PUBLIC INTERNATIONAL LAW

STATE IMMUNITY

GROUP SIX DAY CLASS A

NAME REG. NO MARKS

MELVIN MAINA KANG’ORI BLAW/2024/46741
PURITY MULI BLAW/2024/53694
EMAN SALAH BLAW/2024/54063
SHEREE NYAWIRA BLAW/2024/53026
KELVIN MACHARIA BLAW/2024/49615
LYDIA GACHERI BLAW/2024/54135
RENEE TAMARA BLAW/2024/54548
VINCENT MWANGI BLAW/2024/50616
ENOCK MOMANYI BLAW/2022/
MULI AMOS WAITAH BLAW/2022/57859

A.) INTRODUCTION

State immunity is a doctrine of public international law that protects one sovereign state from
being sued in the courts of another sovereign state without its consent. It is rooted in the principle
of sovereign equality, which holds that one sovereign power cannot exercise jurisdiction over
another equal sovereign power (par in parem non habet imperium).

B.) HISTORICAL BACKGROUND OF THE CONCEPT OF STATE IMMUNITY

The law of state immunity is primarily derived from customary international law, though many
countries have national legislation on the subject, and the United Nations Convention on
Jurisdictional Immunities of States and Their Property (UNCSI), while not yet in force, is widely
considered a reflection of current international practice.

Key Aspects
 1. Jurisdictional Immunity vs. Enforcement Immunity: State immunity involves two key
aspects: immunity from jurisdiction (the right not to be a party to legal proceedings in a
foreign court) and immunity from enforcement (protection of state property from
measures like seizure or execution to satisfy a judgment).
2. Absolute vs. Restrictive Theory:

Absolute Immunity: Under this older, traditional approach, a foreign state enjoys total immunity
from foreign court proceedings and enforcement measures, even in commercial matters. Some
countries, like China (until recently), have historically applied this doctrine.

Restrictive Immunity: Most states, including the US and UK, now follow the restrictive theory.
This approach distinguishes between a state's public acts (jure imperii) and its private or
commercial acts (jure gestionis). Immunity is generally granted only for public acts, while a state
can be sued in foreign courts for its commercial or private activities.

Origins: Sovereign Equality and the Absolute Doctrine

The historical foundation of state immunity lies in the principle of sovereign equality,
encapsulated by the Roman law maxim par in parem non habet imperium ("equals have no
authority over one another").

a.) Early Development: This maxim appeared in legal discourse as early as the 14th
century, establishing the fundamental notion that one sovereign jurisdiction could not
exercise authority over another.
b.) The 19th Century Codification: Throughout the 19th century, this principle solidified
into a doctrine of absolute immunity within national courts, particularly in the UK and
US. This traditional approach held that a foreign state was completely immune from
foreign court proceedings for all activities.

Key Case Law: The US Supreme Court case The Schooner Exchange v. McFaddon1 provided a
foundational judicial articulation of this absolute approach, emphasizing national dignity,
independence, and international comity.

1
The Schooner Exchange Vs McFaddon (1812)
 c.) The 20th Century Shift: The Rise of Restrictive Immunity

The 20th century saw a major transformation in the doctrine due to changing geopolitical and
economic realities:

Increased State Commercial Involvement: States began engaging heavily in international trade
and commerce (e.g., via state-owned enterprises), making the absolute immunity doctrine
economically unfair to private individuals and entities.

The Restrictive Theory Emerges: Consequently, a new restrictive theory gained traction, drawing
a distinction between a state's public or sovereign acts (jure imperii) and its private or
commercial acts (jure gestionis). Under this theory, immunity is generally only granted for
sovereign acts.

Codification and Modernization

The shift to the restrictive approach was formalized through national legislation and international
agreements:

National Laws: The US adopted the Foreign Sovereign Immunities Act (FSIA) in 1976, and the
UK passed the State Immunity Act 1978, both codifying the restrictive theory.

International Conventions: The 1926 Brussels Convention concerning state-owned vessels was
an early move toward restriction. The 2004 United Nations Convention on Jurisdictional
Immunities of States and Their Property (UNCSI) is now widely considered reflective of current
international customary law on the restrictive approach, though it is not yet in force.

