privileges attaches to the immunity on one side of
the line, but not the other.
Chapter 3 examined that functional immunity of (former) foreign state offi-
cials. Such officials are not responsible in their personal capacity for acts they
commit as arm or mouth of the state. Only the state can be held responsible for
these official acts. As long as a state official performs an act in the context of state
authority under international law foreign courts must presume that the act was
committed on behalf of the home state—a presumption that may of course be
defeated by the home state.
Two important points were made in this respect. In the first place, it was
explained that there is an inherent limit on the presumption of authority in the
case where foreign state officials have acted outside the territory of their home
state, since the authority of the home state then depends on the scope of the con-
sent of the forum state. Second, it was argued that the development of the con-
cept of individual responsibility of state officials for crimes against international
law should be understood in terms of an a priori and general defeat of the pre-
sumption of authority. States have agreed on the international level that certain
acts can never be cloaked by state authority. They have developed universally
applicable normative limits on the authority of state officials, just as normative
limits are provided within most national legal systems.
The chapter emphasized that the ‘act of state’ concepts prevalent in the law of
state responsibility and the law of state immunity should not be confused with
the act of state concept that controls the rule of functional immunity. Acts that
clearly exceed the mandate of a state official can be attributed to the state under
the law of state responsibility—also when that mandate can be determined by
the forum state because for example the act was committed on its territory and
in excess of its consent. Also the act of state concept of the rule of state immunity
must be distinguished. It is true that the rule of state immunity may apply to suits
involving foreign state officials. However, this application follows the applicabil-
ity of the rule of functional immunity. Only if a state official bears no personal
responsibility can it be said that a suit against him is an official capacity suit and
hence in fact a suit against the foreign state (this study did however put some
caveats in this respect). The rule of functional immunity is hence the prerequisite
for the application of the rule of state immunity. Whether or not the act is a sov-
ereign act of state is irrelevant for this preliminary question. State officials may be
functionally immune in respect of acts that do not qualify under the law of state
immunity.
Chapter 4 examined the personal immunity of foreign diplomatic agents and
foreign heads of state. In contrast with the rule of state immunity and the rule of
functional immunity, these are immunities from jurisdiction proper. The rules
apply independently from the essential competence of the forum or the individ-
ual responsibility of the defendant. The rules are moreover conspicuous exam-
ples of voluntary customary international law that relies on state practice and
opinio juris for its formation. The ne impediatur legatio rationale only explains the
course of state practice. The chapter primarily focused on some of the controver-
sial issues as to the material and formal scope of these rules. In particular, it was
argued that the immunity of heads of government and ministers of foreign affairs
is less extensive than that of heads of state. These former immunities belong to
the law of diplomatic immunity and only apply whenever these individuals travel
abroad on official business.
The distinction of the three immunity concepts by reference to the notions of
lack of essential competence, absence of personal responsibility, and immunity
Conclusion 421
from jurisdiction allowed a reasoned distinction of the effects of international

