University of Namibia

Faculty of Law

Student Number: 201131439

Course : Public International Law

Lecturer: Mr. F. X Bangamwambo

Due Date: 5 May 2014

Topic:

“International commerce has destroyed the absoluteness of

state (sovereign) immunity in respect of commercial

transactions. International human rights law and

international criminal law are poised to weaken it further”

In the light of the foregoing dictum, using case law

(national and international) as well as authoritative

scholarships on the topic, critically discuss the doctrine

of sovereign immunity vis a vis the obligation erga omnes of

the states to prosecute international crimes

Table of ContentsIntroduction.........................................................2State Soverignity……………………………………………………………………………………………………………………..………………3

Immunity from Jurisdiction...........................................4State immunity.......................................................6

The absolute approach................................................8The restrictive approach.............................................9

Circumstances under which immunity cannot be granted................10Immunity under Commercial Acts......................................11

Immunity under criminal proceedings.................................12Immunity for governmental figures...................................13

The Significance of the Ex parte Pinochet..........................15Jus cogens and obligation erga omnes................................16

The current modern position of state immunity.......................18Conclusion..........................................................19

References..........................................................21

Introduction

As a point of departure the doctrine sovereign immunity

which is supported by the phrase par in parem non habet imperium

which means that, “an equal has no power over an equal”, this

simply dictates that sovereigns are equal as juridical bodies

status and have no authority to use their courts to sue other

sovereigns without the latter’s consent.1 This doctrine has

immensely evolved as the modern international law accepts that

state sovereignty is not absolute and that all states can be

subjected to certain legal fundamental obligations even if

their consent cannot always be directly demonstrated in

relation to them. It is however questionable as to the extent

of powers of the government to grant amnesty, whether on a

proper interpretation of state’s responsibility to grant

pardon for crimes committed against it vis-a-vis the duty under

international law to punish those who have committed other

crimes especially humanitarian law crimes. Dugard,2 provides

that international commerce has destroyed the absoluteness of

state (sovereignty) immunity in respect of commercial

1 Mitchell A. (1999). Leave your hat on? Head of state immunity and Pinochet. Vol 25, no 2. Monash University review, p 225.2 Dugard J. (2010). International law: A south African perspective. 3rd edition. Cape Town: Juta and Co, p 238.

transactions. International law is poised to weaken it still

further.

There has been tension between state immunity and the

international human rights. The Pinochet case is one of the

cases that illustrate the striking example of the inherent

tension between head of state immunity and international human

rights as these doctrines clash in an extravagant manner.

Cognizance should be taken that state immunity has exception

which for the purposes of this assignment in instances such as

commercial transactions amongst others, a state can therefore

not raise immunity before courts in this regard. Hence the

above the absoluteness of state immunity is restricted by

international commerce, international criminal law and

international rights law. That being said this assignment aims

to succinctly give a critical discuss on the doctrine of

sovereign immunity vis-à-vis obligation erga omnes of states

to prosecute international crimes with relevance to

authoritative scholarship, international conventions as well

as case law.

State Sovereignty

State sovereignty denotes the competence, independence and

legal equality of state the concept is normally used to

encompass all matters in which each state is permitted by

international law to decide and act without intrusion from

other sovereign states. These matters include choice of

political, economic, social and cultural system and the

formulation of foreign policy. The scope of the freedom of

choice of state in these matters is not unlimited, it depends

on developments in international law and international

relations.3 This basically means that the state has a quality

of having an independent authority over a geographic area; it

can be normally understood to be a state which is neither

dependent on nor subject to any other power nor state. The

core elements of state sovereignty were codified in the 1933

Montevideo Convention on the rights and duties of states.

According to Brownlie I,4 sovereignty and equality of

states represent the basic constitutional doctrine of the law

of nations which governs a community consisting of primarily

of states having a uniform legal personality. Furthermore

Brownlie postulates that if international law exists, then the

dynamics of state sovereignty can be expressed in terms of law

and as states are equal and have legal personality,

sovereignty is in a major aspect a relation to other states

defined by law. Article 2(1)5 of the UN Charter, the world

organization is based on the principle of the sovereign3 Evans, G and Sahnaun M. (2001). The responsibility to protect: supplementary volume to the report of international commission on intervention and state sovereignty. Ottawa: International development research centre. p, 6.4 Brownlie. (1998). Principles of Public international law. 5th edition. New York: OxfordUniversity Press, p 289

equality of all member states. Whilst their equal in relation

to one another their status of legal equality as a mark of

sovereignty is also the basis on which international

governmental organization are established and endowed with

capacity to act between and within states.

