SOVEREIGN IMMUNITY

A. IMMUNITY OF THE FOREIGN

SOVEREIGN FROM MUNICIPAL COURTS
1. The basic rule in common law was that a foreign sovereign or sovereign foreign state was immune from the
jurisdiction of the English courts, though the court would take jurisdiction if the sovereign submitted thereto.
In International plane, States were empowered to sue each other but in Municipal Court could not assume
jurisdiction over a foreign State.

2. Classically the common law subscribed to the absolute theory of sovereignty.

3. The relatively uncomplicated role of the sovereign and of government in the eighteenth and nineteenth
centuries logically gave rise to the concept of absolute immunity, whereby the sovereign was completely
immune from foreign jurisdiction in all cases regardless of circumstances. However unparalleled growth in
the activities of the state, especially with regard to commercial matters, has led to problems and in most
countries to a modification of the above rule. The number of governmental agencies and public corporations,
nationalized industries and other state organs created a reaction against the concept of absolute immunity,
partly because it would enable state enterprises to have an advantage over private companies.
4. In 1952, in the Tate letter, the United States Department of State declared that the increasing involvement of
governments in commercial activities coupled with the changing views of foreign states to absolute immunity
rendered a change necessary and that thereafter ‘the Department [will] follow the restrictive theory of sovereign
immunity’

5. With the adoption of the restrictive theory of immunity, the appropriate test becomes whether the activity in
question is of itself sovereign (jure imperii) or non-sovereign (jure gestionis). In determining this, the
predominant approach has been to focus upon the nature of the transaction rather than its purpose.

6. Many nations ( most notably the United States) have never been entirely persuaded by the doctrine of absolute
immunity, but it was for long a foundational principle of English law. However, this whole question was the
subject of the European Convention on State Immunity (1972) which led to the law being placed on a statutory
basis by the State Immunity Act 1978. It adopted a more “conditional immunity” approach.
7 Exceptions from immunity : The State Immunity Act 1978 provides a substantial list of exceptions from state
immunity. Section 3 provides an exception of major significance. A foreign state is not immune as respects any
proceedings relating to a commercial transaction entered into by that state, bearing in mind the wide definition of
state already discussed. Until fairly recently, the position at common law was that a foreign state was immune
even with regard to its purely commercial activities.

8 Commercial transaction” is defined to include not only contracts for the supply of goods or services but also the
provision of finance through loans and the like, and any guarantee or indemnity in respect of such transactions.
Even more widely it extends to “any other transaction or activity (whether of a commercial, industrial, financial,
professional or other similar character) into which a state enters or in which it engages otherwise than in the
exercise of sovereign authority”.

9 This would include contracts made in the exercise of sovereign authority to be performed here, such as contracts
for the building of warships. There must also be “proceedings relating to” a commercial transaction. This refers to
claims arising out of the transaction.
10. An important practical exception from immunity is that relating to ships in use, or intended for use, for
commercial purposes. In the case of such ships, there is no immunity in Admiralty proceedings (or proceedings
on a claim which could be made the subject of Admiralty proceedings) relating to an action in rem against a ship
belonging to the foreign state or to an action in personam for enforcing a claim in connection with such a ship.

11. Case Law

In Kuwait Airways Corporation v. Iraqi Airways Co. [2002] UKHL 19, the House of Lords, in discussing the position of the Iraqi
Airways Company (IAC), analyzed the relevant transactions as a whole but felt able to separate out differing elements and treat
them discretely.
In brief, aircraft of the plaintiffs (KAC) had been seized by IAC consequent upon the Iraqi invasion of Kuwait in 1990 and pursuant
to orders from the Iraqi government. Revolutionary Command Council resolution 369 purported to dissolve KAC and transfer all of
its assets to IAC. From that point on, IAC treated the aircraft in question as part of its own fleet. The issue was whether the fact that
the initial appropriation was by governmental action meant that the plea of immunity continued to be available to IAC.

