Immunity from Jurisdiction

Immunity from execution

A separate and stricter question. A State may lose immunity from adjudication and keep immunity from execution, so that a claimant obtains a judgment and cannot enforce it.

Property used or intended for use for governmental non-commercial purposes, above all diplomatic bank accounts, military property and central bank assets, is generally immune from attachment even where the underlying claim succeeded. That is the practical reason many judgments against States are never satisfied.

Section 86: India's rule

Section 86 of the Code of Civil Procedure 1908 puts the matter on a statutory footing in India, and it is worth knowing closely.

Section 86(1). No foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government. There is a proviso: a person may, as a tenant of immovable property, sue without such consent a foreign State from whom he holds or claims to hold the property.

Section 86(2). The consent may be given for a specified suit, for several specified suits, or for all suits of a specified class, and may name the court. But it shall not be given unless it appears to the Central Government that the foreign State:

(a) has instituted a suit in the Court against the person desiring to sue it; or

(b) by itself or another, trades within the local limits of the jurisdiction of the Court; or

(c) is in possession of immovable property situate within those limits and is to be sued with reference to that property or for money charged on it; or

(d) has expressly or impliedly waived the privilege accorded to it by the section.

Section 86(3). Except with the consent of the Central Government certified in writing by a Secretary to that Government, no decree shall be executed against the property of any foreign State.

Section 86(4) applies the preceding provisions to the ruler of a foreign State and to the other persons the section names.

Three observations, and they are what an examiner is testing.

The four cases are the restrictive theory in statutory form. Trading, holding land, suing first and waiving are precisely the situations in which the modern law denies immunity. India reached the restrictive position by statute in 1908 and by amendment in 1976, rather than by judicial development.

The gate is political, not judicial. The section makes the Central Government's certified consent the condition, so an Indian court does not decide for itself whether the act was jure imperii or jure gestionis; it asks whether consent has been given.

Execution is separately protected by section 86(3), which is the statutory version of the point made above: a claimant may clear every hurdle and still be unable to enforce.

Diplomatic immunity

A different immunity with a different justification, and merging the two costs marks.

The instrument is the Vienna Convention on Diplomatic Relations 1961, which is very widely ratified and is largely declaratory of custom.

The justification is functional: immunity exists so that a mission can perform its functions, not because the diplomat is important. The Convention's preamble says the purpose of privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States.

The main incidents. The premises of the mission are inviolable and may not be entered without consent; its archives and documents are inviolable; the person of a diplomatic agent is inviolable and he is not liable to arrest or detention; he enjoys immunity from criminal jurisdiction without exception, and from civil and administrative jurisdiction subject to defined exceptions, chiefly private immovable property, succession, and professional or commercial activity outside his official functions.

Who is a diplomatic envoy. The question is asked in exactly those words, and the Convention's own vocabulary answers it. Article 14 divides heads of mission into three classes: ambassadors or nuncios accredited to Heads of State, and other heads of mission of equivalent rank; envoys, ministers and internuncios accredited to Heads of State; and chargés d'affaires accredited to Ministers for Foreign Affairs. Except as concerns precedence and etiquette, there shall be no differentiation between heads of mission by reason of their class, so the classes are matters of rank and ceremony and not of legal capacity.

The word envoy therefore has a narrow technical sense and a wide ordinary one. Strictly it is the second class in article 14. In ordinary usage, and in the examination question, it means any diplomatic agent, which the Convention defines as the head of the mission or a member of the diplomatic staff, that is the staff having diplomatic rank. A mission's members fall into three groups whose immunities differ: the diplomatic staff, the administrative and technical staff, and the service staff.

What a mission is for, article 3. The functions of a diplomatic mission consist, inter alia, in representing the sending State; protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law; negotiating with the Government of the receiving State; ascertaining by all lawful means conditions and developments in the receiving State and reporting thereon; and promoting friendly relations and developing economic, cultural and scientific relations.

Article 3 is the justification of article 29 and the rest. Immunity exists because those functions cannot be performed by someone liable to arrest, and the words by all lawful means in paragraph (d) are the line between diplomacy and espionage.

Two limits worth knowing. Immunity is from jurisdiction and not from liability: the obligation to obey the law remains, and the diplomat can be tried at home. And immunity may be waived by the sending State, not by the diplomat, and the waiver must be express.

