Beruflich Dokumente
Kultur Dokumente
Gladys Pagulong
- Sovereign Immunity
-Sovereign Immunity is a legal doctrine by which the sovereign or state cannot commit a legal
wrong and is immune from civil suit or criminal prosecution.
A head of state is immune from the jurisdiction of a foreign state's courts, at least as to
authorize official acts taken while the ruler is in power.
-Ratione Materiae
- The availability under customary international law to a serving or former state official
of immunity ratione materiae from foreign criminal jurisdiction turns on whether the
act at issue was performed in an official capacity.
-State Immunity
In public international law, the principle that one sovereign power cannot exercise
jurisdiction over another sovereign power. It is the basis of the act of state doctrine and
sovereign immunity.
- Rulings:
- The Supreme Court ruled that the Republic of Indonesia cannot be deemed to have waived
its immunity to suit. The mere entering into a contract by a foreign state with a private party
cannot be construed as the ultimate test of whether or not it is an act juri imperii or juri
gestionis. Such act is only the start of the inquiry. There is no dispute that the establishment
of a diplomatic mission is an act juri imperii.
The state may enter into contracts with private entities to maintain the premises, furnishings
and equipment of the embassy. The Republic of Indonesia is acting in pursuit of a sovereign
activity when it entered into a contract with the respondent. The maintenance agreement
was entered into by the Republic of Indonesia in the discharge of its governmental functions.
It cannot be deemed to have waived its immunity from suit.
Immunity of the Representatives of States or Diplomatic And Consular Immunities
DIPLOMATIC IMMUNITIES
• The diplomatic representatives who can enjoy immunities in varying degrees are:
• “head of mission”
• “members of mission”
• “members of the staff of the mission”
• “members of diplomatic staff”
• “diplomatic agent”
• “members of administrative and technical staff”
• “members of service staff”
• ”private servant”
The functions of the diplomatic missions are:
• The premises of the mission shall be inviolable. The agents of the receiving State may
not enter them, except with the consent head of the mission.
• The receiving State is under a special duty to take all appropriate steps to protect the
premises of the mission against any intrusion or damage and to prevent any
disturbance of the peace of the mission or impairment of its dignity.
• The premises of the mission, their furnishings and other property thereon and the
means of transport of the mission shall be immune from search, requisition,
attachment or execution.
• The sending State and the head of the mission shall be exempt from all national,
regional or municipal dues and taxes in respect of the premises of the mission,
whether owned or leased, other than such as represent payment for specific services
rendered.
• The exemption from taxation referred to in this Article shall not apply to such dues
and taxes payable under the law of the receiving State by persons contracting with
the sending State or head of the mission.
• The archives and documents of the mission shall be inviolable at anytime and
anywhere they may be.
• The receiving State shall permit and protect free communication on the part of the
mission for all official purposes. In communicating with the Government and other
missions and consulates of the sending State, wherever situated, the mission may
employ all appropriate means, including diplomatic couriers and messages in code or
cipher. However, the mission may install and use a wireless transmitter only with the
consent of the receiving State.
• The diplomatic courier, who shall be provided with an official document indicating his
status and the number of packages constituting the diplomatic bag, shall be
protected by the receiving State in the performance of his functions. He shall enjoy
personal inviolability band shall not be liable to any form of arrest or detention.
• The sending State or the mission may designate diplomatic couriers ad hoc. In such
cases the provisions of paragraph 5 of this Article shall also apply, except that the
immunities therein mentioned shall cease to apply when such a courier has delivered
to the consignee the diplomatic bag in his charge
• The person of a diplomatic agent shall be inviolable. He shall not be liable to any form
of arrest or detention. The receiving State shall treat him with due respect and shall
take all appropriate steps to prevent any attack on his person, freedom or dignity.
• The private residence of a diplomatic agent shall enjoy the same inviolability and
protection as the premises of the mission.
• His papers, correspondence and, except as provided in paragraph 3 of Article 31, his
property, shall likewise enjoy inviolability.
• A real action relating to private immovable property situated in the territory of the
receiving State, unless he holds it on behalf of the sending State for the purposes of
the mission;
• The immunity of a diplomatic agent from the jurisdiction of the receiving State does
not exempt him from the jurisdiction of the sending State.
• Waiver of Immunity
• Consul
• A consul is an official representative of the government of one state in
the territory of another, normally acting to assist and protect the
citizens of the consul’s own country, and to facilitate trade and
friendship between the people of two countries. Consuls are not
concerned with political matters but attend rather to administrative
and economic issues such as the issuance of visas.
Consulate
• Refers to the office of the consul and is usually subordinate to the state’s main
representation in that foreign country, usually an Embassy. It also refers to the
building occupied by the consul and his or her staff. The consulate may share
premises with the embassy itself.
• The sending State, as regards a member of the consular post, may waive any of the
privileges and immunities, i.e. the waiver may concern the personal inviolability,
immunity from jurisdiction and liability to give evidence. The waiver must be express,
save for where the consular officer or employee has initiated proceedings and his
counterpart raises a counterclaim, and shall also be communicated to the receiving
State in writing. A waiver of immunity from jurisdiction for civil or administrative
proceedings does not include waiver of immunity from eventual measures of
execution following the judgement.
Act of State Doctrine
• The Act of State Doctrine states that every sovereign state is bound to respect the
independence of every other sovereign state, and the courts will not sit in judgment
of another government's acts done within its own territory.