The nature of state sovereignty in relation to criminal

acts was examined in the Lotus (France vs Turkey) case,6 in which

the French streamer, the Lotus, was involved in a collision on

the high seas with the Boz- Kourt, a Turkish collier. The

latter vessel sank and eight sailors and passenger died as a

result. Because of this the Turkish authorities arrested the

French officer of the watch at the time of the incident when

the Lotus reached the Turkish port. The French officer was

charged with manslaughter and France protested strongly

against this action, alleging that Turkey did not have the

jurisdiction to try the offence. The case came before the

Permanent Court of International Justice, which was called

upon to decide whether there existed an international rule

prohibiting the Turkish exercise of jurisdiction. Because of

the basis of international law in the existence of sovereign

states, the court regarded it as axiomatic that restrictions

upon the independence of states could not be presumed.

However, a state was not able to exercise its powers outside

its Frontiers in the absence of a permissive rule of

5 Atricle 2(1) of the UN charter provides: “The Organization is based on the principle of the sovereign equality of all its Members.”6 (PCIJ 1927).

international law.7 That being said it can therefore be

inferred that from the case above states are sovereign and

other states cannot exercise power to prosecute crimes without

the another states consent.

Immunity from Jurisdiction As articulated above the concept of jurisdiction revolves

around the principles of state sovereignty, equality and non-

interference and that the domestic jurisdiction attempts to

define the areas where governmental authority reigns supreme

without interference from international law. Furthermore

immunity from jurisdiction as regards the state itself or its

diplomatic representatives stems from the sovereignty of the

state itself. It however follows from this that all sovereigns

are equal and that not one of them should be subjected to the

jurisdiction of another.8

In the Liebowitz v Schwartz and other ; 9 were the plaintiff instituted

action for the setting aside of a will. It is trite law that a

party seeking such relief is obliged to join all beneficiaries

as defendants. However in this case one of the beneficiaries

was a foreign state. It was also trite law that an independent

foreign state may not be pleaded before the court.Nicholas J

7 Shaw, M. (2008). International Law. 6th edition. UK: Cambridge, p 655, 656. 8 Dugard, J. (2010). International law: A South African perspective. 3rd edition. Cape Town:Juta and Co, p 241.9 1974 (2) SA 661 (T).

gave his approval to both these explanations when he observed

that "the court of a country will not by their process make a

foreign state a party to a legal proceedings against its will"

& stated that this principle was "founded on grave and weighty

considerations of public policy, international law & comity

Dugard further provides that the immunity accorded to

foreign sovereigns takes two forms, firstly sovereign immunity

which involves immunity of the head of foreign state, the

government of a foreign state or a department of such

government , secondly diplomatic and consular immunity which

deals with immunities and privileges granted to foreign

diplomats and consuls.

Brownlie I,10 provides that the rationale of immunity from

jurisdiction is highlighted in the judgement of the United

States Supreme Court In the Schooner Exchange v Mcfaddon,11which

is delivered by judge Marshall, CJ, who referred to the

jurisdiction of a state within its own territory as being

necessarily exclusive and absolute. Marshall CJ, stated:

“This full and absolute territorial jurisdiction being alike the

attribute of every sovereign and being incapable of conferring

extra- territorial power, would not seem to contemplate foreign

sovereigns nor their sovereigns rights as its objects. One

sovereign being in no respect amenable to another and being bound

by other obligations of the highest character not to degrade the

10 Brownlie. I (1998). Principles of Public international law. 5th edition. New York: OxfordUniversity Press, P 328.11 (1812) 7 Cranch 116.

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 station, though not expressly stipulated… this perfect

equality and absolute independence of sovereigns and this common

interest compelling them to mutual intercourse and interchange of

good offices with each other, have given rise to a class of cases

in which every sovereign is understood to waive the exercise of a

part of that complete exclusive territorial jurisdiction, which

has been stated to be the attribute of every nation.”

