The individual as beneficiary of state immunity: problems of the attribution of ultra vires conduct.

Author:Tomonori, Mizushima

    It is a truism among international lawyers that the state immunity principle might bar a domestic legal action brought against a foreign state. There has been much discussion about the extent to which a foreign state is immune from domestic jurisdiction. No matter what answer is given to this still controversial issue, the fact remains that a state can act only through natural persons, who do not ordinarily enjoy immunity from suit. Partly for this reason, several actions have been brought against individuals who acted on behalf of a foreign state. Can they, and to what extent, invoke and enjoy state immunity?

    We can hardly say that this question has received an answer based on a comparative law analysis. The scope of past observations on beneficiaries of state immunity other than a foreign state itself was mainly limited to non-natural persons such as state-owned corporations or political subdivisions of the state. Thus, even were they to enjoy state immunity, we could pose the same question as above with regard to individuals who acted for these entities. The purpose of this article is to clarify case law concerning individuals' entitlement to state immunity from the standpoint of the attribution of an act to a state. (1) Particular emphasis is placed on problems of ultra vires conduct of state officials.

    Some preliminary remarks are useful. This article focuses upon state immunity from foreign civil proceedings. Certainly, a number of (quasi-) criminal cases exist in which immunity was granted to a foreign state or its agency. (2) However, most domestic criminal rules are intended to apply only to natural persons. In such cases, it is neither necessary nor possible to prove the immunity of foreign states, and the position of individuals who acted on behalf of a foreign state is at best unclear. (3)

    Let us take the four criminal cases that Bothe cited in 1971 in support of his argument that state officials are, in certain circumstances, immune from foreign criminal proceedings. (4) In regard to the McLeod case, (5) it should not be ignored that, contrary to the diplomatic correspondence between the two countries concerned, which was in favor of McLeod (6) the court, in fact, denied immunity. (7) Horn v. Mitchell (8) is also a case in which immunity was denied. The court found, "no ground for extending to him any of the privileges or exemptions which might result from a finding that his act was a national act." (9)

    The two other cases, in which immunity was granted, concern members of foreign armed forces and do not imply the extension of immunity to non-members. In In re Gilbert (10), Judge de Azevedo stated that, "if the crime were devoid of any military aspect, the case would undoubtedly fall under the local jurisdiction." (11) In the Scordalos case, (12) the defendant was a Greek marine. Although this Egyptian case was decided without an applicable treaty between Egypt and Greece, it has been pointed out that the Egyptian courts of those days were influenced by the Anglo-Egyptian convention, which provided for the immunity of members of the British Forces. (13) It is also to be noted that, in a similar agreement with the United States, Egypt reserved the right to prosecute civilian employees. (14)

    Recent practice points to, if anything, non-immunity from criminal proceedings (15) and provides no authority in favor of immunity. (16) In order to avoid unnecessary confusion, it would be advisable to exclude criminal cases unless light can be shed, in one way or another, upon this study.

    Further, given the subject matter of this article, i.e. the relationship between individuals who do not ordinarily enjoy immunity from suit and state immunity, some other cases fall outside its scope. One of them concerns some specific categories of individuals, e.g. diplomats or heads of state, who ordinarily enjoy immunity irrespective of whether their acts are attributed to the state. (17) Cases in which these individuals are involved will be dealt with only where attribution might matter. Another is a case that took place before the state immunity principle was undoubtedly established. (18)

    The final preliminary remark concerns the so-called act of state doctrine. Chief Justice Fuller provided the classic definition of this doctrine in Underhill v. Hernandez, (19) when he said, "[T]he courts of one country will not sit in judgment on the acts of the government of another done within its own territory. (20) Needless to say, "[this] doctrine is peculiar to Anglo-American law," (21) and distinct from the state immunity principle. While state immunity is a matter of procedural law, the act of state doctrine is arguably one of substantive law. (22) Hence, "the act of state doctrine exempts no one from the process of the court." (23) However, it is not always easy to recognize which principle was applied. For instance, in regard to Underhill v. Hernandez, (24) the U.S. Supreme Court itself later comments that, "sovereign immunity provided an independent ground". (25) Thus, mention of cases in which the act of state doctrine was at issue is not necessarily excluded.