Persona non grata. The receiving State's real remedy is not the courts but article 9 of the Convention: it may at any time and without having to explain its decision notify the sending State that a member of the mission is persona non grata, whereupon he must be recalled or his functions terminated.

Immunity of international organisations is different again and is functional in the same way: article 105 of the Charter gives the United Nations in the territory of each Member such privileges and immunities as are necessary for the fulfilment of its purposes, and gives representatives of Members and officials of the Organization such privileges and immunities as are necessary for the independent exercise of their functions. That is the provision behind [Subjects of International Law].

A worked example

The Republic of Ruritania, through its embassy in Delhi, does four things. It buys ten thousand tonnes of wheat from an Indian trader and does not pay. It refuses to pay rent on the flat it leases for its cultural attache. Its ambassador's car injures a pedestrian. And it revokes the visa of an Indian businessman, ruining his contract.

The wheat. A commercial act, jure gestionis on the nature test. Under section 86(2)(b) the Central Government may consent to a suit because Ruritania trades within the local limits, and the restrictive theory says immunity should not apply. Without the certified consent, though, the suit cannot proceed.

The flat. If the Indian claimant is the tenant, the proviso to section 86(1) lets him sue the foreign State from whom he holds without consent. Here Ruritania is the tenant and the Indian is the landlord, so the proviso does not help him, and he needs consent, which section 86(2)(c) permits where the State is in possession of immovable property within the limits and is sued with reference to it.

The car. This is diplomatic immunity, not State immunity, and the two must not be run together. The ambassador is immune from criminal jurisdiction without exception, and from civil jurisdiction save in the defined cases, which do not cover a road accident in the course of his duties. The pedestrian's practical routes are a waiver by Ruritania, a claim on compulsory motor insurance, or a request that the ambassador be declared persona non grata under article 9.

The visa. A sovereign act, jure imperii on any test: deciding whom to admit is the exercise of governmental authority. Immunity applies, none of the four cases in section 86(2) is satisfied, and the businessman's remedy is diplomatic rather than judicial.

And if he wins the wheat case? Section 86(3) still stands in his way: no decree shall be executed against the property of a foreign State except with the Central Government's certified consent, and embassy accounts are the paradigm of property immune from execution.

Distinctions table

What it does NOT mean

Immunity is not absence of jurisdiction. The court has jurisdiction and is barred from exercising it. That is why waiver works: you cannot waive a jurisdiction the court never had.

Immunity is not exemption from the law. A diplomat must obey Indian law; he cannot be tried in India for breaking it. The Convention says so, and the sending State may prosecute him.

Section 86 is not a discretion to be generous. Sub-section (2) says consent shall not be given unless one of the four cases appears, so the Government's power to consent is bounded.

The restrictive theory is not a rule that States can always be sued for money. The nature of the act decides, and immunity from execution survives separately.

Limits and criticism

The nature and purpose tests do not always separate cleanly. Buying boots is commercial; buying boots for an army in wartime is arguable; and the choice of test decides the case rather than following from it.

The claimant is often left without a remedy. Where the act is sovereign, or where the property is immune from execution, the individual injured by a State has no forum. That is the standing objection to the whole doctrine, and its answer, that the remedy is diplomatic protection by the claimant's own State, depends on that State choosing to act.

Immunity for grave breaches is contested. Whether a State can claim immunity in respect of torture or other serious violations of peremptory norms has been litigated repeatedly in national and international courts, and the answer that has generally prevailed is that immunity is procedural and is not displaced by the gravity of the alleged breach. The argument continues.

Quick revision

Par in parem non habet imperium: an equal has no authority over an equal. Immunity bars the exercise of a jurisdiction that exists.

Absolute theory, superseded by the restrictive theory: acta jure imperii attract immunity, acta jure gestionis do not. The nature test generally prevails over the purpose test.

Immunity from execution is separate and stricter; property for governmental non-commercial purposes stays immune.

Section 86 CPC 1908: no foreign State may be sued except with the consent of the Central Government certified in writing by a Secretary; proviso, a tenant may sue without consent. Consent shall not be given unless the State (a) has sued first, (b) trades within the limits, (c) possesses immovable property within the limits and is sued about it, or (d) has waived. Section 86(3): no decree executed against a foreign State's property without the same consent.