On the flip side of the coin although as provided for in

the Lotus case that a state may exercise jurisdiction over

acts occurring abroad in the absence of the prohibitory rule

remains unchanged, the S v Basson case,12 in which the

constitutional court held that the South African Court may

exercise criminal jurisdiction over a conspiracy entered into

in South Africa on the part of the South African Defence force

to murder the opponents in Namibia during South Africa’s

occupation of that territory on that there was a real and

substantive link between South Africa and the Crime. Dugard,13

further provide that a state may assert its jurisdiction over

all criminal acts that occur within its territory and over all

persons responsible for such criminal acts whatever their

nationality.

12 Unreported judgment of 9 September 2005.13 Dugard (2005:151).

Further subjective and objective territoriality as stated

by Dugard, provides that a state may exercise jurisdiction

where the crime is commenced within its territory and

completed in another which is subjective or where the crime

commenced within a foreign state and completed within its

territory( objective territoriality). It is made clear that

the Lotus case followed the objective approach. That being

said we should therefore look into state immunity.

State immunity

State immunity was defined in the Holland v Lampen- Wolfe,14

case in which Lord Millet provided that state immunity is a

creature of customary international law and derives from the

equality of sovereign states. It is not a self imposed

restriction on the jurisdiction of its courts which the United

Kingdom has chosen to adopt. Its limitation imposed from

without upon sovereignty of the United Kingdom itself.

Furthermore Lord Browne Wilkinson stated in Ex parte

Pinochet,15 that it is a basic principle of international law

that one sovereign state does not adjudicate on the conduct of

a foreign state. Such foreign state is entitled to procedural

immunity from the process of the forum of the state.16According

to Dugard,17 sovereign immunity has its origin in the immunity

14 2008 1 WLR.15 2000 1 AC 147, 201, 119 ILR .16 Shaw, M. (2008). International Law. 6th edition. UK: Cambridge,p 699.17 Dugard J. (2010). International law: A south African perspective. 3rd edition. Cape Town: Juta and Co, P 241.

of the person of the sovereign which was later replaced by the

immunity of the state and its organs in abstract. Before the

emergence of the state controlled trading enterprises which

were introduced by the sociologist state governments were

rarely involved in commercial activities hence sovereign

immunity was absolute. Many states support the doctrine of

restricted immunity whereby immunity is granted in acts jure

imperii (public governmental activities) as opposed to jure

gestionis (commercial) activities. The rationale being that

government which enters into ordinary commercial transaction

must honour their obligations just like any ordinary tenders

but if it fails to do so, it should be subject to the same

laws.

It is however clear from the above that there is two

conflicting theories which describes why sovereign immunity

today applies to head of a foreign state, its government and

its government departments; namely: the theory of absolute

sovereign immunity which infers that A state was immune from

the courts of another state in respect of all acts it

performed. This meant that as states became global commercial

players, the absolute theory had the potential for complete

havoc as far as the unfortunate individual who contracted

under these terms was concerned thus things had to change.

Secondly the theory of restricted sovereign immunity which

merely connotes that States remain immune as fall as

governmental public activities (Acta iure imperii) are concerned,

but are not immune when they perform commercial activities

(Acta iure gestionis). Dugard argues that restricted immunity has

probably acquired the status of customary international law

with the adoption of the UN Convention on Jurisdictional

Immunities of States and Their Property. The preamble to the

convention states that the jurisdictional immunities of states

& their property are generally accepted as a principle of

"customary international law". This convention approves

restricted immunity in respect of commercial transaction. In

essence from this approach as opposed to the absolute approach

the state immunity is weaken as when restrictions are imposed,

it shows that state immunity is not absolute after all. In

order to understand further, the two approaches will be looked

at in much more detail for the purposes of critically

discussing the issue in discussion crucially.

The absolute approach Shaw M,18 provides that the concept of absolute immunity

was given rise to in the eighteenth

and nineteenth centauries by the roles of sovereign and of

government whereby the sovereign was completely immune from18 Shaw, M. (2008). International Law. 6th edition. UK: Cambridge ,p 701.

foreign jurisdiction in all cases regardless of circumstance.

