State immunity and Head of State immunity

In 1648, with the inception of the nation state, every nation state was gifted with
the power of immunity.
Immunity is a concept that has developed against the background of sovereignty as
sovereign equality relates to the non-interference of a state in matters which arise
in another state.
Latin maxim neatly summarizes the justification for sovereign immunity. It states
’par in parem non habet imperium’ which means ‘one equal cannot exercise
authority over another’.
This was cemented after the introduction of the League of the Nation and with the
collapse of the League of Nations it was further crystalized in the introduction of
the UN Charter where it was specifically identified that every state in the
international arena is considered equal.
The definition of sovereign immunity refers to the legal rules and principles that
determine the conditions under which a foreign state can claim freedom from
another state's jurisdiction.
Pinochet No. 03 of 2000, by Brownie Wilkinson, established that no sovereign
state should judge another's conduct, thus granting the latter state immunity from
both civil and criminal jurisdiction.
State immunity is an undisputed principle in customary international law, based on
sovereignty principles applicable in common law, civil law, and judicial systems.
Until the mid-20th century, sovereign immunity from foreign court jurisdiction
was almost absolute, particularly in the UK, according to Gordon 1977.
The US Supreme Court's decision in Schooner Exchange v McFadden exemplifies
the principle of immunity, stating that a friendly power, such as France, entered
American territory under the implied promise of exempting the US from
jurisdiction and enjoying sovereign immunity, demonstrating the principle's
rationale and application in international relations.
Conduct within international organizations
UN resolutions
 Legality of the Threat or Use of Nuclear Weapons Case (1996)
The Legality of the Threat or Use of Nuclear Weapons Case (1996), also known as
the Nuclear Weapons Advisory Opinion, was a landmark decision by the
International Court of Justice (ICJ). Here's a summary:
Background:
The World Health Organization (WHO) requested an advisory opinion from the
ICJ on the legality of the threat or use of nuclear weapons. 54 states submitted
written statements and 22 participated in oral proceedings.
Key Findings:
No specific prohibition: The Court found no specific treaty or customary
international law provision explicitly prohibiting the use of nuclear weapons.
Generally illegal: However, the Court concluded that the threat or use of nuclear
weapons would generally be contrary to the rules of international law, including:
The UN Charter's prohibition on the use of force: Nuclear weapons have
indiscriminate effects and could violate the principles of proportionality and
necessity.
International humanitarian law: Nuclear weapons cause widespread suffering and
long-term harm, raising concerns about indiscriminate attacks and attacks on
civilians.
Possible exception: The Court left open the possibility that the use of nuclear
weapons might be lawful in extreme circumstances of self-defense where the very
survival of a state is at stake. However, it emphasized that this exception is highly
controversial and narrow.
Obligation to pursue disarmament: The Court concluded that all states have a
general obligation to pursue negotiations in good faith leading to nuclear
disarmament.
Impact:
The Advisory Opinion is not legally binding but carries significant weight as the
opinion of the World Court.
It has been invoked by states and advocates in arguments for nuclear disarmament
and non-proliferation.
However, some nuclear-armed states disagree with the Court's conclusions and
continue to maintain the legality of nuclear weapons under specific circumstances.
Additional points:
The Court's opinion was not unanimous, with several judges issuing dissenting or
separate opinions.
The debate on the legality of nuclear weapons continues, with ongoing discussions
and negotiations on nuclear disarmament.

 Western Sahara Case (1975)

The Western Sahara Case of 1975 involved an Advisory Opinion, not a judgment,
issued by the International Court of Justice (ICJ) in response to a request from the
UN General Assembly. Here's a breakdown:
Background:
Spain had colonized Western Sahara (then Spanish Sahara) but faced pressure to
decolonize. Morocco and Mauritania claimed historical ties to the territory. UN
resolution 3292 requested the ICJ's opinion on the legal status of Western Sahara
and potential ties to Morocco and Mauritania.
Questions:
Were there legal ties of sovereignty between the territory of Western Sahara and
the Kingdom of Morocco or the Mauritanian entity?
What were the legal ties between the territory of Western Sahara and the
populations living there at the time of Spanish colonization?
Court's Findings:
Question 1: The Court found no legal ties of sovereignty between Western Sahara
and either Morocco or Mauritania. Historical ties and allegiance claims did not
translate to sovereignty.
Question 2: The Court recognized legal ties of allegiance between some Sahrawi
tribes and the Sultan of Morocco, and rights relating to the land between the
territory and the Mauritanian entity. However, these didn't establish territorial
sovereignty either.
Impact:
The Advisory Opinion was non-binding, but it strengthened the argument for self-
determination for the Sahrawi people.
Morocco and Mauritania ignored the opinion, dividing the territory between them
in 1975.
This triggered the Western Sahara War between the Polisario Front (representing
the Sahrawi people) and Morocco and Mauritania.
The war ended in 1991 with a ceasefire, but the conflict remains unresolved. The
UN-mediated ceasefire agreement includes a referendum on self-determination, but
its implementation remains disputed.
Current Situation:
Morocco controls most of Western Sahara, claiming it as part of its territory.
The Polisario Front maintains a government-in-exile and controls a small portion
of the territory.
The UN continues efforts to find a solution based on self-determination.
Additional Points:
The Case is significant in highlighting the principle of self-determination in
decolonization processes.
It continues to influence legal arguments regarding disputed territories and
indigenous rights.
The unresolved conflict in Western Sahara presents ongoing challenges for
regional stability and human rights.

