ESSAY No. 04 State immunity

When we are concerned with understanding the actual nature of the ‘state immunity doctrine’ this Latin quote is enough to illuminate it. It says “par in parem non habet imperium” which suggests that a country shouldn’t assert jurisdiction over other countries. There exists a close resemblance between this rule and the old Westphalian concept of sovereignty which says that the ‘nation state is the most supreme authority’. With the passage of time there had been various modifications in it. Its implementation has also faced numerous limitations. These events have resulted in the development of 3 distinct models in the realm of “state immunity”. These are ‘the absolute model, the restrictive model, and state immunity as procedural plea’.

During this era, courts of the United Kingdom have observed some prominent changes in the way they deal with cases that are somehow interlinked with state immunity. However, the nature of these changes may vary from disputes concerning basic human rights law to questions concerning immunity in arbitral proceedings. When the courts of the United Kingdom begin to investigate the issues that are concerned with the way a state behaves, significant developments are unfolding in the law of state immunity. Some highly valuable insights are offered by the jurisprudence regarding the way the rules of ‘public international law’ are implemented and addressed. However, the concept of the state immunity being interconnected with ‘public international law’ serves a lens by relying on which we can examine the issue of ‘English Courts’ engaging with ‘international law’. Three models exist for the doctrine of state immunity which we have already mentioned above.

The most basic principles regarding the state immunity doctrine are written in the First section of SIA and it states that under normal conditions a country has immunity from the jurisdiction of the United Kingdom until the actions performed by the concerned state are in the exceptions mentioned in Sec 2-17. In order to get this immunity, it is not needed for the states to be a part of the proceedings and claim for it. Its a fundamental and essential immunity which the courts are compelled to grant. It has been affirmed by case law that the first is to be explained in obligatory terms and doesn’t comprise any component of discretion. On the basis of academic research and observing the practices of other states, during the case ‘Jones v Saudi Arabia’, the House of Lords believes that ‘where applicable, state immunity is an absolute preliminary bar’. And on the basis it was put forward that ‘there was no scope for the exercise of discretion’. The court of appeal has also recognized this explanation. However, it leads us to one decision: where there is state immunity, the courts don’t dive into the ‘questions of merits’. It has been explained by sec 14 that in light of the SIA what amounts to a state for the purposes of immunity.

Particularly, it has also been observed that the advantages and the immunities as mentioned in Part 1 extends out to all foreign Commonwealth countries except UK.

was adopted back in 2004, it has been established by the House of Lords that from now on the word ‘Government’ should be explained on the basis of Convention.

However, this should be noted that for entities other than the executive channels of the government of a country immunities shall not be granted apart from specified circumstances. The first in the list of these circumstances is when the entity is using the ultimate sovereign powers. To find that whether or not the sovereign authority has been used by the entity, the courts have to determine that whether the activity that we are concerned with is a private act or aa sovereign act in the light of ‘Customary International Law’. In order to determine the nature of the action there are several factors that are to be determined first. This includes “to whom the critical action is attributable, the context of the claim, and whether a private person has the capacity to act in that manner”.

As we get into the details of the 2nd exception we realize that it’s applicable whenever the circumstances indicate that if the same proceedings that were against that separate entity were brought up against a country, that country would enjoy immunity. However, it has been pointed out by Dickinson, Lindsay, and Loonam that there exist chances that this type of situation may take place e.g. when a legal action is started concerning the membership in a company, and all other members of the company are sovereign states. It is to be noted that the central banks and other financial institutions of a state are considered the departments of the government in the light of the sec 14(1) (c). But in some cases they can be treated as separate entities as well. No matter what their classification is, the actor of this class, in light of the SIA, are treated separately due to special advantages that they have. An example of this ‘the property owned by a central bank can not be considered as ‘in use or intended for use for commercial purposes’ and therefore are not a subject to attachment. The entities present on the list added in section 14 aren’t the only ones that are immune; Her Majesty has the authority to broaden or narrow the range of immunities.

While it is the right of a state to use immunity as per SIA, but they have the authority to waive this immunity directly or indirectly. A state who has just waived their right of immunity is perceived in both ways as the ‘state quitting its right to immunity’ or ‘a state submitting to court’s jurisdiction’. This is the section 2 that deals with situations where a state gives away their right of immunity or submits to a court’s jurisdiction. As per this section there are 4 circumstances upon which state is considered to have given up its immunity. Initially, the circumstances are when the state has either by written order or by their actions has submitted to the Jurisdiction of the courts of UK since the inception of the conflict.

Secondly, by an earlier written deal the state has submitted to the jurisdiction but in this type of circumstances the entire deal or contract or agreement needs to be in written form and can include ‘a treaty or any other international agreement’.

Thirdly, a state is considered to have submitted to the jurisdiction of the court when the state starts the proceedings itself. The fourth and the last condition is when a state quits its right of immunity by taking part or taking action in the legal proceedings, apart from simply claiming immunity or showing interest in specific property under some particular conditions.

Interestingly, both the doctrine of sovereignty and consent has the waiver of immunity in it. When a state acts in such a way that its actions indicate a waiver of immunity, the action is regarded as a sovereign act. Therefore, if a state has acted in such a manner and have lost their right of immunity, they cannot claim it again.

It is very interesting to note that even the general principle of immunity as explained in SIA’s first section has faced legal action and was presented in the European Court of Human Right. They consider it to be contradicting the “Right to Fair Trial under article 6 of the European Convention on Human Rights (ECHR)”. This wasn’t done just once but two times. First during Fogarty v United Kingdom100 and then during Al-Adsani v United Kingdom. Both of the times when it was challenged, the court held that the ‘doctrine of state immunity’ is based upon the rules of international law and it fosters a goodwill between states by acknowledging other countries' sovereignty. It has also served a valid objective of keeping up with the international norms. Therefore, its application is deemed appropriate and it doesn’t violate the acceptable boundaries set for the UK.