In general, states cannot exercise legal control over another state or foreign states lawfully acting within their territory. This approach goes back to international common law and is centuries old. The basis is twofold. First, states are not permitted to interfere with the public acts of foreign sovereigns out of respect for their independence. Secondly, the judiciary of a country should not interfere with the foreign policy of its own nation or others in the interest of the separation of powers.
Over time, the absolute immunity of sovereigns has eroded somewhat. Beginning following the First World War and accelerating In the 1950s, various cases began to establish the difference between a state operating as a sovereign (jure imperii) versus those acts where the state acted predominantly as an economic actor (jure gestionis). In the latter case, courts have begun to extend jurisdiction over foreign powers and their actions within their territory like any other international corporation or citizen. Currently, all states except for China and a few Latin American nations accept this doctrine of restrictive sovereign immunity distinguishing between the “private” and “national” acts of other nations to determine jurisdiction.
This doctrine raises the question of how to define the jurisdictional status of the sovereign’s action. Generally, the courts look to both the nature of the act and the function that the act is intended to fulfill. In areas such as employment matters at embassies, bases, and consulates, generally, the host nation does not have jurisdiction over the actions of the foreign employer. However, recent cases, such as Kingdom of Morocco v. DR, have found that if the employee and employment are of the type that is non-diplomatic (in that case, a chauffeur), that the host nation MAY have jurisdiction over the employment matter.
Additionally, violations of international law, such as war crimes or crimes against humanity, have allowed countries to pierce the veil of immunity to charge the nation and the state actors with crimes and damages. Some of the more recent cases included suits against Germany for damages arising from forced labor camps in World War II, where German troops in nations allied with Germany pressed locals into forced labor to support their military.
Even when jurisdiction is established, the ability to execute a judgment on a foreign state is limited. The ability to seize property or assets of a foreign country is necessarily limited. The ability for economic retaliation is high, and those assets that are used for public functions are absolutely immune (such as embassy buildings and foreign government reserves).
These same immunities generally extend to the official diplomats and official senior state representatives (personal immunity) or an agent who may not be a diplomat or senior state representative when in the conduct of official business (functional immunity). This immunity inures the State, as opposed to the individual, however. Therefore, a State may waive the immunity, and these individuals may then be subjected to trial and punishment by the host State. Many of these elements are spelled out in the Vienna Convention on Diplomatic Relations (1961).
The personal immunities include:
- Immunity from arrest or detention
- Immunity from criminal jurisdiction
- Immunity from civil or administrative jurisdiction, except:
- private property transactions
- succession or inheritance
- professional or commercial activity outside of an official function
- Immunity from search or seizure of their private residence, official office, papers, personal effects, and personal property
- Exemption from taxes
Personal diplomatic immunity does not extend, generally, to consuls per the Vienna Convention of 1963. Consular agents are afforded functional immunities only. Additionally, they may only be arrested and detained for serious crimes and maintain immunity from search and seizure of their consular property.
Heads of State and senior members of government enjoy broad personal and functional immunities on official state visits. The basis for these immunities is to ensure no interference with their official status or diplomatic mission. The precedent for this immunity extends back over 200 years to The Schooner Exchange v. McFaddon (1812) and other cases.
In general, these immunities are in force during the service period – whether functional or personal immunity – and for a reasonable time thereafter to allow for the transit of the individual back to their home country. These immunities even extend and cover those individuals that are wanted or convicted of a crime when on an official state visit or in their official capacity. However, what needs to be remembered is that this immunity is ultimately held by the state and may be waived. This may lead to an individual’s exposure, such as when a head of state is deposed in a coup while the new government withdraws overseas, and the immunity.
Where sovereign immunity used to be considered an absolute right, the current status in international law is in flux. Current thought is biased towards ensuring the ability of individuals to have a judicial remedy against any alleged breach of the law – extending a long arm of jurisdiction into areas formerly immune. The determination of jurisdiction now requires a skillful analysis of the facts and precedent to assess whether jurisdiction exists in each case.