 The East Timor Case (1995)

The East Timor Case (1995), officially known as East Timor (Portugal v.
Australia), involved a dispute between Portugal and Australia regarding the
exploitation of natural resources in the Timor Gap, an area near East Timor (then
occupied by Indonesia). Here's a summary:
Background:
Portugal was the recognized administering power of East Timor by the UN until
1975.
Indonesia invaded and occupied East Timor in 1975, leading to a long conflict and
human rights abuses.
Australia signed a treaty with Indonesia in 1989 to share revenue from oil and gas
resources in the Timor Gap.
Portugal argued this treaty violated East Timor's right to self-determination and
Portugal's rights as administering power.
Question for the Court:
Did Australia have the right to conclude the treaty with Indonesia regarding the
Timor Gap, considering it might affect East Timor's natural resources and self-
determination rights?
Court's Decision:
The Court declined to rule on the case, finding it lacked jurisdiction.
While Portugal and Australia had accepted its compulsory jurisdiction, Indonesia
hadn't, and the issue directly involved its actions.
This decision prevented a ruling on the legality of the treaty or Australia's actions.
Impact:
The case raised awareness of the ongoing conflict in East Timor and the resource
exploitation concerns.
It didn't resolve the legal issues but contributed to discussions and eventual
negotiations.
East Timor gained independence in 1999, and subsequent treaties resolved
resource-sharing with Australia.
Additional Points:
The case highlighted the complexities of resource exploitation in disputed
territories and the challenges of achieving justice in such situations.
It demonstrated the limitations of the ICJ's jurisdiction in addressing sensitive
political and military conflicts.
The East Timor situation continues to raise issues of accountability for past human
rights abuses and equitable resource management.

 The Parlement Belge was a Belgian vessel which carried mail and
passengers between Ostend and Dover. Through incompetence and
negligence by her crew she collided with the British sea tug daring, whose
owners sought to recover damages. It was argued in defence that the
Parlement Belge was the property of the King of the Belgians and was
therefore immune from such an action.
 However as governments and state enterprises became more and more active
in commercial activities in the modern era, private entities interacting with
foreign states attacked complete sovereign immunity as fundamentally
unfair in eliminating judicial recourse and favoring state companies.
 Thus some states moved towards a position of accepting only a restricted
doctrine of immunity.
 By providing state immunity for only a limited class of acts. (Qualified
immunity)
1. Jure imperii- acts in and of public authority for which there would still be
immunity
2. Jure gestionis- acts which are commercial or private where immunity would
not apply.
UK started through judicial decisions only in the 1970’s leading to the State
Immunity Act 1978.
The cases that led to this event in the UK include the case of The Philippine
Admiral [1977] in which the privy council determined that a ship that had been
operated throughout its life as an ordinary merchant, earning freight by carrying
cargo was beyond sovereign immunity.
Trendtex Trading Corp v Central Bank of Nigeria [1977]- Nigeria suffered a
significant and destructive scandal concerning the importation of cement. Court of
Appeal held that the Central Bank of Nigeria was a separate entity from the
Government of Nigeria and thus was not entitled to immunity.
Head of State Immunity
This rule was founded in Customary International Law.
In Mighell v Suitan of Jahore 1948, the court ruled that the Sultan of Jahore is
immune from certain private acts unless he has abdicated or been deposed.
The principle of Ratione personae states that state heads, based on the International
Criminal Law (ICCL), have absolute immunity from the jurisdiction of other state
courts.
Immunity ratione materiae- This means former heads of state is entitled to
functional immunity from, the exercise of criminal jurisdiction by courts of other
states in certain instances.
Former heads of state may have ongoing immunity for certain acts during their
tenure, but if international law permits prosecution, it could compromise state
sovereignty and negatively impact their ability to govern.
Functional immunity protects former heads of state for the legitimate state
functions they performed during their term of office.

 Key case: Pinochet case No 3 of 2000 (immunity of former head of state)

Facts- General Pinochet led a violent right wing military coup in Chile in 1973.
The elected President, Allende was removed from office and killed and General
Pinochet became Head of State of Chile until he resigned in 1990. In 1998 while
on a private visit to the UK he was arrested after a Spanish request for his
extradition to Spain to face a wide range of alleged crimes including torture and
conspiracy to torture.
Legal issue- The UK courts had to decide whether Pinochet had immunity from
prosecution as a matter of international law. As Pinochet was a former Head of
State he was not entitled to personal immunity from prosecution. The key question
was whether he enjoyed functional immunity (ratione materiae) in relation to the
alleged offences.
Held by House of Lords: The HL decided that torture could not be classified as a
legitimate State function. Accordingly Pinochet was not protected by functional
immunity and he was liable to extradition.
 Arrest Warrant Case (2002) - Congo’s Foreign Minister was entitled to
immunity ratione personae (complete personal immunity) from the criminal
jurisdiction of another state because he was a serving minister at the time the
arrest warrant was issued.