Chapter 6 Guidance on Answering the Questions in the Book

Question 1:
How would you justify state immunity?

Guidance:
The question asks the student to consider the origin of the principle for state immunity. From where is state immunity derived? The book notes that state immunity as such derives from the sovereign equality of states and the notion that State A cannot force State B to submit itself to its national courts. The book also notes that state representatives can be said to “personify” the state on whose behalf they act. There are also strong functional considerations that support immunity for certain state representatives. In Arrest Warrant, the ICJ noted, for example, that a foreign minister cannot perform his or her official functions unless the individual can travel freely and remain in constant communication with not only the home government but also with diplomatic missions and representatives of other states.

Question 2:
Can you identify some of the tensions that respect for state immunity creates in relation to other considerations in international law?

Guidance:
It is one of the main arguments of the book that there is often a tension between notions of “justice” and stability and order in international law (see also Question 6 in Chapter 1) and the question forces students to consider the tension with regard to state immunity. At the outset it is worth noting that state immunity from adjudication means that a state cannot be sued before the courts of a foreign state unless it consents. This obviously means that an individual with a valid claim against the foreign state may be left without any legal means of enforcing his or her rights. Aside from this, the book notes that there may be a particularly clear tension between immunity and the civil and/ or criminal claims relating to international crimes. With regard to state immunity for civil claims, a reference could be made to the ICJ’s 2012 judgment in the Jurisdictional Immunities case. As for immunity for state representatives for international crimes, the book notes that the law does not appear to be clear and that it is the topic of debate if exceptions to immunity can be made (see also Question 5).

Question 3:
Why has it proven to be difficult to introduce a workable definition of, respectively, a sovereign (jure imperii) and a commercial (jure gestionis) act?

Guidance:
The question concerns the distinction between sovereign (immune) acts and commercial (non-immune) acts with regard to state immunity for civil claims. The purpose of the distinction is to ensure that a state is only granted immunity in those instances when it can be said to act as “a state” and not when it engages in commercial activities. Historically, it has been hard for legislators and national courts to introduce a suitable definition of what a sovereign and a commercial act are. The book notes that the classic method is to apply a “private individual test” and inquire if an activity can be performed by a private individual or not. If the answer is yes, the activity is commercial and not immune. The problem is, however, that it is hard to come up with a test that captures the essence of a sovereign or commercial act. Thus, both a “purpose” and a “nature” test have proven to be insufficient. Recently, a more nuanced and contextual approach has been introduced. As the book notes, this approach seeks to take account of both the purpose and the nature of the activity.

Question 4:
In the Arrest Warrant case, the ICJ stated that immunity from criminal jurisdiction for a foreign minister is not the same as impunity. What did the Court mean by that?

Guidance:
The question asks the students to consider the differences between immunity and impunity. The point here is that the grant of immunity for a state representative does not necessarily mean that the representative cannot be prosecuted for his or her acts. In Arrest Warrant (see § 61), the Court noted that criminal prosecution of a minister for foreign affairs may take place before the courts in the minister’s “home state”; in the forum state if the “home state” expressly waives immunity; before an international court that has jurisdiction; and after the end of the term for acts committed either prior or subsequent to the period of office or for private acts committed during the time in office. As for the debate about the extent of state immunity for state representatives for official acts committed during the time in office, see Question 5.

Question 5:
How would you justify limiting immunity ratione materiaein relation to international crimes?

Guidance:
The question engages with the hotly debated topic of immunity for state representatives for international crimes. As the book notes, the discussion erupted after the 1999 Pinochet case in the UK House of Lords where a majority of the judges did not find that Pinochet was immune after his official term had ended in relation to an established international crime where both the forum and the home states had accepted that they were under an obligation to prosecute. The book refers to some of the arguments that have been advanced to support the conclusion that functional (immunity ratione materiae) from criminal jurisdiction is not available with regard to international crimes. The students should consider these arguments in turn. The book concludes that the law does not appear clear but that a tentative conclusion holds that functional immunity is not available for those international crimes and that both the foreign and forum state are under a treaty-based obligation to criminalize and prosecute in their national systems unless the foreign state explicitly invokes it.

Question 6:
Why are there generally more exceptions to immunity in relation to civil proceedings than with regard to criminal jurisdiction?

Guidance:
Students should consider the distinction between civil and criminal proceedings and jurisdiction and the more extensive protection offered against criminal proceedings. The short answer to the question is that civil proceedings are generally much less intrusive on the foreign state and/or its representatives.  

Question 7:
Where is the consensual character of diplomatic relations reflected in diplomatic law?

Guidance:
The question concerns diplomatic law and its consensual nature and asks how state consent is illustrated in the law. The book notes that states are under no obligation to have diplomatic relations with each other and that relations are therefore always based on mutual consent. The book also provides a number of examples where this is reflected. For example, the host state is always free to revoke its consent to the presence of a diplomatic mission of a foreign state just as it must accept the appointment of the head of the mission (and the military attaché) by ‘accreditation’. However, once consent has been provided, the diplomatic relations between the host state and the foreign state is governed by international law.

Question 8:
What options does a forum state have in relation to criminal activities emanating from a foreign diplomatic mission located on its territory?

Guidance:
The question asks the students to consider the options available to a host state in the event that a foreign diplomatic mission engages in criminal activities. At the outset the book notes that foreign diplomats are not above the laws of the host state and that Art. 41 of the VCDR stipulates that all persons protected by the Convention must respect local laws and regulations. The book also notes, however, that when responding to criminal activities from a diplomatic mission the host state only possesses certain options. It may withdraw its consent by declaring a diplomatic representative persona non grata in which cases the sending state must recall the individual or terminate his or her functions. It may also break off diplomatic relations. Reference could be made to the Tehran Hostages case, where the ICJ noted that the rules of diplomatic law are a ‘self-contained régime which specifies the means at the disposal of the receiving State to counter any such abuse’.