human rights law and international criminal law on their scope. The study has
divided the research question in two separate inquiries. In the first place the pre-
sent state of the law was examined. Has the scope of immunity of states and
(former) state officials been affected by the said developments? Subsequently,
it was examined whether the immunities—in as far as unaffected—clash with
international law on the fundamental rights and obligations of individuals. If
such a clash can be identified, a forceful policy argument in favour of changing
the regime regarding the immunities of foreign states and their officials can be for-
mulated. As long as immunity rules do not accommodate clashing human rights
law states are faced with two competing obligations and violate international law
whichever obligation they choose to prioritize. The discussion of these inquiries
was divided in two parts. Chapter 5 analysed the interplay between international
criminal law—the obligations of individuals under international law—and
the immunity of foreign state officials, while chapter 6 analysed the interplay
between international human rights law—the rights of individuals under inter-
national law—and the immunity of states and their officials.
Chapter 5 argued that the principles of individual responsibility for crimes
against international law and irrelevance of official capacity directly affect the
scope of the rule of functional immunity. The acceptance of individual responsi-
bility for crimes against international law defeats the presumption that individu-
als have acted as the state whenever they act within the context of state authority
under international law. Functional immunity ends where individual responsi-
bility begins and crimes against international law hence do not qualify as official
acts (or acts of state) under the rule of functional immunity. Since the principle
defines the scope of the rule of functional immunity rather than that it provides
an exception to that rule it is impossible to distinguish international courts from
national courts for the purpose of its application.
It was, however, stipulated that despite the absence of functional immunity
national courts may lack the competence to deal with certain allegations against
foreign state officials. Judicial scrutiny of the acts of foreign states when that
constitutes a preliminary to decision of a question of private rights and obliga-
tions, which is in itself subject to the competency of the court, can be distinguished
from such scrutiny when that is determinative of the competency of the court. If the
absence of functional immunity depends on the decision of highly controversial
questions of international law regarding the activity or policy of foreign states the
decision on these questions creates the competence of the court. This issue is not
clear-cut and this study has not purported to comprehensively deal with all its
aspects. It was merely proposed that there is a grey area in between the law of state
immunity and the act of state and non-justiciability doctrines. In the absence of
guidance by international law doctrine, courts that are reticent to engage these
questions will frame their decision in terms of immunity law. This is unfortunate
because it veils the fact that the incompetence only applies when the responsibility
of the state official cannot be established in isolation of the larger question of state
responsibility, and then only if that larger question is ‘controversial’.
Personal immunity is subject to fundamentally different considerations. The
principle of irrelevance of official capacity secures the responsibility of the indi-
vidual that commits crimes against international law. It does not however secure
the jurisdiction of the court. In other words, the principle regards the substantive
but not the procedural immunity of state officials. Since state practice nor conven-
tional law provides for a human rights exception to personal immunity rules, and
the jus cogens character of the violated norms does not affect the procedural rule, it
cannot but be concluded that no such exception exists under international law. It
was further argued that there are no obligations under international criminal law
that clash with obligations under personal immunity rules. Consequently, within
the context of the inquiry undertaken in chapter 5 no forceful policy arguments
against the rule could be identified.
The chapter furthermore repudiated the popular proposition that personal
immunities do not prevent the exercise of jurisdiction by international courts.
While states can of course agree to allow an international tribunal to exercise
jurisdiction over its state officials normally protected by personal immunity, they
cannot dispose of the immunity of foreign state officials. Only the UN Security
Council acting on the basis of Chapter VII of the Charter can do so.
Finally, chapter 6 examined the research question from the perspective of
international human rights law. It was concluded in chapter 2 that arguments
based on reason and logic are valid in the discussion on the scope of the law of
state immunity. Consequently, it was argued that the argument that no human
rights exception to state immunity exists since there is no general and consistent
state practice in that regard fails to convince. Human rights-based arguments
require consideration on their merits. Upon a close analysis of the possible argu-
ments this study however came to the conclusion that human rights law has not
affected the scope or the validity of state immunity law.
This does not mean that there is no friction between human rights law and the
law of state immunity or personal immunities. States may have conflicting obli-
gations under the two bodies of law. This study examined whether the right to a
fair trial, the right to a remedy and the right to effective protection are compatible
with state immunity and personal immunity. It concluded that voluntary immun-
ity rules, and even more so immunity rules of a national law character, may not
always be compatible with the fundamental rights of individuals. In addition a
state may violate its obligations towards its citizens if it consents to the exercise of
state authority by a foreign state on its territory without safeguarding private indi-
viduals from the prejudice caused by the immunity that is attached to the exercise
of such authority. The clash of obligations provides a forceful policy argument in
favour of the reconsideration of certain applications of immunity rules.
In the course of this study many instances of national jurisprudence—
cases like Pinochet, Jones, Leivadia, Ferrini, and Siderman—of international
Conclusion 423
jurisprudence—cases like Al-Adsani, McElhinney, Fogarty, Arrest Warrant, and