The House of Lords held that it was not. Once resolution 369 came into effect the situation changed and immunity was no longer
applicable since the retention and use of the aircraft were not acts done in the exercise of sovereign authority. A characterisation of
the appropriation of the property as a sovereign act could not be determinative of the characterisation of its subsequent retention and
use.
B. SOVEREIGN IMMUNITY IN INDIA
1. In India the since the days of the East India company has made a distinction between sovereign
and non sovereign functions of the state . P and O Steam Navigation Co. v. Secretary of State
for India (1861) 5 Bom. H.C.R. App. I,p.1. Though this distinction is arguably with reference to
vicarious liability of the State , it might still be a workable distinction.

2. The CPC sets out the rules for sovereign immunity

According to section 86 of the CPC, 1908:
• 1) No foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the
Central Government certified in writing by a Secretary to that Government : Provided that a person may, as a
tenant of immovable property, sue without such consent as aforesaid [a foreign State] from whom he holds or
claims to hold the property.
• (2) Such consent may be given with respect to a specified suit or to several specified suits or with respect to all
suits of any specified class or classes, and may specify, in the case of any suit or class of suits, the Court in which
[the foreign State] may be sued, but it shall not be given, unless it appears to the Central Government that [the
foreign State]— (a) has instituted a suit in the Court against the person desiring to sue [it], or
• (I) No
• (I) No
(b) by 1 [itself] or another, trades within the local limits of the jurisdiction of the Court,
or (c) is in possession of immovable property situate within those limits and is to be sued with reference to such
property or for money charged thereon, or (d) has expressly or impliedly waived the privilege accorded to 2 [it] by
this section.
3 [(3) Except with the consent of the Central Government, certified in writing by a Secretary to that Government,
no decree shall be executed against the property of any foreign State.]
(4) The preceding provisions of this section shall apply in relation to— 4 [(a) any ruler of a foreign State;] 5 [(aa)]
any Ambassador or Envoy of a foreign State; (b) any High Commissioner of a Commonwealth country; and (c) any
such member of the staff 6 [of the foreign State or the staff or retinue of the Ambassador] or Envoy of a foreign
State or of the High Commissioner of a Commonwealth country as the Central Government may, by general or
special order, specify in this behalf, 6 [as they apply in relation to a foreign State]. 7
[(5) The following persons shall not be arrested under this Code. namely: — (a) any Ruler of a foreign State; (b)
any Ambassador or Envoy of a foreign State; (c) any High Commissioner of a Commonwealth country ; (d) any
such member of the staff of the foreign State or the staff or retinue of the Ruler, Ambassador or Envoy of a foreign
State or of the High Commissioner of a Commonwealth country, as the Central Government may, by general or
special order, specify in this behalf.
(6) Where a request is made to the Central Government for the grant of any consent referred to in subsection (1),
the Central Government shall, before refusing to accede to the request in whole or in part, give to the person
making the request a reasonable opportunity of being heard.]
3. This section contains statutory provisions covering a field which otherwise would be covered by the
doctrine of immunity of a foreign state under public international law.

4. The provisions of this section deals with the matter of public policy and they are imperative and
must be observed.

5. It doesn’t apply to a suit against the agent of the foreign state in his personal capacity.

6. Section 86 applies only to suits and cannot be made applicable to insolvency proceedings initiated by
a petitioning debtor merely by reason of the fact that a sovereign prince or ruling chief is one of the
creditors.

7. India also has special rules for native princes.

87. Style of foreign Rulers as parties to suits.—The Ruler of a foreign State may sue, and shall be sued, in the name of
his State: Provided that in giving the consent referred to in section 86, the Central Government may direct that the
Ruler may be sued in the name of an agent or in any other name .

87A. Definitions of “Foreign State” and “Rulers”— (1) In this Part,— (a) “foreign State” means any State outside
India which has been recognised by the Central Government; and (b) “Ruler”, in relation to a foreign State, means the
person who is for the time being recognized by the Central Government to be the head of that State. (2) Every Court
shall take judicial notice of the fact— (a) that a State has or has not been recognized by the Central Government; (b)
that a person has or has not been recognized by the Central Government to be the head of a State.