Today, the doctrine continues to evolve, facing challenges regarding serious international law
violations and human rights abuses, as legal systems balance sovereign rights with
accountability.

C.) MAJOR EXCEPTIONS TO IMMUNITY (under the restrictive theory)

A state may not be able to claim immunity in a foreign court in several circumstances, including:

1. Waiver/Consent: A state can expressly or implicitly waive its immunity, often through
an international agreement or a written contract.
 2. Commercial Transactions: When a state engages in commercial activities, it is
generally not immune from jurisdiction for disputes arising from those activities. The
nature of the transaction is often the primary determining factor.
3. Employment Contracts: Immunity is generally excluded for employment contracts for
work performed in the forum state, except for employees performing functions in the
exercise of governmental authority (e.g., diplomatic staff).
4. Personal Injury and Damage to Property: States typically do not have immunity in
proceedings concerning compensation for death, injury, or damage to tangible property if
the act or omission occurred in the territory of the forum state.
5. Real Estate: Proceedings concerning a state's rights or obligations in immovable
property (real estate) situated in the forum state are generally not immune.

Immunity from Enforcement

Even if a foreign court has jurisdiction over a state, the state's property may still be immune from
seizure (execution). Generally, only property that is in use or intended for use for non-
governmental commercial purposes is subject to enforcement measures. Assets such as
diplomatic premises, military property, and central bank accounts are usually protected by a
higher standard of immunity.

The concept of state immunity in public international law has evolved significantly from an
absolute doctrine rooted in sovereign equality to a more restrictive approach driven by the rise of
international commerce and the principle of state accountability.

D.) SOURCES OF THE LAW ON STATE IMMUNITY

A. Customary International Law

Customary international law is the primary source of the doctrine of state immunity.
It evolves from consistent state practice accompanied by opinio juris (the belief that such
practice is legally obligatory).
Key Elements:
1. Practice of states — refusal of national courts to exercise jurisdiction over foreign states.
2. Belief in legal obligation — states follow the rule because they regard it as legally
required.
Case Authorities:
· The Schooner Exchange v McFaddon (1812) 11 U.S. (7 Cranch) 116:
Chief Justice Marshall held that a U.S. court had no jurisdiction over a French warship
docked in a U.S. port, establishing the principle of absolute immunity based on
sovereign equality.
· Trendtex Trading Corporation v Central Bank of Nigeria [1977] 1 QB 529:
The English Court of Appeal recognized that customary law had evolved from absolute
immunity to restrictive immunity, distinguishing between acts jure imperii (sovereign
acts) and jure gestionis (commercial acts).
· Jurisdictional Immunities of the State (Germany v Italy) [2012] ICJ Rep 99:
The International Court of Justice (ICJ) reaffirmed that state immunity is a rule of
customary international law and is procedural, not substantive.

B. International Conventions and Treaties

Several multilateral and regional treaties codify the law on state immunity:
1. The United Nations Convention on Jurisdictional Immunities of States and Their
Property (2004)
Most authoritative treaty on state immunity, though not yet in force (as of 2025).
Codifies the restrictive theory of immunity.
Key provisions:
Article 5: General rule of immunity.
Articles 10–17: Exceptions, e.g., commercial transactions, contracts of
employment, torts, and arbitration agreements.
Article 21: Property used for commercial purposes is not immune.
2. The European Convention on State Immunity (Basel, 1972)
Adopted by members of the Council of Europe.
Provides a detailed framework for restrictive immunity within Europe.
Influenced subsequent domestic statutes like the UK’s State Immunity Act 1978.
3. Other Relevant Instruments
· Vienna Convention on Diplomatic Relations (1961) — although focused on diplomatic
immunity, it reflects similar sovereign protection principles.
 · Vienna Convention on Consular Relations (1963) — provides immunity for consular
functions.

