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II. State Immunity, Diplomatic Immunity and Act of State: A Triple Protection Against Legal Action?

Published online by Cambridge University Press:  17 January 2008

Colin Warbrick ,
Dominic McGoldrick  and
J. Craig Barker
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Extract

The relationship between State immunity and diplomatic immunity has always been a rather complex one. The two concepts undoubtedly have a common juridical background in the form of the concepts of sovereignty, independence and dignity.1 On the other hand, recent developments in both fields have seen a move towards a more functional-based approach. Thus, in relation to diplomatic immunity, the dominant theoretical basis is that of functional necessity.2 As regards State immunity, recent developments in both international law3 and, more particularly, in UK law4, from absolute to restrictive State immunity, have resulted in a more functionally orientated approach, that is, a shift of emphasis in matters of State immunity from immunity ratione personae to immunity ratione materiae.5 Now two recent cases in the United Kingdom have raised the possibility that, in the case of diplomats at least, the two concepts may be combined to provide a double immunity for diplomatic agents against civil suit. More controversially, the cases have raised the possibility of a third type of protection based upon immunity ratione personae in what could be said to amount to a modified act of State doctrine. The cases in question are Propend Finance Pty Ltd. v. Alan Sing and The Commissioner of the Australian Federal Police6 and Re P (Diplomatic Immunity: Jurisdiction).7

Type
Current Developments: Public Internationa Law
Information
International & Comparative Law Quarterly , Volume 47 , Issue 4 , October 1998 , pp. 950 - 958
Copyright
Copyright © British Institute of International and Comparative Law 1998

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References

1. See Marshall, CJ in The Schooner Exchange v. McFaddon (1812) 7 Cranch 116.Google Scholar

2. See, in particular, the Preamble to the Vienna Convention on Diplomatic Relations 1961.

3. See the recent work of the International Law Commission in this area, in particular, the Report of the Commission to the General Assembly on the work of its 35th session (1983) II(2) Yb.I.L.C 25.Google Scholar

4. State Immunity Act 1978.

5. See Van Panhhuys, , “In the Borderland Between the Act of State Doctrine and Questions of Jurisdictional Immunities” (1964) 13 I.C.L.Q. 1193, 1199.Google Scholar

6. Unreported. Reference will be made to a transcript of the judgment dated 17 Apr. 1997.

7. The decision of both Sir Stephen Brown in the Family Division and of the Court of Appeal are reported in [1988] 1 F.L.R. 1026.Google Scholar

8. The following is a summary of the facts of the case which are set out in full in the judgment of Leggatt LJ in Propend, transcript, supra n.6, at pp.1–5.Google Scholar

9. Idem, p.10.

10. Incorporated into UK law by virtue of the Diplomatic Privileges Act 1964.

11. See Denza, , Diplomatic Law (2nd. edn 1998) pp.273–274.Google Scholar

12. Transcript, supra n.6, at p.6.Google Scholar

13. Idem, p.7. Leggatt LJ noted that the judge's finding that there was no waiver within the meaning of Art.32 cannot be challenged.

14. Idem, pp.8–9.

15. Art.39(2) of the Vienna Convention has recently been the subject of much controversy in international law by virtue of the so-called restrictive interpretation of the provision put forward by the US in response to the Abisinito affair in the US in 1988 (see further Larschart, “The Abisinito Affair. A Restrictive Theory of Diplomatic Immunity” (1988) 26 C.J.T.L. 283Google Scholar, and Pecoraro, “Diplomatic Immunity: Application of the Restrictive Theory of Diplomatic Immunity” (1988) 29 H.J.I.L. 533).Google Scholar Although regarded by many as controversial, it would seem that the restrictive interpretation of Art.39(2) is in line with both customary international law and the terms of the Vienna Convention. See further Denza, op. cit. supra n.11, at p.357Google Scholar and Barker, , The Abuse of Diplomatic Privileges and Immunities: A Necessary Evil? (1996), pp.131–133.Google Scholar

16. Transcript, supra n.6, at p. 10.Google Scholar

17. ibid.

18. Idem, p.5.

19. Idem, p.15.

20. Idem, pp.16–17.

21. Idem, p.17.

22. Ibid.

23. Idem, pp.18–19.

24. See Schreuer, , State Immunity: Some Recent Developments (1988), pp.94–95.Google Scholar

25. Cited authorities included Claim against Empire of Iran (1963) 45 I.L.R. 57 (Germany)Google Scholar, Church of Scientology (1978) 65 I.L.R. 193 (Germany)Google Scholar, Player Largo v. I Congresso Del Partido [1983] A.C. 244Google Scholar, Kuwait Airways Corporation v. Iraqi Airways and the Republic of Iraq [1995] 3 All E.R. 694Google Scholar and Littrell v. USA (No.2) [1994] 4 All E.R. 203.Google Scholar

26. Transcript, supra n.6, at p.21.Google Scholar

27. This point was specifically recognised by the insertion of s.14(2) into the 1978 Act.

28. See e.g. the decision of the Court of Appeal in Kuwait Airways, supra n.25.

29. These included Church of Scientology, supra n.25. Herbage v. Messe [1990] I.L.R. 101 (US)Google Scholar and Jaffe v. Miller [1993] I.L.R. 446 (Canada).Google Scholar

30. Transcript, supra n.6, at p.21.Google Scholar

31. Idem, p.22.

32. Idem, p.23.

33. [1998] 1 F.L.R. 624.Google Scholar

34. [1998] 1 F.L.R. 1026, 1034. For a critical discussion of this aspect of Sir Stephen Brown's decision see Barker, “Child Abduction and International immunities—Balancing Competing Policies” (1998) 10 CF.L.Q. 211, 213–215.

35. [1998] 1 F.L.R. 1026, 1034.Google Scholar

36. Idem, p.1035.

37. The doctrine of act of State is available as a defence to a legal suit whereas the issue of immunity concerns the ability to bring a suit However, in the circumstances of this case, State immunity was allowed for reasons which would have been invoked as a defence to suit had State immunity not prevailed. See further below.

38. Van, Panhuys, op. cit. supra n.5, at p.1194.Google Scholar

39. Shearer, , Starke's International Law (11th edn, 1994), p.100.Google Scholar

40. [1975] 1 Q.B. 557.Google Scholar

41. Idem, p.573.

42. Ibid.

43. Ibid.

44. Decision of 11 Mar. 1998 Reported in [1998] 1 F.L.R. 1035.Google Scholar