As a consequence of independence, territorial supremacy and equality, a state enjoys immunity from the exercise of jurisdiction (legislative, executive, or judicial) by another state, unless it has been given consent, waived its immunity, or voluntarily submitted to the jurisdiction of the court concerned. Neither may its public property be attached or taxed. nor its public vessels be boarded, arrested or sued. This is based on the principle of par in parem non habet imperium. The state's immunity extends to the Head of State who is the personification of the state.
The immunity also extends to diplomatic personnel of the United Nations, its organs and specialized agencies, and to international organizations. This immunity, however, is recognized only with respect to sovereign or public acts of the state and can not be invoked with respect to private or proprietary acts. Neither may this immunity be invoked when the foreign state sues in the courts of another state, for then it is deemed to have submitted itself to the ordinary incidents of procedure and thus, a counterclaim may be validly set up against it. Jurisdiction
Jurisdiction is the power or authority exercised by a state over land, persons, property, transactions, and events. The basic question of jurisdiction centers upon which state has sovereignty or legal control over land, persons, ships at sea, airships in flight, property, transactions or event, in various situations. There are five theories which answer this question. First, the territorial principle which says that the state may exercise jurisdiction only within its territory. Exceptionally, it may have jurisdiction over persons and acts done outside its territory depending on the kind of jurisdiction it invokes.
Second, the nationality principle which says that the state has jurisdiction over its nationals anywhere in the world based on the theory that a national is entitled to the protection of the state wherever he may be, and thus, is bound to it by duty of obedience and allegiance, unless he is prepared to renounce his nationality. Third, the protective principle which says that the state has jurisdiction over acts committed abroad by nationals and foreigners which are prejudicial to its national security or vital interests.
Fourth, the principle of universality which says that the state has jurisdiction over offenses considered as universal crimes regardless of where committed and who committed them. Universal crimes are those which threaten the international community as a whole and are considered criminal offenses in all countries. And fifth, the principle of passive personality which says that the state exercises jurisdiction over crimes against its own nationals even if committed outside its territory.
All these principles may be resorted to by a state in order to acquire jurisdiction over a certain person or case. Exemptions from Jurisdiction There are many exemptions to the exercise of jurisdiction of a state over a person or a case. They will be discussed here. One exception, as already discussed, is state immunity which is based on the principle 'par in parem non habet imperium' which means a sovereign has no authority over another sovereign. As also already discussed, this exemption is also extended to the heads of states as well as to certain entities with international personalities.
A corollary to this doctrine is the 'Act of State' doctrine which means that since a state is sovereign in its own sphere, other states should not inquire into the legal validity of the public acts of that state. Second is diplomatic immunity which is that part of customary international law which grants immunity to diplomatic representatives in order to uphold their dignity as representatives of their respective states and to allow them free and unhampered exercise of their functions.
This immunity covers personal inviolability which means that the diplomatic representative shall not be liable to any form of arrest or detention. This immunity also covers the inviolability of the premises and archives of the diplomatic mission, the right of an envoy to communicate with his government fully and freely, immunity from local jurisdiction and legal processes in criminal, civil and administrative cases, and exemption from taxes and customs duties (1961 Vienna Convention on Diplomatic Relations). However, consular officials have a narrower scope of exemptions compared to that granted to diplomatic representatives.
Under the 1963 Vienna Convention on Consular Relations, consuls are allowed freedom of communication in cipher or otherwise, inviolability of archives, but not of the premises where legal processes may be served and arrests made. They are also exempt from local jurisdiction for offenses committed in the discharge of official functions but not for other offenses except minor infractions, from testifying on official communications or on matters pertaining to consular functions, from taxes, customs duties, and military or jury service.
Third is the immunity of the United Nations, its organs and specialized agencies, and other international organizations and its officers. As mentioned earlier, their immunity is the same as that extended to a state. Under Article 105 of the UN Charter, the organization, officers, representatives of member-states, shall enjoy such privileges and immunities as are necessary for the independent exercise of their functions.
The reason for the grant of privileges and immunities to international organizations, its officials and functionaries is to secure them legal and practical independence in fulfilling their duties and to shield the affairs of international organizations, in accordance with international practice, from political pressure or control by the host country to the prejudice of member-states, and to ensure the unhampered performance of their functions (Convention on the Privileges and Immunities of the United Nations; Convention on the Privileges and Immunities of Specialized Agencies of the UN).
Fourth is the exemption from local jurisdiction of foreign merchant vessels exercising the right of innocent passage or arrival under stress. Innocent passage is navigation through the territorial sea of a state for the purpose of traversing that sea without entering internal waters, or of proceeding to internal waters, or making for the high seas from internal waters, as long as it is not prejudicial to the peace, good order or security of the coastal state.
Arrival under stress, or involuntary entrance, may be due to lack of provisions, unseaworthiness of the vessel, inclement weather, or other cases of force majeure such as pursuit by pirates. Fifth is the exemption of warships and other public vessels of another state operated for non-commercial purposes. They are generally immune from local jurisdiction under the fiction that they are “floating territory” of the flag state (Schooner Exchange vs. MacFaddon,7 Cranch 116). Their crew members are immune from local jurisdiction when on shore duty but this immunity will not apply if the crew members violate local laws while on furlough or off-duty.
And sixth, foreign armies passing through or stationed in the territory with the permission of the state are exempt from local jurisdiction. In conclusion, to avoid being placed under the local jurisdiction of a state, a defendant must claim any of these immunities. He must ask his state to claim the immunity for him because in the international setting, he has no personality to make such claim. And in order for a court to acquire jurisdiction over a person or over a case which has an international complexion, it must justify its exercise of jurisdiction under the principles mentioned under the subheading 'jurisdiction'.