Foreign Official Immunity in Selective Common Law Jurisdictions: Jus Cogens Violations and the Executive Branch’s Intervention

Anglo-Sakson Hukuku Bağlamında Yabancı Devlet Görevlilerinin Yargı Bağışıklığı: Jus Cogens İhlalleri ve Yürütmenin Müdahalesi

Ahmet DÜLGER

With regard to civil law cases, foreign official immunity corresponds to the immunity of foreign government officials before the courts of foreign states when they were sued for compensation due to their acts. While government officials act within their official authorization, they may be considered immune from foreign state courts’ jurisdiction. Officials enjoy the immunity for any act subject to certain exceptions. Violation of jus cogens norms can be considered as one of the exceptions to that rule. Principles of international law such as life, physical and mental security, and right to property, the prohibition against torture, genocide, slavery, murder or disappearance of individuals, cruel, inhuman, or degrading treatment or punishment, and prolonged arbitrary detention can be listed as the rules of jus cogens. Despite lack of widely recognized rule on foreign official immunity in case of a jus cogens violation, officials should not hold such immunity from jurisdiction in case of such violations. Different legislations and case law of different countries including Samantar and Jones cases are useful in understanding the concept. Executive branch’s role in dictating on the courts about the state’s position regarding the immunity of foreign states and their officials also represents the current international practice.

Foreign Official Immunity, Jurisdiction, Jus Cogens, Immunity of State, Absolute State Immunity, Restrictive State Immunity.

Özel hukuk davalarına ilişkin olarak, yabancı devlet görevlilerinin yargı bağışıklığı, yabancı devlet görevlilerinin fiillerinden dolayı kendilerine karşı tazminat davası açıldığında yabancı devlet mahkemeleri önünde yargılamadan bağışık olmalarını ifade eden ve devletlerin yargı bağışıklığına nispeten daha genç bir kavramdır. Devlet görevlileri resmi yetkileri dahilinde hareket ederken, yabancı devlet mahkemelerinin yargı yetkisinden bağışık olarak kabul edilebilirler. Yabancı devlet görevlileri, belirli istisnalara tabi olmak kaydıyla, görevleri çerçevesinde aldıkları kararlar bakımından bağışıklıktan yararlanırlar. Jus cogens normlarının ihlali, bu kuralın istisnalarından biri olarak kabul edilebilir. Yaşam hakkı, fiziksel ve zihinsel güvenlik ve mülkiyet hakkı gibi uluslararası hukukun genel olarak kabul edilmiş ilkeleri ile işkence, soykırım, kölelik, insanların öldürülmesi veya kaçırılması, zalimane, insanlık dışı veya aşağılayıcı muamele veya cezanın yasaklanması ve uzun süreli keyfi gözaltı gibi yasaklar jus cogens kuralları olarak sayılabilir. Bir jus cogens ihlali durumunda yabancı devlet görevlilerinin bağışıklığı konusunda genel olarak kabul edilen bir kural olmamasına rağmen, söz konusu görevliler bu tür ihlalleri durumunda yargı bağışıklığına sahip olmamalıdır. Samantar ve Jones davaları da dahil olmak üzere farklı ülkelerin çeşitli mevzuatları ve içtihatları bu konuyu incelemek amacıyla seçilmiştir. Yürütme organının, yabancı devletlerin ve görevlilerinin bağışıklığına ilişkin devletin politikası hakkında mahkemelere talimat verme imkânı da mevcut uluslararası uygulamaları göstermek için incelenmiştir.

Yabancı Devlet Görevlilerinin Bağışıklığı, Yargı Yetkisi, Jus Cogens, Devletin Yargı Bağışıklığı, Mutlak Yargı Bağışıklığı, Sınırlı Yargı Bağışıklığı.