Consequently many states began to adhere to the doctrine of

restrictive immunity, under which immunity was engaging in

commercial activity. Governmental acts with regard to which

immunity would be granted are termed acts jure imperii, while

those relating to private or trade activity are termed acts

jure gestionis. As already propounded the absolute immunity

approach has been used in the United Kingdom, and this

position is recognizable in the Parlement Belge case, 19which

concerned a mail ship owned and controlled by the king of

Belgium and crewed by the Royal Belgium Navy, the court of

Appeal held that it lacked jurisdiction over the person of

any sovereign over the public property of any state which is

destined to its public use.

Hiller,20 provides that forty years later the court of appeal

in another case of the Porto Alexandre,21 relied on the Parlement

Belge to find that immunity attached to a ship which had been

requisitioned by the government of Portugal and used to carry

Cargo belonging to a private company. It was argued that the

ship that the ships was engaged on an ordinary commercial

undertaking, but the court held was capable of disciplining

the rule of absolute immunity laid down in the Parlement Belge.

Furthermore the doctrine of absolute immunity was seen as its19 (1880) 5 P.D 197.20 Hiller, T. (1998). Sourcebook on Public international law. London: Cavendish Publishing Ltd, p 296.21 1920 P. 30 J 1.

most extreme in Krajina V Tas Agency,22 the facts to this case are

that Krajina claimed damages for libel contained in the Soviet

Moniter which was published by the London office of the Tas

news agency. The Soviet ambassador to the United Kingdom

certified that Tas was a department of state of the Soviet

Union and the court of appeal accordingly decided that it was

decided that it was entitled to immunity.

The restrictive approach Dugard23 provides that after a series of conflicting

decisions the UK courts finally accepted the validity of the

restrictive approach, which was embodied in the Trendex Trading

Corporation services v Central Bank of Nigeria , 24 which dealt with a

Commercial transaction for supply of cement to Nigerian state,

Central bank issuing irrevocable letter of credit furthermore

an Action to enforce payment was instituted and the status of

bank was questioned as to whether the bank was a department

of state and whether immunity in respect of commercial

transactions exists. In applying the theory of restrictive

immunity on the ground that international law had changed in

the intervening years from one to the other”. The judges of

the appeal unanimously held that the restrictive approach

22 (1949) 2 ALL ER 274.23Dugard J. (2010). International law: A south African perspective. 3rd edition. Cape Town: Juta and Co p 242.24 1977 2WLR 356.

reflects current state practice on the matter on that the

doctrine of stare decisis which constrained UK courts does not

exist under international law.

The holding in the Trendex case was later reaffirmed by the

Alcom Ltd v Republic of Colombia, 25 whereby the majority of states

now have tended to accept the restrictive immunity approach

doctrine and this has been reflected in domestic legislation.

In particular, the US foreign Sovereign Immunities Act 1976,

provides in section 1605 for the grounds upon which a state

may be subject to the jurisdictional as a general exceptions

to the jurisdictional immunity of a foreign state, while the

UK State Immunity Act 1978 similarly provides for a general

rule of immunity from the Jurisdiction of the courts with a

range of exceptions thereto.26

By virtue of Article 144 of the Namibian constitution,27 which

provides the general rules of Public international law and

international agreements binding upon Namibia under the

Constitution shall form part of the law of Namibia. It should

be noteworthy that Namibia does not have its own legislation

on the subject therefore the general principles of customary

international law will apply and hence forth the international

instruments that Namibia ratified will be applicable in

25 (1984) 2 ALL ER 6.26 Shaw, M. (2008). International Law. 6th edition. UK: Cambridge,p 707.27 The Namibian Constitution of Namibia of 1990.

relation to statutes that govern immunity which in essence

will be discussed further

Circumstances under which immunity cannot be granted

In South Africa, the Foreign States Immunities Act 87 of 1981

which was adopted to regulate the circumstances in which a

state will be able to raise immunity before a SA court. The

act is negatively phrase, meaning the Act starts from the

premise that a foreign state is immune from the jurisdiction

of a South African court (has absolute immunity), except in

instances specifically listed in the act (restricted

immunity). A state will not be allowed to raise immunity

before a SA court in a number of cases namely:

a) Waiver

A foreign state will have no immunity where it has expressly

waived immunity after dispute has arisen or where it has

done so by prior written agreement.28

b) Commercial transaction

A foreign state will not be immune from the jurisdiction of

municipal courts in proceedings relating to the transaction

entered into by the state.29 In order to determine whether a

transaction is commercial, it is therefore necessary to

consider its nature and not its purpose. The distinction

lies between acta jure and acta jure gestionis.

