Immunity of States in International Law | L' immunité de l'etat | Lex Animata | Hesham Elrafei

State Immunity in International Law explained FR: L' immunité de l'etat en droit international Animated explained video legal design the international community is made up of equal and independent sovereign States, organized on a horizontal basis. As one sovereign State cannot be tried in the courts of another ( par in parem non habet imperium ) , a State can claim immunity from the exercise of jurisdiction by another State, State immunity is, therefore, a procedural shield, that protects a State and its property from legal action abroad, as it it stops the foreign courts from hearing the case, without affecting the validity of the substance of the claim itself. With the increasing engagement of States in commercial transactions, there was a need to secure their accountability in business transactions, and to limit their Absolute immunity when dealing with non-State parties. Accordingly, international law endorsed the relative approach to State immunity in civil cases, which draws a distinction between: Acts of States performed in a sovereign capacity (jure imperii)—as opposed to commercial Activities undertaken by States ( jure gestionis), (jure imperii) State immunity covers the acts of States performed by the government in exercise of its sovereign authority As a result, public acts like waging war or making political decisions, are are immune from the jurisdiction of foreign courts. (jure gestionis) On the other side, States Commercial transactions are not immune from foreign courts, Like a public airliner or a public factory, or when a State oil corporation sells oil in international markets, the state here is involved in commercial activity and therefore do not enjoy state immunity. In the case of civil suits, the immunity will depend on the nature of the conduct as commercial or sovereign act. Following the invasion of Kuwait, Iraq ordered its national carrier to transport Kuwait Airways aircraft to Iraq. The UK court rejected the Iraqi airway defense that the taking of the aircraft was a public act done in the time of war and denied that it enjoys a state immunity. While Immunity belong to the State, Its effect and the privilege afforded by an immunity encompasses a State’s property as well as the person of its agents. In respect of criminal suits (or prosecution), the culprit will be covered by immunity whether by virtue of his status (ratione personae) personal immunity or by the sovereign function of the contested conduct (ratione materiae). functional immunity Functional immunity provides protection to the function, rather than the individual behind the act. Because States perform acts through their agents, the immunity covering said acts also covers the persons performing them. While, Serving Heads of state enjoy absolute immunity from the exercise of criminal jurisdiction by a foreign court, functional immunity also protects former Head of States for the legitimate governmental functions they performed during their term of office. Personal immunities shield a limited list of persons from the jurisdiction of foreign courts, irrespective of whether the act is a governmental or a private act, like heads of State, heads of government, foreign ministers, and ambassadors or heads of diplomatic missions. Personal Immunity lasts as long as the official maintains his position, following which the immunity is lost and the person may lawfully be sued or prosecuted in respect of all acts done during his or her tenure in office. In the Pinochet case, Spain requested the UK to extradite the former Chiliean president for acts of torture committed during his period of office. The British court held that As Pinochet was a former Head of State, torture could not be classified as a legitimate State function, and therefore he not protected by functional immunity.

Name Immunity of States in International Law | L' immunité de l'etat | Lex Animata | Hesham Elrafei
Lex Animata Law Visualized | Hesham Elrafei
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Uploaded On Fri, Aug 13, 2021 7:29 PM
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