C. Judicial Decisions (Case Law)

Judicial pronouncements at both the international and domestic levels have shaped the scope
and application of state immunity.
Key Cases:
1. Al-Adsani v United Kingdom (2001) 34 EHRR 273 (ECHR):
The European Court of Human Rights upheld Kuwait’s immunity even in a torture claim,
emphasizing the supremacy of state immunity as part of international law.
2. Pinochet (No. 3) [2000] 1 AC 147 (HL):
The House of Lords held that a former head of state could not claim immunity for acts of
torture — recognizing an exception under international criminal law.
3. Republic of Argentina v NML Capital Ltd (2014) 573 U.S. 134:
The U.S. Supreme Court reaffirmed restrictive immunity under the Foreign Sovereign
Immunities Act (FSIA) and permitted limited discovery of Argentina’s commercial
assets.
3. In Ministry of Defence of the Government of the United Kingdom v Ndegwa [1983]
KLR 68, the Kenyan Court of Appeal applied the doctrine of restrictive immunity,
holding that the UK government was not immune from suit in respect of a contract of
employment.

D. Domestic Legislation
Many states have enacted national statutes codifying the rules on state immunity. These statutes
often reflect the restrictive theory, allowing exceptions for commercial and non-sovereign acts.
Examples:
1. United Kingdom – State Immunity Act 1978:
Sections 1–3: General immunity.
Sections 3–11: Exceptions (e.g., commercial transactions, employment, personal
injury).
Section 13: Protection of state property.
 2. United States – Foreign Sovereign Immunities Act (FSIA) 1976:
Establishes jurisdictional immunity of foreign states.
Defines exceptions: commercial activity (§1605(a)(2)), tortious acts
(§1605(a)(5)), waiver, and arbitration.
3. Canada – State Immunity Act 1985.
4. Kenya:
While Kenya has no specific statute on state immunity, its courts apply customary
international law and treaty principles under Article 2(5) and (6) of the Constitution
of Kenya (2010), which incorporate international law into domestic law.

E.) TYPES OF IMMUNITY

Theory I: Absolute Immunity

The first theory is absolute immunity, which holds that a state is completely immune, no matter
what kind of act it commits. This approach was common historically when states only acted in
sovereign capacities, not as traders or businesses.

The key principle is still sovereignty: no state should judge another. A famous case is The
Schooner Exchange v. McFaddon (1812) in the United States, where the court refused
jurisdiction over a foreign warship.

However, absolute immunity has been criticized because it can lead to unfair outcomes, such as
when a state enters a commercial deal and then defaults.

Theory II: Restrictive (Qualified) Immunity

As the world became more interconnected, states started doing business, buying, selling,
borrowing, and trading. The absolute rule became too rigid, leading to the restrictive theory of
immunity.

Under this view, immunity applies only to sovereign acts (acta jure imperii) but not to
commercial or private acts (acta jure gestionis). This distinction allows for fairness while still
protecting true governmental functions.

Some landmark cases include Trendtex Trading Corp. v. Central Bank of Nigeria2 in the UK and
Republic of Argentina v. Weltover, Inc.3 in the US.

INTERNATIONAL INSTRUMENTS AND EVOLUTION

Historically, absolute immunity dominated during the 19th and early 20th centuries. However,
with the rise of international trade, many countries moved toward restrictive immunity.

This shift was formalized through international agreements like the European Convention on
State Immunity (1972) and the UN Convention on Jurisdictional Immunities of States and Their
Property (2004).

Recently, even China adopted a new Foreign State Immunity Law in 2024, marking a move from
absolute to restrictive immunity.

CHALLENGES AND MODERN ISSUES

Even though restrictive immunity is now dominant, several challenges remain:

Enforcing judgments against state property is still very difficult.

Distinguishing between sovereign and commercial acts can be hard.

Different countries interpret immunity differently, leading to inconsistency.

Some states require an explicit waiver of immunity before entering contracts.

2
Trendtex Trading Corp. Vs Central Bank of Nigeria (1977)
3
Republic of Argentina Vs Weltover, Inc. (1992)
These issues make state immunity one of the most complex and evolving areas of international
law.

Conclusion

To conclude, state immunity is rooted in the respect for sovereignty and equality among nations.
However, as states increasingly act in commercial ways, international law has adapted through
the restrictive theory.