87B. Applications of sections 85 and 86 to Rulers of former Indian States.—8 [(I) In the case of any suit by or against
the Ruler of any former Indian State which is based wholly or in part upon a cause of action which arose before the
commencement of the Constitution or any proceeding arising out of such suit, the provisions of section 85 and sub-
sections (1) and (3) of section 86 shall apply in relation to such Ruler as they apply in relation to the Ruler of a foreign
State.]
(2) In this section— (a) “former Indian State” means any such Indian State as the Central Government may, by
notification in the Official Gazette, specify for the purposes of this section; 1 *** 2 [(b) “Commencement of the
Constitution” means the 26th day of January, 1950; and (c) “Ruler”, in relation to a former Indian State, has the same
meaning as in article 363 of the Constitution. ]
8. Section 86 of the Civil Procedure Code does not speak of the jurisdictional immunity of the departments and
corporations of the foreign countries. The term suit itself is of generic application and includes consumer
actions. Economic Transport Organisation, Delhi v Charan Spinning Mills Private Limited and Anr (2010) 4
SCC 114; Ethiopian Airlines v. Ganesh Narin Saboo AIR 2011 SC 3495

9. Though the language of s.86 does not cover an arbitration clause, it is not a Waiver of State’s Immunity from
Jurisdiction. M/s Uttam Singh Duggal and Co. Pvt. Ltd. v United States of America Agency for International
Development 22 (1982) DLT 25.

10. The government, while making its assessment, is expected to holistically consider the facts and circumstances
of the case and proceed in accordance with the principles of natural justice by affording the applicant a
reasonable opportunity to be heard before refusing the consent, as provided for in section 86(6) of the CPC,
and by providing its reasons for the refusal, if any. The decision cannot be arbitrary or on whimsical grounds.
In Rita Solomon v The State of Italy (Rita Solomon) CS(OS) 1352/2013 order dated May 1st 2019
11. On 12 January 2007, India became a signatory to the UN Convention on Jurisdictional Immunities of
States and Their Property, 2004. The Convention is not in force and India is yet to enact an enabling Act.

12. The highlight of the “Convention” are the following:-

(a) The term "state" is defined broadly to include the state itself , its various organs of government, as well as
the constituent units of a federal state or the political sub- divisions of the state, agencies and
instrumentalities if "entitled to perform acts in the exercise of sovereign authority, and ... acting in that
capacity.” ( Art 2)

(b) The Convention embraces "representatives of the State acting in that capacity.“ and hence covers foreign
official immunity. (Art 2) However excluded from its purview are specialized international agreements,
that cover issues related to the privileges and immunities enjoyed by a state under international law in
relation to the functions of its diplomatic missions, consular posts, special missions, missions to
international organizations, or delegations to "organs of international organizations or to international
conferences," as well as of persons connected with them. (Art 3(1))
12(c ) The Convention doesnot apply to he privileges and immunities accorded under international law to heads
of state ratione persone (Art 3(2) or to military activities.

(d) The general rule of the convention is that a foreign state is entitled to immunity from the jurisdiction of the
forum state, and the forum state must refrain from exercising that jurisdiction in a proceeding before its courts,
unless one of the stated exceptions to that immunity.

(e) The exceptions to jurisdiction are the following (i) express Consent to Jurisdiction ( Art 7); (ii) commercial
Transactions (Articles 2(1)(c) and 2(2) r/w Article 10(1) ) ; (iii) contracts of employment (Art 11) ; (iv) torts
resulting in death, personal injury or damage to property in forum state (Art 12) ; (v) property situated in the
forum ( Art 13) ; (vi) participation in companies (Art 15) ; (vi) state-owned or -operated vessel (Art 16(1) ;
( vii) arbitration agreement pertaining to commercial matters (Art 17)