Taylor—of national legislation—like the US-state sponsored terrorism excep-
tion in the FSIA and the Belgian war crimes legislation—and of international
documents—like the ICC Statute and the Resolution on head of state immunity
of the Institut de Droit International—were examined and critically discussed.
This conclusion will not repeat the detailed analyses and conclusions that were
advanced in their regard. Only the three cases that were introduced in chapter 1
of this study as ‘the central pieces of the décor in which our examination takes
place’ warrant a final word.
At the outset this author would like to put the achievements of the three emi-
nent courts that have decided these cases beyond question. The decisions have
sparked new initiatives of human rights defenders by revealing the possibilities
and the limits of transnational justice, and the argumentation and the cutting
insights of the judges have inspired the minds of countless scholars around the
world. The critique developed in this study should at all times be understood to
stem from this inspiration.
Both the Pinochet case and the Arrest Warrant case pivoted on the question
of whether immunity is available in proceedings concerning allegations of
crimes against international law. The principal question in the Pinochet case
was whether the rule of functional immunity protects a former head of state
from foreign criminal jurisdiction in respect of allegations of torture. Th is
study concurred with the outcome of the Pinochet case but begged to disagree
with the terms on which the decision is premised. In chapter 5 we saw that the six
individual opinions of the majority differ substantially as to the reasons for the
denial of immunity. In an inevitable generalization it can be said that the Lords
approached the functional immunity of Pinochet as the state immunity ratione
materiae of Chile and that the refusal of immunity was largely based on the spe-
cific terms of the 1984 Torture Convention. Th is study argued that Pinochet
did not enjoy functional immunity since he could be sued in his personal cap-
acity for the allegations of crimes against international law. Such crimes are not
official acts for functional immunity purposes for which only the state incurs
responsibility.
In the Arrest Warrant case the ICJ was asked to decide whether the issuance
and international circulation of an arrest warrant for an incumbent minister of
foreign affairs violates the personal immunity of that minister. This study agrees
with the position of the Court that an exception to personal immunities rules
needs support in state practice. Nevertheless, this study concluded differently on
the proper outcome of the case. The principal reason was that it did not agree with
the Court’s approach to the formulation of the scope of the immunity rule applic-
able to ministers of foreign affairs. Ministers of foreign affairs are only protected
from foreign criminal jurisdiction when they are abroad on official visits and the
disputed arrest warrant made an explicit exception for that situation. It must be
questioned moreover whether the international circulation of an arrest warrant
constitutes an independent violation of the immunity rule if third states are not
obliged to give effect to that warrant.
In the Al-Adsani case the European Court of Human Rights was asked to
approach the relation between immunity and human rights from the essentially
distinct perspective of policy arguments. A complaint under the Convention is
in principle unconcerned with the question of whether immunity is available.
Rather, it is argued that the grant of immunity violates the obligations of the
forum state under the European Convention on Human Rights. In this case,
the applicant had argued that the grant of state immunity had violated his right
of access to court under article 6.1 of the Convention. It was only because of
the Court’s approach to this principal question that the question as to the influ-
ence of human rights law on the state of immunity law became relevant. The
Court argued that immunity rules that have the character of international law
do not violate article 6 because they always have a legitimate aim and are always
proportional to that aim. Accordingly, the state of the law became the decisive
point. This study has criticized the decision of the Court on both accounts—
even though it agrees with the Court on the outcome of the case.
The applicant argued that the particular application of the rule of state
immunity was not required by international law. The foreign state concerned
had been accused of violations of jus cogens norms and the applicant argued that
these norms trumped the rule of state immunity. Eight of the seventeen judges
embraced the normative hierarchy argument and concluded that article 6.1 had
indeed been violated. The majority disagreed. It argued that the thesis of the
applicant was not supported by state practice. Since international law did indeed
require national courts to grant foreign states state immunity in respect of alle-
gations of jus cogens violations, the Court concluded that article 6.1 had not been
violated.
This study does not accept the reasoning of the Court as to the state of the law.
The hierarchy of norms argument relies on a conceptual process independent of
developments in state practice. More in general, the discussion as to the state of
immunity law allows arguments based on reason and logic without lapsing into
natural law reasoning. A convincing rebuttal of arguments against state immun-
ity based on international human rights law and related changes in the inter-
national legal order require discussion on their merits.
More fundamental, however, is the criticism as to the principal question put to
the Court. This study argued that the rule of state immunity in respect of allega-
tions of human rights violations committed within the territory of the defendant
state does not raise an issue under the Convention. However, if an immunity rule
does raise an issue under the Convention—as all voluntary immunity rules and
national law immunity rules do—only a proper balancing of the various interests
involved can determine the compatibility of the immunity rule with the right of
access to court. The reasoning of the Court makes a mockery of the compliance
criteria for restrictions on the right of access to court. Human rights have an
Conclusion 425
autonomous meaning that fits the concept of inherent limitations—to which the
approach of the Court can be said to boil down—very uncomfortably.
In the years to come the question as to the relation between international
human rights law, international criminal law, and immunity rules will undoubt-
edly be debated within national and international court buildings. Today the
questions dealt with in this study have engaged the minds of only a handful
of national judges around the world. With the increasing interest in the appli-
cation of international criminal law at the national level, and the rise in trans-
boundary human rights litigation it is however to be expected that more and
more judges will have to inquire into the effect of international human rights law
or international criminal law on immunity rules. To ensure the coherence and
the consistency of the application of international law by national authorities the
guidance of international courts is most welcome.¹
A couple of distinctions should be kept in mind when looking to international
courts for guidance. In the first place, the three immunity concepts that were
examined in this study require separate discussion. Second, it must be realized
that courts may approach our research question from two essentially distinct
perspectives—that of state of the law and policy arguments.
Let us first consider the scope of the rule of state immunity. In 1999 the Working
Group of the International Law Commission on Jurisdictional Immunities of
States and their Property noted that the state-sponsored terrorism exception in
the US FSIA and the decision of the House of Lords in the Pinochet case were ‘a
recent development relating to immunity which should not be ignored’.² In 2001
the European Court of Human Rights concluded that there is no ‘firm basis’ in
state practice ‘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’.³ Greek and Italian courts have allowed the exercise of jur-
isdiction over claims against foreign states that concern their acta jure imperii
when these acts violate jus cogens in 2000 and 2004 respectively.
The European Court of Human Rights is the only international court that
has until now engaged this particular aspect of our research question. However,
in proceedings before that Court the question as to the nature and scope of the
rule of state immunity plays only an auxiliary role. A thorough inquiry into the
¹ In addition, completion of codification initiatives of international bodies like the International

