Chapter 6 Audio podcast

As the international impact of the COVID-19 pandemic grew, some began to voice the view that China should somehow be held legally responsible for the spread of the virus. After all, the virus did seem to originate from China's Wuhan province, and the Chinese authorities were, after all, fairly slow to publicly admit and to inform other countries that they actually had an outbreak of a novel virus on their hands, that could potentially spread to other countries. In practice,however, those who want to bring a claim against the Chinese government will face an uphill struggle. That is because China is a sovereign state, and therefore also is immune from suits in national courts.

In this episode of the International Law Podcast, episode six, I will focus on the rules in international law that regulate when and for what acts a state like China enjoys immunity from national jurisdiction. I will also look at the protection offered to foreign diplomats and diplomatic premises. And as always, I'll focus on three issues that, I find, are particularly interesting for the listener.

The first of these three issues concerns the rationale for state immunity. Why is it that a state like China cannot be sued in national courts? To answer that question, one needs to remember that the international society is a society of independent states. There is no higher authority in the international legal system than the states. All states are sovereign, and all states have an equal status. And it's because all states are sovereign and because they all have an equal status that they enjoy immunity from each other's national courts of jurisdiction.Because, how should state A be able to require that state B should submit to its national courts, if state B is a sovereign state but the same status in international law asstate A? And this takes us back to the case of China and it'salleged mismanagement of COVID-19.

China is a sovereign state, and it simply cannot be sued and be required to submit to the national courts of other states. And yes, state immunity also protects a state from claims that arise out of the most serious allegations of international law against the state, such as torture or war crimes. Now, it bears noting that a state only enjoys immunity for its sovereign acts. Those are also acts that are known as jure imperii. Acts that are such that they are exercised by the state as a state. A state does not enjoy immunity when it merely acts as any other actor, such as a private individual.Therefore, for commercial acts, acts that are also known as jure gestionis, there is no immunity for the state. Now, I do not have time in this episode to go over the distinction in more detail between jure gestionis and jure imperii. It’s important to note, the question of immunity has nothing to do with the merits of the case itself. So just because a national court would have to find that it cannot deal with the case against Chinabecause it is a sovereign state, that does not mean that the court has hereby also concluded that China has not breached its obligation under international law. It simply means that the court had decided that it cannot deal with the case in the first place. Now, since a case is sovereign, it can, of course, give its consent to have a claim against it brought before court in another state. And, if that is the case, then that particular proceeding can move forward. It is however rare that such consent are given. When a state gives its consent,it is what we call a waiver of immunity. In theory, therefore, China could waive its immunity and allow a case to be brought against it before national courts, somewhere, for its handling of the COVID-19 pandemic. At present,however, that is not very likely to happen.

Further more, a sovereign state can also give its consent to be brought before an international court;for example, states that are parties to the Rome Statute that has created the International Criminal Court (the ICC) have consented to the jurisdiction of the court. And while a state cannot be criminally responsible, representatives of a state can. And states that are parties to the ICC cannot claim that state immunity bars criminal prosecution of its representatives.

The second point I want to stress concerns the immunity of representatives of a state. Now, in theory, one would assume that state representatives enjoy the same form of immunity than the state they represent.After all, the acts they perform are performedon behalf of that particular state. But here one needs to be a little bit careful, because the law does not appear to be totally settled. And, yes, this is quite complicated stuff, with many important distinctions.Here, at present,we'll focus on immunity from criminal prosecution.

The first thing to note here is that some state representatives enjoy basically absolute immunity, while others enjoy less protection. First of all, a few very high-ranking state representatives enjoy almost complete protection. That, for instance, concerns heads of state; also ministers of foreign affairs. These individuals has what we call personal immunity from jurisdiction in other states. That means they are protected from criminal jurisdiction for acts done in both an official, as well as in a private, capacity. And, mind you, that protection applies to acts performed both before and during the period in office.

Now let's turn to the immunity of lower state representatives. As a point of departure, they are also protected by immunity for the acts they perform on behalf of the state they represent. This is what we call functional immunity. They are not, however, protected from prosecution for private acts.Also, and this is important,it is not entirely clear if such state representatives always enjoy immunity from criminal prosecution. Some argue that functional immunity from criminal prosecution does not protect a state representative from prosecution for international crimes. In practice,the law does not appear very settled. What we do know is that a majority of the international law commission seems to believe that functional immunity is unavailable for the following international crimes: genocide, crimes against humanity, war crimes, the crime of apartheid, torture, and enforced disappearances.

The third and last issue that I'll mention in this episode does not concern state immunity or the immunity for state representatives, but the protection of diplomats and diplomatic premises such asembassies. Since they are physically located on the territory of another state,diplomatic premises, such as embassies, are often particularly vulnerable, and therefore in need of specialinternational protection. Diplomatic law tries to balance the concerns of the state that sends its diplomats, and that establish diplomatic premises in another state, with those other states in which representatives and the diplomatic premises are based, the latter is also known as the host state.

Now, it's important to understand that diplomatic relations between states are generally, by and large, a good thing.International society functions better when states interact and are in regular contact. That said, diplomatic relations between two states is always based on mutual consent. And international law does not require states to have diplomatic relations with each other. And this explains why state A is always free to ask state B to simply close its diplomatic premises, such as an embassy, or to declare that certain diplomats are not welcome on the state anymore. Such a declaration is what we call a declaration of persona non grata,or a PNG. When a host state declares a foreign diplomat persona non grata, the sending state must recall the person or terminate his or her functions with the mission. Now, there are many examples of such PNGs. In recent years, a number of European countries have declared specific diplomats on Russian embassies to bepersona non grata. And this has been due to suspicion that thediplomats inquestion were, in fact, conducting intelligence activities in the home state. And after Russia's interference in the 2016 American presidential elections, the US government declaredpersona non gratathirty-five Russian diplomats in the US who were allegedly acting in a manner inconsistent with their diplomatic and consularstatus. Here, two points are important. The first is that foreign diplomats are not above the laws of the host state. In fact, like the locals, foreign diplomats must respect local laws and regulations. Also, the foreign diplomats must not interfere in internal affairs of the host state, just like the premises of the diplomatic mission cannot be used in any manner incompatible with the functions of the mission. The second point to note is that, unless the host state breaks off its diplomatic ties with the state in question in total,a declaration of persona non gratais the only legal response that the host state can resort to against the foreign diplomats.

The Vienna Convention on Diplomatic Relations specifies that diplomatic agents are immune, as well as inviolable.They cannot be arrested or detained. And the same sort of protection is granted under international law to foreign embassies.Also, such premises are inviolable,and local law enforcement personnel may not enter them without the consent of the head of the mission. And that applies even in cases where the host state believes that the foreign state uses the premises for criminal purposes and therefore abuses the diplomatic status of the premises. The host state must also protect the diplomatic premises against any form of intrusion or damage.