(f) The Convention is silent on the question “when and if” states may be said to have implicitly waived (or should
otherwise be deprived of) their immunity y because they acted in contravention of generally applicable norms
of international law.
12(g) Property that shall remain immune from attachment
Article 21 states that certain categories of property may not be considered "specifically in use or intended for use
by the State for other than government non-commercial purposes." Unless otherwise agreed by the defendant state,
the exempted categories are the following:
(i) property, including any bank account, which is used or intended for use in the perfor- mance of the functions of
the diplomatic mission of the State or its consular posts, special missions, missions to international organizations or
delegations to organs of international organizations or to international conferences;
(ii) property of a military character or used or intended for use in the performance of military functions;
(iii) property of the central bank or other monetary authority of the State;
(iv) property forming part of the cultural heritage of the State or part of its archives and not placed or intended to
be placed on sale;
(v) property forming part of an exhibition of objects of scientific, cultural or historical interest and not placed or
intended to be pla
C. STATE IMMUNITY AND VIOLATIONS OF
HUMAN RIGHTS
1. A particular issue has been the relationship between sovereign immunity and article 6 of the European Convention
on Human Rights specifically (and Human Rights treaties generally) which enshrines the rights of due process and
fair trial, including the right of access to a court. In Holland v. Lampen-Wolfe, [2000] UKHL 40 the House of
Lords held that recognition of sovereign immunity did not involve a violation of Article 6 since it was argued that
immunity derives from customary international law while the obligations under article 6 derived from a treaty
freely entered into by the United Kingdom. Accordingly, ‘The United Kingdom cannot, by its own act of acceding
to the Convention and without the consent of the United States, obtain a power of adjudication over the United
States which international law denies it.

2. The European Court of Human Rights in Al-Adsani v. UK (2002) 34 EHRR 273 analysed this issue, that is whether
state immunity could exist with regard to civil proceedings for torture in the light of article 6 of the European
Convention.

3. The Court noted that the grant of sovereign immunity to a state in civil proceedings pursued the legitimate aim of
complying with international law to promote comity and good relations between states through the respect of
another state’s sovereignty and that the European Convention on Human Rights should be interpreted in harmony
with other rules of international law, including that relating to the grant of state immunity
 The Case of Augusto Pinochet
On 11 September 1973, General Augusto Pinochet Ugarte assumed power in Chile as a result of a military coup that
overthrew the then government of President Allende. Pinochet was the Commander in Chief of the Chilean Army until
1974 when he assumed the title of President of the Republic. His presidency lasted until 1990 and his role as
Commander in Chief until 1998. His regime was known for its systematic and widespread violations of human rights,
with allegations of murder, torture and hostage taking of political opponents.

In 1998, during a visit to the United Kingdom for medical treatment, Pinochet was arrested by the English authorities
with a view to extraditing him to Spain where a Spanish judge had issued an international arrest warrant. His
extradition was, however, not to proceed smoothly as Pinochet applied to have the arrest warrant quashed on the
grounds that as a former Head of State he enjoyed immunity from criminal proceedings. (References taken from ICD
Website)
The matter came up before the British Judiciary in a set of three decisions namely R (Pinochet Ugarte) v Bow St Metropolitan Stipendiary
Magistrate [2000] 1 AC 61, 119 and 147
Pinochet (No 1)
By a 3–2 majority, Lord Nicholls, Lord Hoffmann and Lord Steyn ruled that Pinochet did not enjoy state immunity.

Notable passages of the judgment include the following:

“... the development of international law since the Second World War justifies the conclusion that by the time of the 1973 coup d'état, and
certainly ever since, international law condemned genocide, torture, hostage taking and crimes against humanity (during an armed conflict or in
peacetime) as international crimes deserving of punishment. Given this state of international law, it seems to me difficult to maintain that the
commission of such high crimes may amount to acts performed in the exercise of the functions of a Head of State.

... International law has made plain that certain types of conduct, including torture and hostage-taking, are not acceptable conduct on the part of
anyone. This applies as much to heads of state, or even more so, as it does to everyone else. The contrary conclusion would make a mockery of
international law.