Absolute immunity protected sovereignty, but sometimes at the cost of justice. Restrictive
immunity aims to balance both sovereignty and fairness.

F.) WHO IS PROTECTED UNDER STATE IMMUNITY

State immunity extends beyond the state as an abstract entity and covers a range of actors who
perform functions attributable to the state. The scope of protection is determined by international
law, especially the distinction between sovereign/public acts (jure imperii) and
commercial/private acts (jure gestionis). Those protected include:

1. The Sovereign State as a Legal Person

The primary subject of state immunity is the state itself. A sovereign state cannot be subjected to
the jurisdiction of another state’s courts without its express consent. This protection flows from
the principle of sovereign equality, which holds that one sovereign cannot sit in judgment over
another.

2. Government Organs, Ministries, and Departments

State immunity extends to institutions through which the state operates—such as ministries,
departments, and central government agencies. When these bodies act in a sovereign capacity,
their conduct is treated as the conduct of the state, and they therefore benefit from immunity.

3. State Officials Acting in an Official Capacity

Officials of the state enjoy functional immunity (immunity ratione materiae) for acts performed
in the course of their official duties. This protection applies even after the official has left office
because the immunity attaches to the nature of the act, not the individual. Acts carried out on
behalf of the state are thus insulated from foreign jurisdiction.

4. Heads of State, Heads of Government, and Certain Senior Officials

Sitting Heads of State, Heads of Government, and Foreign Ministers benefit from personal
immunity (immunity ratione personae). This form of immunity is broader and protects them from
both civil and criminal proceedings in foreign courts for the duration of their tenure, including
for private acts. It is granted to preserve the effective functioning of the state at the highest level.

5. State-Owned Enterprises (SOEs) and Agencies

State-owned corporations may claim immunity only when they act in a sovereign or
governmental capacity. When they participate in commercial transactions—such as trading
goods, offering services, or entering contracts—they are treated as commercial actors and cannot
rely on immunity. The determining factor is the nature of the act, not the identity of the entity.

6. Diplomatic Missions and Consulates (Related but Distinct)

Although governed primarily by the Vienna Conventions, diplomatic missions are considered
extensions of the state and enjoy immunities with respect to their premises, property, and official
acts. Their inclusion reflects the broader principle that organs performing sovereign functions
should be protected from foreign jurisdiction.

G.) THE DIFFERENCES BETWEEN DIPLOMATIC AND STATE IMMUNITIES

1. Definition and Nature

 State Immunity:

Refers to the exemption of a sovereign state and its property from the jurisdiction of
another state’s courts without consent. It is an institutional immunity enjoyed by the state
itself, based on the principle of sovereign equality.

→ It applies to the state as a legal entity.

  Diplomatic Immunity:

Refers to the privileges and immunities granted to diplomatic agents, their families, and
mission premises to ensure the effective performance of diplomatic duties in a foreign
country. It is personal in nature, attached to the individual diplomat.

→ It applies to persons representing the state.

2. Legal Basis

 State Immunity:

Rooted in Customary International Law, later codified in the UN Convention on

Jurisdictional Immunities of States and Their Property (2004) and reflected in domestic
statutes like the UK State Immunity Act (1978) and the U.S. Foreign Sovereign
Immunities Act (1976).

 Diplomatic Immunity:

Codified under the Vienna Convention on Diplomatic Relations (VCDR), 1961, and the
Vienna Convention on Consular Relations (VCCR), 1963).

These conventions lay out the privileges, immunities, and duties of diplomats in the host
state.

3. Beneficiaries

 State Immunity:

Enjoyed by the sovereign state, its governmental organs, and state agencies acting in a
sovereign capacity.

 Diplomatic Immunity:
 Enjoyed by diplomatic agents, their family members, and certain mission staff, provided
they are not nationals or permanent residents of the receiving state.

4. Extent and Scope of Immunity

 State Immunity:
o Restrictive immunity applies in modern law:
 Immunity for sovereign or public acts (acta jure imperii).
 No immunity for commercial or private acts (acta jure gestionis).
o Applies mainly to civil and administrative jurisdiction, not criminal matters.
 Diplomatic Immunity:
o Absolute immunity from the host state’s criminal jurisdiction.
o Limited immunity from civil and administrative jurisdiction, except in cases such
as:
 Private immovable property.
 Succession matters.
 Private commercial activity outside official functions.