Introduction

The immunity of states before the courts of foreign states is governed by both international and domestic legislations, and customary international law. Today, it is widely accepted that the immunity is involved in a restrictive theory of state immunity (sovereign immunity). However, the immunity of foreign state officials is not yet clearly structured under international law. While some argue that the immunity of state officials based on the unlimited immunity of state, others apply separate restrictions to the official immunity.¹

I argue in this Article that state officials shall hold such immunity from the jurisdiction of foreign state courts for their acts which are conducted under the ‘official authorization’. As long as the actions of the officials are performed upon the authorization of state, state officials shall enjoy the immunity for any act. Indeed, exceptions to the immunity apply. With that regard, it should be noted that in the absence of a clear exception to the foreign official immunity in the cases of jus cogens norms violations, it is difficult to conclude that officials do not hold such immunity from jurisdiction for such violations. Establishing a legal basis for abrogating the immunity for jus cogens violations would be the appropriate solution under international law to ensure protection for such universal norms. This Article examines the texts of different legislations and case law of selective common law countries. Further, the idea of that executive branch can dictate on courts its position regarding the immunity of foreign states and their officials is rejected. Rather, this Article concludes that judicial branch should make its own reasoning based on the current laws and precedent as well as interpretation methods.

Section One explores the general framework of the foreign sovereign immunity from jurisdiction. The historical development of the state immunity and the distinction between absolute and restrictive theories will be explained. In Section Two, the examples of different applications of state immunity principle to the issue of foreign official immunity will be examined through case law of the United States, United Kingdom, Canada, and European Court of Human Rights² . This section concludes with the discussion of the effects of jus cogens violations on the status of state official immunity, and the interventions of the executive branch in the decision of courts.

I. Foreign Sovereign Immunity

Jurisdiction is the reflection of state’s sovereignty. A state has jurisdiction against anybody and anything including the foreigners who are even temporarily residing within its borders.³ Further, as it is established in Lotus case, in certain circumstances a state can claim jurisdiction for incidents occurred outside of its territory.⁴ For instance, a tort claim occurred abroad can be brought, under certain circumstances, before the national courts which have jurisdiction.

International law includes rules for the jurisdiction of states in international cases. These rules provide equal rights of jurisdiction to each sovereign state. On the other hand, certain exceptions and restrictions to the jurisdiction of states are also determined by international law.⁵ In particular, customary international law and international conventions are the sources of such exceptions that reveal the rules for immunity from jurisdiction.⁶ United Nations Convention on Jurisdictional Immunities of States and Their Property determines state immunity as a rule of customary international law.⁷ Article 5 provides that “a State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention.”

Immunity from jurisdiction is a restriction on the state’s judiciary power which is exercised, in principle, fully in the domestic sphere.⁸ With that regard, immunity from the jurisdiction of national courts means that one state cannot enforce its judiciary rights and power against another sovereign state in accordance with international law.⁹ For a state to hear a case which includes foreign element would only be possible in case of an absence of a rule that restricts state’s jurisdiction. Another possibility to hear the case against an entity who enjoys immunity is through a waiver of immunity.¹⁰

Moreover, immunity from jurisdiction also constitutes an instance where the right to legal remedies and access to justice, which are protected by constitutions and international conventions, are restricted.¹¹ Courts must reject on procedural grounds the cases initiated against the persons who are entitled to immunity. With that regard, such restriction is argued as constituting a violation of Article 6 of European Convention on Human Rights¹² on the grounds that it is incompatible with the persons’ right to fair trial. Therefore, immunity from jurisdiction should be applied in a less strict way which does not mean an obstacle to the fair trial.

The immunity that is recognized by international law has two dimensions. First, the term immunity defines ‘the immunity from jurisdiction’ which means being immune from being sued before the state courts. Another dimension of immunity is ‘the immunity from execution’ which protects the subject from the execution of any decision revealed by the judicial system of the state. For the purpose of this paper, the term ‘immunity’ will be used as indicating the ‘immunity from jurisdiction’.