Lord Slynn and Lord Lloyd dissented.

In R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2), a new panel of judges, composed
of Lord Browne-Wilkinson, Lord Goff, Lord Hope, Lord Hutton, Lord Saville, Lord Millett and Lord Phillips, set aside the
first judgment on the grounds that an appearance of bias had been created, following revelations that one of the judges,
Lord Hoffmann, had failed to disclose personal ties to Amnesty International, an intervener in the case against Pinochet.

In R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3), the House ruled that Pinochet did
not enjoy immunity from prosecution for torture, but only as it applied after 8 December 1988, when section 134 of the
Criminal Justice Act 1988, giving UK courts universal jurisdiction over crimes of torture, came into effect, Pinochet could
not be tried as it would constitute a retroactive law.
 Ferrini v. Federal Republic of Germany
On 23 September 1998, Luigi Ferrini took proceedings against the German Government before the Tribunal of
Arezzo, in Italy, seeking damages for the physical and psychological injury suffered as a result of his capture and
deportation. Germany pleaded jurisdictional immunity under customary international law.
On 3 November 2000, the Tribunal of Arezzo dismissed the suit for lack of jurisdiction, holding that the acts of
which Germany was accused were acts performed jure imperii. Ferrini appealed against this decision, but the Court
of Appeal of Florence confirmed the previous judgment. Ferrini challenged this second decision before the Supreme
Court (Corte suprema di cassazione) exclusively on the point of jurisdiction. ( References taken from the ICD
Website)
Legally relevant facts
Luigi Ferrini is an Italian citizen who was captured and deported to Germany by Nazi troops in August 1944, where
he was forced to work and subsequently transferred to a concentration camp until April 1945.
Court's holding and analysis
On 11 March 2004, the Italian Supreme Court reversed the Court of Appeal’s judgment and denied state immunity to
Germany. The Court thus transferred the case again to the Tribunal of Arezzo for examination of the merits.
The Italian Supreme Court held that while customary law prescribes immunity from jurisdiction of a foreign state
for acts which are the expression of its sovereign authority, such immunity should be lifted when such acts amount
to international crimes. For the Court, violations of fundamental human rights encroach upon universal values
protected by jus cogens norms, which lie at the top of the hierarchy of norms in the international legal order, and
thus take precedent over conflicting law, including state immunity. The judgment paved the way for hundreds of
damage claims against Germany in Italian courts.

Thereafter the matter went to the ICJ in Jurisdictional Immunities of the State (Germany v. Italy: Greece
Intervening) Judgment, I.C.J. Reports 2012, p. 99

Germany approached the ICJ against the decision in Ferrini and similar decisions ( all pertain to wartime atrocities
by Germany.
The decision by ICJ inter alia was pivoted on whether a more permissive exception to state immunity, by which
immunity would be lost if serious human rights violations were alleged and no reparations were forthcoming.
Italy took a three pronged defense; these defenses and ICJ’s findings are given below
A) That the gravity of the violations required elimination of state immunity.
ICJ noted that allowing a judicial enquiry into the gravity of the crime would defeat the purpose of immunity, which is
to avoid the trial process.[Additionally, that there is little support in international conventions and state practice for the
idea that severity of a crime could eliminate state immunity. The Pinochet case, was distinguished in which Augusto
Pinochet was arrested despite immunity as a head of state, by stating that Pinochet was a criminal case against an
individual, not a civil case against a state itself.

B) That not to eliminate state immunity would effectively derogate from a peremptory, or jus cogens norm.
The ICJ distinguished between procedural and substantive rules and found that there was no conflict between
substantive jus cogens prohibitions on enslavement, for instance, and procedural state immunity. It also he court
further noted that no state practice supported the argument that jus cogens rules displace immunity.
C) That immunity was lost because the claimants had no other means of redress
The ICJ distinguished between immunity and the substantive rules of international law by which Germany might still
owe reparations A finding of immunity does not equal a finding that Germany did not owe reparations.
C. THE AMERICAN APPROACH TO STATE
IMMUNITY
1. Section 1330(a) of the FSIA gives federal district courts original jurisdiction in personam against foreign states,
which are defined as including political subdivisions, agencies, and instrumentalities of foreign states. This is
distinct from the State Immunities Act that gives this discretion on the Government.