Law Commission—that decided in 2006 to include the topic of ‘Immunity of State officials from
foreign criminal jurisdiction’ in its long-term programme of work, ILC Report on the work of the
fifty-eighth session (2006), A/61/10, p 425, § 257 and Annex A, Immunity of State officials from
foreign criminal jurisdiction, p 436–54—and the Institut de Droit International—that in 1995
created the Third Commission to work on the topic of ‘The Fundamental Rights of the Person and
the Immunity from Jurisdiction in International Law’—will undoubtedly also further these goals.
² International Law Commission, Report of the Working Group on Jurisdiction Immunities
of States and their Property (1999), Appendix, Annex to the Report of the ILC on the work of its
fifty-first session.
³ Al-Adsani v United Kingdom (ECHR, 2001) 290, § 61; 123 ILR 24.
law of state immunity and an authoritative statement on the relation between
human rights law and state immunity of the International Court of Justice is
hence called for. The states that have recently disagreed on the interpretation of
the rule of state immunity—Germany, Greece, and Italy—could have asked the
ICJ to engage the question. Even though not all have accepted the jurisdiction of
the ICJ under the optional protocol, they could have consented to the exercise of
jurisdiction, just like France has done in Certain Criminal Proceedings in France
(Republic of the Congo v France).⁴
At this point, this author wishes to underline that while this study has not
argued in favour of a restriction of state immunity rules on the basis of the jus
cogens nature of certain human rights norms, this is not to say that a serious effort
of the international community to ensure that individuals have a remedy in
respect of violations of such norms is not called for. Efforts to strengthen exist-
ing international mechanisms—like the UN Human Rights Committee—or
to expand the use of institutions like the UN Compensation Commission, that
processes claims of individuals who suffered damage as a consequence of Iraq’s
invasion and occupation of Kuwait, would be most welcome.
As far as the interpretation of the scope of the rules of functional and personal
immunity are concerned, further guidance of the ICJ may in fact not be too far
away. A case that pivots on the relation between the immunity of state officials and
international criminal law, is at the time of writing of this study, pending before
the Court. With Certain Criminal Proceedings in France (Republic of the Congo v
France) the Court has an opportunity to clarify several questions that were raised
by its not always unambiguous reasoning in the Arrest Warrant case. In particu-
lar, it will have to engage the question of functional immunity and international
criminal law. This question allows it to shed some light on what it meant exactly
with the public—private capacity distinction that has stirred academic debate so
much. It is furthermore to be hoped that it will, in an obiter consideration, clarify
the question of personal immunity rules before international courts.
Finally, it must be admitted that the guidance of the European Court of
Human Rights, on the essentially distinct question of whether fundamental
rights of individuals may clash with immunity rules in the 2001 Al-Adsani case,
was unambiguous. The question is therefore not whether the Court will clarify
its standpoint in the years to come, but rather whether it will be willing to recon-
sider it. This study has suggested that the position of the dissenting judges in
the Al-Adsani case is not the only possible alternative. The recognition that the
undertakings of states under international human rights law may warrant recon-
sideration of some—but not all—applications of immunity rules is in the view of
this author urgently called for.
⁴ When the 2004 UN Convention on Jurisdictional Immunities of States and their Property
comes into force, disputes between state parties concerning the application of the Convention may
eventually be brought before the ICJ (article 27.2).
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Index
A Essential competence, definition 84