As a living concept, the features of as well as the exceptions to the state immunity evolves over the time.¹³ In the beginning of the development of the immunity principle, it was only accepted for the heads of states.¹⁴ Presidents, prime ministers as the top level official were having such immunity.¹⁵ Later on, the scope of persons who enjoy such immunity was enlarged to include the legal personality of the state.¹⁶ This was the result of varied levels of government structure and relatedly the complex administration powers separated to different organs of state. Today, it is mostly accepted that foreign states and the persons who are entitled to fully represent the state such as president, prime minister, and minister of foreign affairs enjoy such immunity. Further, the officials who are entitled to limitedly represent the state such as diplomatic officials, the military officials, and international organizations enjoy the immunity before foreign states’ courts.¹⁷

The Absolute Immunity

The absolute immunity is ratione personae which derives from the legal character of the defendant in a court case. Foreign states and their representatives, officials could not be sued in the courts of another state.¹⁸ Regardless of the nature of action taken by states, they were deemed immune for any of their activities. Thus, a sovereign is completely exempt from foreign jurisdiction in all cases, whatever the circumstances.¹⁹ This understanding of state immunity is established upon the principle of equality of sovereign states. In other words, sovereign equality²⁰ results in the fact that one state can not be the subject of another state’s jurisdiction. The principle par in parem non habet imperium is the recognized rule of international law which reveals that a state should not exercise jurisdiction over another state.²¹

The absolute sovereign immunity was confirmed in several court decisions including French Court de Cassation’s Casaux decision²² in 1849 and British Supreme Court’s the Parlement Belge verdict²³ in 1879. In Casaux, the Court de Cassation concluded that Spain enjoys state immunity and could not be sued in French courts. The Court held that the sovereignty of the state is one of the most respected principles in international law and therefore, such principle prevents bringing a case against the foreign state in the national courts.²⁴ In the Parlement Belge, British Supreme Court explained the independence of every sovereign state as the reason for not exercising its territorial jurisdiction over another state and its officials.²⁵

Restrictive State Immunity

During the trade liberalization movements in the 20th century, it was argued that absolute state immunity caused distortion of competition among the actors of international trade.²⁶ Since the state parties and governments enjoyed state immunity, they could not be judged before national courts due to the breaches of their commitments. The persons who sued governments were strictly restricted to have access to fair trial in their commercial disputes.²⁷ Therefore, the doctrine of absolute immunity is replaced by the restrictive state immunity theory.²⁸

Under that principle, unless certain exceptional circumstances occurred, one sovereign state could not use its judicial authority over another.²⁹ These exceptional circumstances reveal that states are only accepted immune for their sovereign acts (acta jure imperii).³⁰ In other words, states can not claim immunity for their private/commercial acts (acta jure gestionis).³¹ Therefore, many states have begun to adopt the doctrine of restrictive state immunity, which is available for government activities but not available if a state engages in commercial activity which are reflected as the difference between acta jure imperii and acta jure gestionis.³² The significant question on the determination of restrictive immunity is how would it be determined whether the action of state is inherently commercial or it is done as a sovereign act of state?

It should be noted that the nature of relationship and transaction will be determined according to the rules of lex fori which is the law of the forum state.³³ The legal classification of lex fori will determine the nature of action.³⁴ Thus, in case the action of state is accepted as deriving from the distinction of civil/private law and the action could not be deemed as the result of state’s sovereign power, it is a civil law action.³⁵ Therefore, it would not fall within the scope of immunity. On the other hand, the action of state that is deemed to be the legitimate result of state’s sovereign right will fall within the scope of act of state. Such action is carried out to fulfill the missions and responsibilities of state as a sovereign.

To show the application of restrictive immunity theory and the consequences of the lack of exceptions, Bouzari case will be examined. In Bouzari v. Iran³⁶ , the plaintiff brought an action in Canada against Iran and sought damages for kidnapping, false imprisonment, assault, torture, and death threats. However, the motion judge found that the action was barred by the State Immunity Act (SIA)³⁷ and dismissed the case. Further, the Court of Appeal for Ontario held that the action against state is barred by the SIA and dismissed the appeal.³⁸ Under the Section 6 of the SIA, the state immunity is diminished for some situations that occur in Canada as it follows: