INTRODUCTION

Many individuals and institutions are exempt from the jurisdiction of foreign local courts in
international law. The main ones are sovereign states and foreign state representatives,
diplomatic officers, consuls, and international institutions, their officials and staff. Often
recognized as sovereign immunity, state immunity reflects its roots in the sanctity of kingship. 1
Sovereign immunity or government immunity is a rule of customary international law that one
sovereign state cannot be tried without its permission before the courts of another sovereign
state.2 The rule has its roots in the international law maxim par inparem non habet imperium
which means “that equal has no power over an equal”. Immunity does not confer exclusively on
an individual as such, but rather on an office, and the actual occupant of that office retains the
immunity attached to that office at any point in time. In many countries, the concept of absolute
immunity has now been discarded to adopt the idea of a restricted approach to immunity that
does not grant immunity to a sovereign's commercial actions.
The principle of diplomatic immunity is one of the oldest elements of foreign relations. Till now,
diplomatic immunity has been based primarily on customary and international practice. More recently,
the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular
Relations codified the usual practice of diplomatic immunity, have formalized the customary
rules and made their application more uniform.
1. STATE/SOVEREIGN IMMUNITY
At the same time, the question of immunity is a question of jurisdiction: it will only be
appropriate to talk of immunity or protection from it if the court already has jurisdiction.
Specifically, all states are given absolute control within their own territorial jurisdiction by
classical international law.3To borrow the famous law formulation of U.S. Supreme Court Chief
Justice John Marshall in 1812:
The jurisdiction of the nation within its territory is necessarily exclusive and absolute. It
is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving
validity from an external source, would imply a diminution of its sovereignty…..4
In other words, If the jurisdiction of a State within its territory is exclusive and absolute, any rule
limiting the exercise of that jurisdiction, as a rule of immunity for foreign sovereigns or their
agents, would mean a diminution of the sovereignty of the State Forum by undermining its
1
Anthony Aust, THE HANDBOOK OF INTERNATIONAL LAW (2nd edn,2010) 145
2
ibid
3
Colangelo, Anthony J. (2013) "Jurisdiction, Immunity, Legality, and Jus Cogens," Chicago Journal of International
Law: Vol. 14: No. 1, Article 4.https://chicagounbound.uchicago.edu/cjil/vol14/iss1/4 accessed on 26 November
2019
4
The Schooner Exchange v. McFaddon and Others, 11 U.S. 116 (1812).
exclusive and absolute territorial jurisdiction.5 In the famous judgment of the Schooner
Exchange V McFaddon in 1812, the United States Supreme Court recognized this first
articulation of the principle of state immunity, in which Chief Justice Marshall clearly express
the principle:
That by the definition of sovereignty, a state has absolute and exclusive jurisdiction
within its territory but that it could also be implied or express consent waive
jurisdiction.6
State Immunity is a public international law principle that denotes to the concept of states often
relying on to claim that the court or tribunal has no jurisdiction over it or to prevent the
enforcement of an award or judgment against any of its assets.7 To subject a Foreign Sovereign
to a local jurisdiction would be in breach of their Sovereign equality as expressed in the Latin
Maxim Par in parem Non Habet Imperium “an equal has no authority over an equal”.8The
classic doctrine of Sovereign Immunity was briefly exposed by chief justice Marshall:
“One sovereign being in no respect amenable to another, and being bound by
obligations of the highest characters, not to degrade the dignity of his Nation by placing
himself or its Sovereign rights within the jurisdiction of another, can be supposed to
enter a foreign territory only under an express License or in the Confidence that the
immunities belonging to his independent Sovereign nation, though not expressly
stipulated, are reserved by implication and will be extended to him”9
Previously state immunity doctrine was absolute, which granted foreign sovereign absolute
immunity from the jurisdiction of local courts, regardless of whether the transaction involving
the Sovereign is an official transaction or a private transaction. 10 However, now there is a shift
from the absolute doctrine of immunity to the doctrine of restrictive immunity. By a restrictive
approach to immunity, there is now a distinction between the Sovereign's official act and (act
Jure Imperii) for which immunity should vest.
I. PUBLIC/PRIVATE IMMUNITY
State Immunity cowl each the Foreign Sovereign's official and private acts. The current trend,
however, is that Jure Imperri, governmental acts receive Immunity, whereas Jure gestions,
commercial acts do not. So For all commercial activities, foreign sovereigns are subject to local
jurisdiction.