Absolute state immunity, see State immunity European Convention on Human Rights
Access to court 308–309; 319; 361–362; Right to a fair trial 366–408
366–407 Right to a remedy 408–410
Act of state 80–83; 105; 147–155 Right to effective protection 410–413
Acta jure imperii—Acta jure gestionis Exhaustion of local remedies rule 357–358
Lex fori 57–59; 65
Nature—purpose of the act 53–56 F
Rationale of the distinction 56–57; Foreign Sovereign Immunities Act, see United
65–80 States
Aggression 257 Functional immunity
Alien Tort Claims Act, see United States Crimes against international law 132;
Antiterrorism and Effective Death Penalty 222–265
Act, see United States Official act—Private act distinction
Armed conflict 72–73; 75–78; 338 Official act as act committed as the
Aut dedere aut judicare 214; 294 state 106–116; 239–248; 253–257
Official act as sovereign act 147–156;
B 223–239
Belgium Official act as act attributable to the
Restrictive immunity 14 state 144–147; 223–239; 245–248
War crimes legislation 269–273 Territorial acts 116–130
Relation to personal immunity 161–162
C Relation to state immunity 135–139
Caroline Case (see McLeod Case) Relation to state responsibility 144–147;
Consular immunity 116–122 223–239; 245–248
Countermeasures 343–345 Waiver 131–132; 134–135
Crimes against humanity 140–141; 257
Customary international law 89–98 G
Genocide 257
D Genocide Convention 214; 233; 293; 298
Diplomatic immunity Greece
Ad hoc diplomatic missions 167–168 State immunity and human rights
Civil proceedings 163–164 329–331
Crimes against international law 265–274
Criminal proceedings 163 H
Duration 164–167 Head of state immunity
Obligation to prosecute 293–295 Antiterrorism and Effective Death
Rationale 160–161 Penalty Act 273–274
Relation to functional immunity 161–162 Civil proceedings 169–178
Waiver 164 Crimes against international law
Domestic jurisdiction 326–327; 331–332; 265–274
334–339 Criminal proceedings 169
Draft Articles on Jurisdictional Immunities Family members 184–186
of States and their Property, see Former heads of state 183–184
International Law Commission International courts 205–206; 275–293
Heads of government and Ministers
E 186–195
Erga omnes obligations 307–308; 347; Obligation to prosecute 294–295
349–354 Private acts 24–26; 169–171
Espionage 128; 204 Rationale 178–181
448 Index
Head of state immunity (cont.) M
Resolution Institut de Droit McLeod Case 108–110; 127; 203–204
International, see Institut de Droit Ministers, immunity of 186–195
International—2001 Resolution
Suggestions of immunity 173–176 N
Waiver 181–182 Non-justiciability 257–259; 261
Heads of government, immunity of Normative hierarchy theory 219–222;
186–195 316–320
Human rights Nuremberg Charter 201; 207; 208; 209; 218;
Access to court 319; 361–362; 366–407 240
Immunity and human rights
conventions 359–362 O
Implied waiver 328–329; 360–362 Obligation to prosecute 214–215; 220–221;
Right to a fair trial 366–408 294–295; 410–413
Right to a remedy 340–342; 360–362; Official acts, see Functional immunity
408–410 Outlaw states 354–355
Right to effective protection 410–413
Sovereignty (Acta jure imperii—acta jure P
gestionis) 326–339 Par in parem non habet imperium 11; 48; 50;
73; 74
I Peremptory norms, see Jus cogens
Implied waiver 50–51; 52–53; 328–329; Personal immunities, see Diplomatic
360–362 immunity; Head of state immunity
Individual responsibility 201–210; 240–248; Personal injuries, see Territorial tort exception