Diplomatic immunity: Vienna Convention on Diplomatic Relations 1961, justification functional. Premises, archives and person inviolable; criminal immunity absolute; civil immunity with exceptions for private immovable property, succession and outside professional or commercial activity. Waiver by the sending State, express. Article 9: persona non grata, no reasons required.

Article 105 of the Charter: the United Nations enjoys such privileges and immunities as are necessary for the fulfilment of its purposes.

Test yourself

1. Distinguish acta jure imperii from acta jure gestionis and give the test.

Acta jure imperii are acts done in the exercise of sovereign authority, such as legislating, expelling a foreigner or issuing a visa, and they attract immunity. Acta jure gestionis are acts of a private or commercial character, such as buying goods, chartering a ship or borrowing money, and they do not. The two competing tests are the nature test, which looks at the character of the act itself, and the purpose test, which looks at the object for which it was done. The nature test generally prevails, because a State can attribute a public purpose to almost anything and the purpose test would therefore swallow the exception.

2. Set out the scheme of section 86 of the Code of Civil Procedure.

By section 86(1) no foreign State may be sued in a court otherwise competent except with the consent of the Central Government certified in writing by a Secretary, subject to a proviso allowing a tenant of immovable property to sue the foreign State from whom he holds without such consent. By section 86(2) the consent may be given for a specified suit, several specified suits or a class of suits, and may name the court, but shall not be given unless it appears that the foreign State has itself sued the intending plaintiff in that Court, trades within the local limits, possesses immovable property within those limits and is to be sued with reference to it or for money charged on it, or has expressly or impliedly waived the privilege. By section 86(3) no decree may be executed against the property of a foreign State without the same certified consent. Section 86(4) extends the provisions to the ruler of a foreign State.

3. Why is immunity from execution treated separately from immunity from suit?

Because they protect different things and are lost at different points. Immunity from suit protects the State from being judged; immunity from execution protects the State's property from being taken. A State may submit to a court, or fall within one of the exceptions, and still resist attachment of property used or intended for governmental non-commercial purposes, such as embassy accounts, military assets and central bank reserves. Section 86(3) of the Code of Civil Procedure states the point in Indian law. The practical consequence is that a successful claimant may hold an unenforceable judgment.

4. Is diplomatic immunity the same as State immunity?

No. State immunity belongs to the State and its property, rests on sovereign equality expressed in par in parem non habet imperium, and is now restrictive. Diplomatic immunity belongs to the mission and its agents, rests on a functional justification stated in the preamble to the Vienna Convention on Diplomatic Relations 1961, that privileges and immunities are not to benefit individuals but to ensure the efficient performance of the functions of missions, and gives absolute immunity from criminal jurisdiction with defined exceptions in civil matters. The receiving State's remedy against a diplomat is not the courts but a declaration of persona non grata under article 9.

5. A foreign State's trade office in Mumbai breaks a supply contract. Advise the Indian supplier.

The act is commercial, so on the restrictive theory it is acta jure gestionis and immunity should not apply. In Indian law the supplier cannot simply sue: section 86(1) requires the consent of the Central Government certified in writing by a Secretary. He should apply for that consent, relying on section 86(2)(b), since the State trades within the local limits of the court's jurisdiction, and on any express waiver in the contract, which section 86(2)(d) covers. If he obtains consent and succeeds, he must then confront section 86(3), which bars execution against the State's property without further certified consent, and property used for governmental non-commercial purposes will in any event be protected.

6. "Immunity denies a remedy to the very people international law says it protects." Discuss.

The criticism has force. Where the act complained of is sovereign, or where the State's property is immune from execution, the injured individual has no forum, and the doctrine operates most harshly on those least able to bear it. The answers are three. Immunity is procedural rather than substantive: it bars the exercise of jurisdiction and does not deny that a wrong has been done, and the State remains internationally responsible. The restrictive theory has removed immunity from precisely the commercial dealings in which private parties most often deal with States. And the individual's route is diplomatic protection by his own State, which is real but depends on that State choosing to act, and is dealt with in [Treatment of Aliens and Diplomatic Protection]. Whether immunity should yield to allegations of grave breaches of peremptory norms remains contested, and the view that has generally prevailed is that it does not.