5
Joan E. Donoghue, “Taking the "Sovereign" Out of the Foreign Sovereign Immunities Act: A Functional Approach
to the Commercial Activity Exception”, 17 Yale J. Int'l L.(1992).https://digitalcommons.law.yale.edu/yjil/vol17/iss2/3
accessed on 26 November 2019.
6
Schooner Exchange (n 4).
7
Gaukrodger, D. (2010), “Foreign State Immunity and Foreign Government Controlled Investors”, OECD Working
Papers on International Investment, 2010/02, OECD Publishing. https://dx.doi.org/10.1787/5km91p0ksqs7-en
accessed on 26 November 2019
8
HAZEL FOX, THE LAW OF STATE IMMUNITY (2nd edn,2008) 13
9
Schooner Exchange (n 4).
10
Francis J. Nicholson, “Sucharitkul: State Immunities and Trading Activities”, 2 B.C.L. Rev. 459 (1961),
https://lawdigitalcommons.bc.edu/ accessed on 26 November 2019 bclr/vol2/iss2/42
 II. EXCEPTIONS TO STATE IMMUNITY
Draft articles on Jurisdictional Immunities of States and Their Property, 1991 which may in
future form the basis of a treaty. Under article 10-12, a state will not be immune in case of:
Commercial Transaction
Employment Contracts
Cases of personal injury or damage to property.

2. DIPLOMATIC IMMUNITY
Diplomatic immunity constitutes a form of legal immunity and government policy to ensure the
security of diplomats and not subject them to prosecution or suing under the laws of the host
country (while expelling such diplomats). Diplomats are not subject to the ordinary law of the
country in which they represent. In short, it is the concept in which immunity and privileges
enjoyed by international organizations and official state representative, from the jurisdiction of
the host state.

This is often called as Personal or Functional immunity. since the aim of the law is to protect the
State’s members, means enjoyed by people rather than governments or state, and by granting
them such immunity, the host states allow them to carry out their duties without pressures or
harassment. The rules of diplomatic immunity are international law's most accepted and
undisputed rules and they are essential in maintaining and efficiently conducting relations
between sovereign states.
Diplomatic or consulate immunity law, also known as dual law, because it provides for the
function of a tow fold, firstly, providing benefits to the diplomat in a receiving state, and
secondly, the host State is obliged to protect an individual and to his property in a manner that
allows them to exercise his duties properly.
I. INTERNATIONAL CONVENTION
Following are the attempts for the development and codification of international law of
diplomatic immunity;

 Congress of Vienna, 1815

 Vienna Convention on Diplomatic Relations, 1961
 Vienna Convention on Consular Relations, 1963

In the context of the United Nations framework for codification and rapid development of
International relations between sovereign states, the Vienna Convention on diplomatic relations,
1961 can be considered as the most successful of the international legislation instrument. The
Convention was declared to be Customary International Law by the International Court of
Justice11. The Vienna Convention provides a detailed structure for diplomatic relations to be
developed, maintained and if required than terminated by consensus of independent sovereign
States.

Key Provisions of the Vienna Convention on Diplomatic Relations, 1961 are as follows
i. Persons Entitled to Immunity
Article 1 of the Convention provides the following list of persons entitled to immunity