265–266 Personal sovereign, see Head of state
Institut de Droit International—2001 immunity
Resolution 178; 183–184; 186–187; Policy arguments, definition 5–6; 219;
193–194 365–366
International courts, immunity from Private acts, see Functional immunity
jurisdiction of 264–265; 275–293
International crimes, see Crimes against R
international law Restrictive state immunity, see State
International crimes of states 345–347 Immunity
International Criminal Court 216; 264–265; Right to a fair trial 439–484
266; 278–283; 292; 293 Right to a remedy 410–412; 433–435;
International Criminal Tribunal for the 485–486
Former Yugoslavia 216; 221–222; Right to effective protection 487–490
262; 277–278; 280; 283 Rogue states, see Antiterrorism and Effective
International Criminal Tribunal for Death Penalty Act; Outlaw states
Rwanda 216; 221–222; 262;
277–278; 280 S
International dispute settlement rule 73–74; Special Court for Sierra Leone 283–292
358–359 State of the law arguments, definition 5
International Law Commission Draft Articles State immunity (see also Acta jure imperii—
on Jurisdictional Immunities of States Acta jure gestionis)
and their Property Absolute state immunity 20; 46; 49–50
Human rights exception 3; 91 United Kingdom 21–35
Territorial tort exception 68–69; 78 United States 35–46
Italy Double capacity theory 50; 51–52
Restrictive state immunity 14–15 Equality of states (par in parem) 48–50;
State immunity and human rights 73–79
342–343 Essential competence 65; 83–88
Implied waiver 50–51; 52–53; 328–329;
J 360–362
Jus cogens 219–221; 304–306; 316–320; Independence of states 49; 66–73
326–339; 342–343; 347–349; Individuals (see also Functional
353–359 immunity) 81–83; 135–139
Index 449
Internal 34–35; 41–46 Terrorist state exception, see Antiterrorism and
Negative list 60–62; 98 Effective Death Penalty Act
Personal injuries, see Territorial tort Torture Convention 214–215; 226–237; 246;
exception 294
Relation to personal sovereign 34; 41–42; Torture Victim Protection Act, see United
45–46 States
Restrictive state immunity
Belgium 14 U
Egypt 15 United Kingdom
Explanation rise of 16–17; 47–48 Absolute state immunity 21–35
Italy 14–15 State Immunity Act 40
Overview of development 14–21 United Nations Convention on Jurisdictional
United Kingdom 21–35 Immunities of States and their
United States 35–46 Property 3; 19; 60; 68–69; 70; 78;
Stare decicis 39; 40; 46 177
Suggestions of immunity 29–30; 32; United States
33–34 Absolute state immunity 35–46
Territorial tort exception 59; 68–73; 77–78 Alien Tort Claims Act 217; 248–253;
Waiver 87–88 310–311
State Immunity Act, see United Kingdom Antiterrorism and Effective Death Penalty
State officials, see Consular immunity; Act 251–253; 273–274; 314–315;
Diplomatic immunity; Functional 354–357
Immunity; Head of state immunity; Foreign Sovereign Immunities Act 102
Ministers, immunity of; State Torture Victim Protection Act 217
immunity—Individuals Universal jurisdiction 210–218
Suggestions of immunity 29–30; 32; 33–34; Aut dedere aut judicare 214–215; 294; 295
173–176 Conventions 214–215; 294–295
In absentia 212–214
T Unlawful belligerency 127–128; 202–204
Tate letter 32
Territorial tort exception 59; 68–73; 77–78; V
310–311 Versailles Treaty 205–206; 266
Relation to acta jure gestionis—acta jure
imperii distinction 59; 68–71 W
Armed conflict 72–73 Waiver 87–88; 131–132; 134–135; 164;
Discretionary functions 69–71 181–182; 360–362
Human rights violations 310–311 War, see Armed conflict