c) Contracts of employment

28 Sec 329 Sec 4

A court will have jurisdiction in proceedings relating to the

employment of diplomatic, consular, administrative,

technical or service staff of a foreign diplomatic mission

or consular.30

d) Personal injury and damage to property

A foreign state is not immune from jurisdiction of a municipal

court in proceedings relating to the death or injury of any

person or to damage to tangible properly caused by its act

or omission in the Republic. In Letelier v Republic of Chile , 31 the

courts dismissed the argument that Chile could plead

sovereign immunity to claim for damages arising out of the

assassination of an opponent of the Chilean government

committed by agents of the Chilean government committed by

agents of the Chilean government in the US.

Immunity under Commercial Acts

Hence Shaw,32out of all the state activities commercial

transactions is one of the primary examples and therefore the

definition for such an activity is very crucial. Section 3(3)

of the State Immunity Act 1978 defines the term commercial

transaction to mean, any contract for the supply of goods and

services or any loan or other transaction or of any other

financial obligation and/ or any transaction or activity into

which the state enters or in which it engages otherwise than

in the exercise of sovereign authority. Another definition

30 Sec 531 488 F .supp 1980.32Shaw, M. (2008). International Law. 6th edition. UK: Cambridge, P 718.

which is used in the United Kingdom under the State Immunity

Act provides that the state is not immune as respect

proceeding relating to a commercial transaction entered into

by the state or an obligation of the state which by virtue of

a contract falls to be performed wholly or partly in the

United Kingdom.

Since as already provided for in Namibia there is no

legislation that governs the state immunity as that in South

Africa and United Kingdom per se so for persuasive purposes

and determining the position with regard to immunity in cases

of commercial transaction and hence forth since Namibia has

ratified the UN charter, Article 10 of the UN convention on

Jurisdictional immunities provides that there is no immunity

where the state engages in a commercial transaction with a

foreign natural or juridical person in a situation where by

virtue of the rules of private international law a dispute

comes before the courts of another state unless parties to the

commercial transaction otherwise expressly agree.

In the Inter-science research and development services v Republica popular

de Mocambique,33wherein the question was raised as to whether

the government of Mozambique could plead sovereign immunity in

respect of commercial activities of a corporation owned by the

government. Although certain South Africa judicial authority

are in support of the absolute doctrine, it should be

understood that there is a good reason to believe that the33 1980 ( 2) SA 111 (T).

rule of sovereign immunity has undergone an important

change and that the old doctrine of absolute immunity has

yielded to the restrictive approach.

Furthermore in the Australia and New Zealand Banking Group v

Commonwealth of Australia,34this case arose out of the collapse of

the international Tin Council in 1985. The ensuing litigation

sought by various routes to ascertain whether the member’s

states of the ITC could be held liable themselves for the

debts of that organization. The case in question concerned an

attempt by the brokers and banks to hold the member states of

the ITC liable for the tort for losses caused by

misrepresentation and fraudulent trading. It was held that it

was indeed a commercial transaction therefore there cannot be

any state immunity.

Shaw,35 highlights the KJ International v MV Oscar Jupiter,

in the supreme court of South Africa36, held that a commercial

transaction was not necessarily a transaction with a

commercial purpose and what where a ship had been transferred

by the Romanian government to one company which had

transferred it to another, the activities of the latter could

not be seen as commercial transactions of the government.

Accordingly, no loss of immunity would take place for this

reason. It was further held that the transfer of the ship by

34 1989 (78) ALR 157 HC.35 Shaw, M. (2008). International Law. 6th edition. UK: Cambridge,P 720.36 131 ILR p. 529.

the Romanian government to Moldovan government to be operated

by the latter for profit did constitute a commercial

transaction so that immunity was lost.

Immunity under criminal proceedings

Dugard,37 provides that the contemporary international law no

longer accepts that a state may treat its national as it

pleases, conventions and customs prescribe a wide range of

human rights obligation with which states must comply.