1. The head of the mission

2. The members of the mission
3. Members of the staff of the mission”
4. Members of the diplomatic staff
5. A diplomatic agent
6. The members of the administrative and technical staff
7. The members of the service staff
8. A private servant
9. The premises of the mission

ii. Premises of the Mission

The land on which the building is located remains a part of the receiving state and, of course,
buying or leasing the land has to be done in accordance of local law of the land12. But Article
2213 of the convention bars entry of receiving state law enforcement officials & imposes a duty
on receiving state to protect mission premises. The premises may not be entered without the
consent of the head of the mission even in response to the misuse of this inviolability or
emergency. Inviolability is an absolute rule since any exception to it could be abused by a
receiving state14 and the prohibition to enter into the premises is also applicable in an emergency.
iii. Inviolability of Mission Archives
Article 24 of the convention ensures the inviolability of archives & documents, even outside mission
premises. Must be given a broad definition to cover at least all items included in the definition of
‘consular archives” in Article 1(1) (k). 15 This article guarantees that the mission archives and documents
are inviolable, even outside the mission premises, so that they are not seized, inspected or allowed to be
used in legal proceedings by the receiving state. The term documents also include documents obtain by
electronic means, such as documents stored on computer hard and floppy disk, CD-ROMs, memory sticks
and any other electronic devices used for this purpose. The host state is obliged to protect the inviolability

11
United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. 3
12
Radwan v. Radwan (1972) 3 All ER 1026; 55 ILR 579
13
Article 22, Vienna Convention on diplomatic Relations, 1961
14
Anthony Aust (n 1)115
15
Vienna Convention on Consular Relations, 1963
of the documents in all situations and should do their all possible efforts to return them immediately if
they have been lost or stolen.

iv. Freedom of Movement and Communication

Article 27 guarantees free communication between mission & its sending State. Ensure free
communication between mission and the sending State by any means appropriate, and ensures that the
diplomatic bag carrying the communication cannot, even if suspected of abuse, be opened or taken into
custody. Since document protection and its privacy are important to perform their functions. This article
establishes the fundamental principle that free communication by diplomatic missions must be permitted
and protected by a receiving State for all official purposes 16.
v. Personal Inviolability
Article 29 provides for the inviolability of diplomats. The principle that diplomatic agents are inviolable
has been fundamental since ancient Greece: they cannot be held liable for any form of arrest and must be
treated with due respect.17 The receiving state is under the duty to protect the freedom, dignity of the
diplomat and will make every appropriate measure to avoid any attack on their liberty and respect. The
word ' appropriate measures ' depends on circumstances, and there is, therefore, no need for a permanent
guard on an ambassador's premises or residency, unless there is the reason to believe that he may be at
some risk.
vi. Immunity from Civil and Criminal Jurisdiction
Where article 29 provides protects the dignity and freedom of diplomat, on the other hand, article 31
establishes their immunity from civil and criminal jurisdiction. The diplomat is fully immune from
criminal and civil jurisdiction except where he may be involved outside of his office in private and
commercial activity, except in cases where he or she may be involved outside of his official capacity in
private and commercial activities. This immunity is necessarily linked to the inviolability of his person 18.
vii. Waiver of Immunity
Article 32 establishes rules for a waiver by sending State of immunities/privileges. The objective of the
immunity is to ensure that the representative of the State performs his diplomatic tasks efficiently, which
is for the official capacity only, not for his benefit. Immunity can therefore only be waived by sending
state and not by a person on its own19. Article 32(2) holds that waiver of diplomatic immunity must be
express; cannot be implied.
viii. Exemption from Taxes
Article 34 sets out tax exemptions accorded diplomats. The law states that a diplomatic agent is exempt in
the receiving state from all dues and taxes, personal or real, national, regional or municipal. In article 34
the tax exemption granted to diplomats together with the detailed exceptions to their official duties or to
ordinary life for matters in the receiving country

II. PERSONA NON-GRATA

16
Anthony Aust,(n 1) 121
17
Ibid, 125
18
Ibid, 127
19
Ibid, 130-131
Persona Non-Grata is a person that the host government does not accept; the receiving State shall
be given unqualified authority by Article 9 to demand the removal of any mission member. The
receiving State notifies the sending State of the diplomatic agency that they are persona non
grata and that they are not acceptable in all other cases. Persona non grata can be notified and
declared by the state at any time, even before arrival in the receiving state. The sending state then
has the obligation to either recall or terminate its function with the mission after the deceleration
of persona non grata.