    As already mentioned, the question whether, and under what circumstances, individuals can invoke state immunity has attracted no particular attention. As a result, the provisions of national legislation give little guidance in this respect. (26) Section 14 of the U.K. State Immunity Act 1978, for instance, provides, "(1) ... [R]eferences to a State include references to--(a) the sovereign or other head of that State in his public capacity; (b) the government of that State; and (c) any department of that government". (27) The other possible beneficiaries of state immunity specified in that section are any entity (a "separate entity") which is distinct from the executive organs of the government of the state and capable of suing or being sued, and the constituent territories of a federal state. In the recent Argentine legislation, no definition or explanation is given to the term "foreign State" (Estado extranjero). (28) The Australian Foreign State Immunities Act of 1985, in accordance with which "a natural person" who fulfills certain conditions is to enjoy immunity as a "separate entity" of a foreign state, can be regarded as an exception. (29)

    Most instruments of an international character are equally not free from such ambiguity. It does not seem that the work of the International Law Commission (ILC) has clarified this point. A number of writers (30) have suggested a broad interpretation of "representatives of the State acting in that capacity" as one of the beneficiaries of state immunity under the ILC Draft Articles on Jurisdictional Immunities of States and Their Property. (31) It is questionable, however, whether all the individuals who act on behalf of a foreign state can be considered "representatives of the State." (32)

    On the other hand, the International Law Association Draft Convention on State Immunity makes its position quite clear. Georg Ress, in his final report to the Association, stated:

    [The term "foreign State" in this Draft Convention] is not intended to cover individuals, because the reasons underlying the concept of state immunity do not apply. Court action against an individual (who would then be liable with his personal estate only) does not implicate sovereignty or sovereign equality.... [T]he problem of state immunity arises only if a state is named as party to a suit. (33) The first question is whether such a denial of individuals' entitlement to state immunity is in accordance with case law. Initially, a number of cases are examined which have been, or might be, taken to constitute authorities in favor of the absence of immunity. This is followed by an examination of those in which immunity was granted.

    Setting this aside momentarily, we ought to bear in mind that the denial of jurisdictional immunity does not necessarily amount to the existence of responsibility as a matter of substantive law. Indeed, it has been argued that, whether or not individuals are immune from suit, they are not held responsible vis-a-vis the plaintiff for their acts on behalf of a foreign state. (34) Therefore, it must be noted that Ress' statement contains two distinct propositions.

    1. Denial of State Immunity to the Individual?

      (1) Belgium: Mesdag v. Heyermans, decided in the nineteenth century, deserves to be mentioned. (35) Heyermans's painting, displayed at an exhibition in Brussels, was withdrawn without her consent at the request of Mesdag, a Dutch official. The Court of Appeal of Brussels denied its competence for two reasons. (36) First, the Court states that Mesdag enjoys immunity, at least for acts done in his official capacity, because he is an "envoy of foreign governments" within the meaning of the Belgian decree at issue. Second, the Court found that the acts in question did not fall within the judicial power of the government since they were purely administrative acts. In both respects, the Court of Cassation annulled this judgment. (37) It seems that the denial of the second point by the Court of Cassation suggests the absence of the immunity of the state itself under the circumstances of this case.

      (2) Danzig: In the Polish Officials in Danzig case, (38) the defendant was sued for damages allegedly arising out of his activity as a Polish customs officer. The High Court rendered a judgment to the effect that, "[t]here was no reason whatsoever to assume that a foreign official on duty in Danzig who did not come within [the domestic law provisions at issue concerning persons invested with diplomatic character] should be able to claim immunity from any action arising in connection with his official function." (39)

      (3) France: In Isidore Dreyfus v. Dreyfus freres, (40) subscribers sued French bankers who dealt with loans on behalf of the Peruvian government. According...

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