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OX FOR D MONOGR A PHS I N

The Immunity of States and Their

      

3. Functional Immunity 103

4. Personal Immunity 158

5. The Immunity of State Oﬃcials in the Light of Obligations

6. The Immunity of States and Their Oﬃcials in the Light of the

SALJ South African Law Journal

European Commission of Human Rights

European Court of Human Rights

Inter-American Commission on Human Rights

Inter-American Court of Human Rights

International Court of Justice

International Criminal Tribunal for the Former Yugoslavia

International Military Tribunal

International Military Tribunal for the Far East

Permanent Court of International Justice

Special Court for Sierra Leone

United Nations Human Rights Committee

United Nations Secretary-General

Angelo-Poulos v Ferton Sirey 1809–1811, 2, 514 (Cour de Paris, 1811) . . . . . . . . . . . . . . . . . . 108

Federal Republic of Germany

Judgment no 6/2002, Special Supreme Court, discussed in M Panezi, ‘Sovereign

¹⁸ H Lauterpacht, ‘The Problem of Jurisdictional Immunities of Foreign States’ (1951) 28 BYIL

¹⁹ The notion ‘absence of essential competence’ is borrowed from Brownlie, cf ch 2 § 3.3.1

The restatement of the rules in terms of lack of essential competence, absence

²¹ Prosecutor v Charles Ghankay Taylor SCSL–2003–01–I Appeals Chamber Decision on

Academic writing on the law of state immunity is profuse. So why is another

¹ Holmes J in NY Trust Co v Eisner 256 US 345 (US, S Ct, 1921) 349.

2 The Rule of Restrictive State Immunity

² The Schooner Exchange v M’Faddon 11 US 116 (US, S Ct, 1812).

2.2 Development of the Rule of Restrictive State Immunity

⁷ Cf for Belgium, L’Etat du Pérou v Kreglinger PB 1857–2–348 (Tribunal de commerce d’Anvers

Lauterpacht, in his seminal critique of the absolute doctrine of immunity, attached

¹¹ H Lauterpacht (1951) 255.

2.2.2 Prevalence of the Restrictive Doctrine

¹⁸ Dralle v Republic of Czechoslovakia 17 ILR 155 (Austria, S Ct, 1950) 161.

²⁴ Pakistan, State Immunity Ordinance 1981, reproduced in UN–Materials ST/LEG/

⁴⁴ International Law Commission, ILC Draft Articles on Jurisdictional Immunities of States

2.2.3 A Closer Look at Early Absolute Tendencies

2.2.3.1 The United States

⁴⁹ See eg I Pingel-Lenuzza (1997) 135; M Byers, ‘Al-Adsani v. Government of Kuwait and

Several commentators have disregarded this diﬀerence. A brief excursion into

Coming back to our discussion of The Schooner Exchange v M’Faddon it is

⁷¹ Berizzi Bros v SS Pesaro (US, 1926) 570.

In anticipation of the discussion of the early UK jurisprudence below, it is

⁸⁶ H Lauterpacht (1951) 269.

⁹⁹ Spacil v Crowe (US, 1974) 620–1.

2.2.3.2 The United Kingdom

¹²⁰ The Cristina (1938) 60 LR 147 (UK, HL, 1938).

¹²⁸ ibid 461.

In Thai-Europe Denning argued that an exception to state immunity must be

¹⁴¹ Trendtex Trading Corporation v Central Bank of Nigeria (UK, 1976).

¹⁴⁷ Quoted in C J Lewis (1990) 24.

¹⁶⁷ M Cosnard (1996) 73.

¹⁷⁰ H Lauterpacht (1951) 221.

2.3 A Poorly Articulated Theory

¹⁸⁴ The Cristina (UK, 1938) 162.

2.3.2 Regime over Rationales

¹⁹⁶ CH Schreuer (1988) 15.