2. Apart from the usual commercial exceptions the FSIA also contains s. 1605(A)(a)(1) . That allows “money
damages against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial
killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act, if the
foreign state is designated as a state sponsor of terrorism under section 6(j) of the Export Administration Act of
1979 (50 U.S.C. App 2405(j) or Section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371).

3. The FSIA can be read with another US oddity namely Alien Tort Claims Act (ATCA) that grants to U.S.
federal courts original jurisdiction over any civil action brought by an alien (a foreign national) for a tort in
violation of international law or a U.S. treaty. The ATCA has often been invoked against foreign state agents . E.G
Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980) Court of Appeals for the Second Circuit ruled that TCA could
be used to sue a Paraguayan police officer for acts of torture that he had committed in Paraguay. The “well-
established universal” prohibition of torture under international law, the court held, must be honoured in U.S.
courts, regardless of the nationality of the victim or the perpetrator.
3. Read together the American Federal Courts have in a way weaponized jurisdiction. They are less mindful of
sovereignty., and it is possible to use law courts to attain political and strategic ends. ( The term often used is
lawfare).

4. Many civil suits have been filed under FISA against China for the release of the Covid 19 virus. It will be
interesting to see their outcome

( More on this when we do torts)

D. SOVEREIGN IMMUNITY AND
SOVEREIGN WEALTH FUNDS
1. A sovereign wealth fund is a state-owned investment fund comprised of money generated by the government,
often derived from a country's surplus reserves. SWFs provide a benefit for a country's economy and its citizens.
The funding for a SWF can come from a variety of sources. Popular sources are surplus reserves from state-owned
natural resource revenues, trade surpluses, bank reserves that may accumulate from budgeting excesses, foreign
currency operations, money from privatizations, and governmental transfer payments. In general, sovereign wealth
funds usually have a targeted purpose. Some countries have sovereign wealth funds that can be similar to venture
capital for the private sector.

2. India has one called National Investment and Infrastructure Fund (NIIF) ( capitalization approx 4 billion dollars)

3. The SWF can pose serious challenges for the doctrine of State Immunity. A SWF is both a State and a VC)

4. United Nations Convention on Jurisdictional Immunities of States generally does not address this issue.
5. Generally speaking SWFs enjoy absolute immunity from criminal prosecution. Though the topic has been
excluded from both European and UN Conventions. (also see Jones v. Ministry of Interior of Saudi Arabia [2006]
UKHL 26.)

6. Taxation is similarly excluded from the scope of UN and the European Conventions. However the provisions of
the OECD Model Tax Convention on Income and on Capital, Condensed version (“OECD Model Tax
Convention”, can be of interest.
7. First, the Model Tax Convention generally extends to a foreign State itself the benefits that tax conventions grant
to private residents of that State. This is achieved by extending the definition of “resident of a contracting State” to
the State itself.

8. National law also addresses this problem in complex ways.

9. For example France, CGI Article 131 establishes a complex regime that distinguishes between four types of
foreign state-related entities: foreign states, central banks, foreign public institutions and foreign public financial
institutions. As noted above, foreign states and central banks benefit from a statutory exemption from taxes on
passive income, subject to an exception for direct investments (which can be lifted). Generally, foreign public
institutions and foreign public financial institutions do not appear to benefit from any statutory exemptions, but
can be exempted to varying degrees by the Ministry of Finance.
10. In the UK, a recent government statement in Parliament in response to a written question about the treatment of
SWFs indicates that the policy requires that the entity constitute an “integral part” of the government in order to
benefit from the exemption.107 This appears to be long-standing government policy. Under the integral part test,
legal entities separate from the government have been excluded from the exemption even if the government owns
all of the share capital. This distinction apparently played an important role in a tax dispute with Kuwait
government-related entities, including a sovereign wealth fund, that arose over tax-exempt income from the
ownership of a 21.7% stake in British Petroleum in the late 1980s and early 1990s.