5. Purpose and Rationale

 State Immunity:

Ensures respect for sovereign equality and prevents interference in another state’s
internal affairs. It preserves the dignity and independence of states in the international
system.

 Diplomatic Immunity:

Ensures unhindered performance of diplomatic functions, protecting diplomats from

political pressure or harassment by the host state, thereby maintaining peaceful
international relations.

6. Duration
  State Immunity:
 Exists permanently as long as the state remains sovereign. The immunity does not depend
on time or location.
 Diplomatic Immunity:

Exists only during the diplomat’s official posting. After the posting ends, immunity
continues only for official acts performed in the course of duty (immunity ratione
materiae).

7. Waiver and Limitations

 State Immunity:

A state may expressly or implicitly waive its immunity — for example, by entering into a
contract containing a jurisdiction clause or by appearing before a foreign court.

 Diplomatic Immunity:

Can be waived only by the sending state, not by the diplomat personally, and the waiver
must be express (Article 32 of the VCDR).

8. Key Case Law

 State Immunity:
o The Schooner Exchange v. McFaddon (1812, U.S.): established the principle of
absolute immunity.
o Trendtex Trading Corporation v. Central Bank of Nigeria (1977, UK): affirmed
the modern restrictive theory.
o Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening)
(ICJ, 2012): reaffirmed state immunity even in cases involving serious human
rights violations.
 Diplomatic Immunity:
 o United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran4 ): violation
of diplomatic immunity by Iran’s seizure of the U.S. embassy.
o R v. Bartle ex parte Pinochet (No. 3)5 : distinguished between personal and
functional immunity for former heads of state.
o Republic of Congo v. France6: reaffirmed immunity of foreign officials for acts
performed in their official capacity.

H.) SIMILARITIES BETWEEN DIPLOMATIC AND STATE IMMUNITIES

1. Rooted in Sovereign Equality

Both doctrines are founded on the principle of sovereign equality of states under Article 2(1) of
the UN Charter. The idea is that one sovereign state should not sit in judgment over another or its
representatives

2. Aim to Ensure Smooth International Relations

Both immunities exist to promote friendly relations among states and ensure the effective
conduct of international affairs without interference from domestic courts of other states. They
preserve respect and reciprocity in international dealings

3. Immunity from Jurisdiction

Both grant immunity from the jurisdiction of foreign courts: State immunity protects the state
and its organs. Diplomatic immunity protects diplomatic agents (such as ambassadors)
representing the state.

4. Codified in International Conventions

Both are codified and recognized under major international treaties:

4
US Vs Iran (ICJ1980)
5
R Vs Bartle ex parte Pinochet (UK 1999)
6
Republic of Congo v. France (ICJ 2008)
State immunity → UN Convention on Jurisdictional Immunities of States and Their Property
(2004). Diplomatic immunity → Vienna Convention on Diplomatic Relations (1961). Both
conventions reflect customary international law.

5. Limited or Restricted in Scope

Both immunities are not absolute: State immunity no longer applies to commercial or private acts
(acta jure gestionis). Diplomatic immunity can be waived by the sending state or terminated
when the diplomat’s functions end.

6. Functional Necessity Principle

Both are justified by functional necessity — they exist not for personal benefit but to enable
effective performance of state functions in the international arena.

7. Recognition in Domestic Courts

Many national courts recognize and enforce both immunities, often guided by customary
international law and statutory incorporation.

8. Immunity Does Not Mean Impunity

Both doctrines acknowledge that immunity is procedural, not substantive — meaning it prevents
prosecution in foreign courts, not accountability altogether. For example, a diplomat can be tried
in their home country after being recalled. A state may face international responsibility through
diplomatic or international legal mechanisms.

I.) CONCLUSION

State immunity remains a vital doctrine balancing sovereignty and justice in international
relations. Modern practice favors restrictive immunity, ensuring that while states remain
protected in their sovereign functions, they are still accountable for commercial or private acts.