11. Competition and other regulatory acts are outside the purview of the UN Conventions. Different national laws
distinguish this differently.

12. In US the FSIA excludes punitive damages against foreign states, but not against state instrumentalities (including
state-owned companies). There was a test case being International Association of Machinists (IAM) v. OPEC, 477
F. Supp. 553 (C.D. Cal. 1979) a union brought a price-fixing suit against OPEC and its 13 member States seeking
injunctive relief and damages. But this was dismissed without addressing the FSIA issue.
13. Articles 101 and 102 TFEU apply directly to prohibit anti-competitive practices by “undertakings”.The notion of
undertaking generally includes every entity engaged in an “economic activity”. In deciding whether an entity is an
undertaking, the focus is on economic significance rather than legal structure or status. EC competition policy
applies to all undertakings irrespective of whether they are publicly or privately owned.

David Gaukrodger , Foreign State Immunity and Foreign Government Controlled Investors OECD Working Papers on
International Investment 2010/02
E. DIPLOMATIC IMMUNITY
1. The persons entitled to immunity are allocated to three categories, and the particular privileges allowed them vary
according to the category to which they belong. Any doubt as to whether a person is entitled to a privilege is
conclusively settled by a certificate given by the Secretary of State.

2. These comprise the head of the mission and the members of his diplomatic staff, as for instance, the secretaries,
counsellors and attachés. Arms control inspectors and observers are now included in the definition. Such a person
is exempt from the civil and criminal jurisdiction of the English courts in respect both of his official and private
acts, and, though he himself may institute proceedings.

3. The Vienna Convention on Diplomatic Relations, 1961 grants diplomatic agents absolute immunity from the
civil , criminal jurisdiction of the national courts except under the following conditions (Art 31) :-
(a) 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;
(b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee
as a private person and not on behalf of the sending State;
(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving
State outside his official functions.
4. Also relevant is Article 37
1.The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the
receiving State, enjoy the privileges and immunities specified in articles 29 to 36.
2. Members of the administrative and technical staff of the mission, together with members of their families forming
part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State,
enjoy the privileges and immunities specified in articles 29 to 35, except that the immunity from civil and
administrative jurisdiction of the receiving State specified in paragraph 1 of article 31 shall not extend to acts
performed outside the course of their duties. They shall also enjoy the privileges specified in article 36, paragraph 1, in
respect of articles imported at the time of first installation.

3.Members of the service staff of the mission who are not nationals of or permanently resident in the receiving State
shall enjoy immunity in respect of acts performed in the course of their duties, exemption from dues and taxes on the
emoluments they receive by reason of their employment and the exemption contained in article 33.
4.Private servants of members of the mission shall, if they are not nationals of or permanently resident in the receiving
State, be exempt from dues and taxes on the emoluments they receive by reason of their employment. In other respects,
they may enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving
State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance
of the functions of the mission.
4. The diplomatic agent however doesnot enjoy immunity from the jurisdiction of the sending state and the immunity
can be waived by the sending state ( Art 32)

5. India has given effect to this through The Diplomatic Relations (Vienna Convention) Act, 1972

6. The Vienna Convention on Consular Relations 1963 accords Consular officers and consular employees immunity
from judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of
consular functions. But they are still liable for any civil action (a) arising out of a contract concluded by a consular
officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State;
or (b) by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or
aircraft.

7. However India has ratified it , but not made any enabling legislation to support it. It has denied consular access
occasionally. (Jamal Mirza vs State; David Patrick Ward And Anr. vs Union Of India (Uoi) And Ors 1992 (2)
SCALE 442)
END OF SLIDE 6