Therefore because of this that Dugard has provided that:

“international commerce has destroyed the absoluteness of the

state immunity in respect of commercial transaction and that

international law human rights and international criminal law

are poised to weaken it further.”38 The notion as posted by

Dugard merely dictates the conflict between human rights and

immunities which arises in two situations first in criminal

proceeding, where a warrant of arrest is issued by a foreign

state in respect of an incumbent head of state and secondly in

civil proceeding where the government is sued in civil

proceedings in the courts of foreign state for compensation

resulting from an international crime or serious human rights.

That being said under criminal proceedings, a distinction

must be drawn between international and national court for the

37 Dugard J. (2010). International law: A south African perspective. 3rd edition. Cape Town: Juta and Co P 24938 Ibid 250

purposes of immunity. Namibia being a monist country hence

that the monist theory applies which entails the sets of law

is components of a universal legal order based on the natural

law therefore there is no distinction between international

law and municipal law. Therefore this makes the position clear

as to the fact that international law is incorporated in the

municipal law and therefore it is safe to state that Rome

statutes and other international statues are binding to

Namibia.

Immunity for governmental figures

Hence the above Dugard,39 provides that Rome statute and

others make it clear that no immunity shall attach to heads of

state or government senior officials. The principle of non-

immunity applies equally to incumbent heads of state and

former heads of state. In addition to the South Africa is

also to expressly exclude immunity for heads of state in their

statute implementing the Rome Statute. In that it is therefore

safe to say that this Rome statute is applicable to the

Namibian Jurisdiction as well.

Shaw,40 articulates that the question of immunity ratione

personae arises particularly and most strongly in the case of

heads of states such issues may come into play either by

international tribunals or within domestic orders. The39 Ibid, 25040Shaw, M. (2008). International Law. 6th edition. UK: Cambridge, P 735.

provisions of for example, article 227 the Versailles Treaty

of 1919, article 7 of the Charter of the International

military tribunal at Nuremberg of 1945, article 6 and 7 of the

Statutes of Yogoslav and Rwanda International criminal court

and article 27 of the Roman statute of international criminal

court of 1998.

Looking at the Nuremberg Syndrome v Victors justice41 wherein the facts are that,

held for the purpose of bringing Nazi war criminals to

justice, the Nuremberg trials were a series of 13 trials

carried out in Nuremberg, Germany, between 1945 and 1949. The

defendants, who included Nazi Party officials and high-ranking

military officers along with German industrialists, lawyers

and doctors, were indicted on such charges as crimes against

peace and crimes against humanity. Nazi leader Adolf Hitler

(1889-1945) committed suicide and was never brought to trial.

Although the legal justifications for the trials and their

procedural innovations were controversial at the time, the

Nuremberg trials are now regarded as a milestone toward the

establishment of a permanent international court, and an

important precedent for dealing with later instances of

genocide and other crimes against humanity. It was expressly

stated that individual criminal responsibility will exist

irrelevant of any official status , this was reaffirmed in

the In 2004 the Appeals Chamber of the Special Court for

Sierra Leone held that indicted Liberian president Charles

41 (1947) 41 AJIL 172.

Taylor could not invoke his Head of State immunity to resist

the charges against him, even though he was an incumbent Head

of State at the time of his indictment. However, this

reasoning was based on the construction of the court's

constituent statute that dealt with the matter of indicting

state officials. In any case, Taylor had ceased to be an

incumbent Head of State by the time of the court's decision so

the arresting authorities would have been free to issue a

fresh warrant had the initial warrant been overturned.

Nevertheless, this decision may signal a changing direction in

international law on this issue.

In the Arrest Warrant case (DRC v Belgium),42 wherein the facts where

that on 11 April 2000, a Belgian Magistrate issued an

international arrest warrant against Mr. Yerodia. At the time,

Yerodia was the Foreign Minister of Congo. The Court issued

the warrant based on universal jurisdiction. It accused

Yerodia of inciting racial hatred. These speeches, allegedly,

incited the population to attack Tutsi residents in Rwanda,

which resulted in many deaths. The warrant alleged

Yerodia committed grave breaches of the Geneva Conventions of

1949 and its Additional Protocols and crimes against humanity.

Belgium sent the arrest warrant to Interpol and circulated it

to all States, including to Congo. The warrant asked States to

arrest, detain, and extradite Yerodia to Belgium.

After Belgium issued the warrant, in November 2000, Yerodia

42 2002 ICJ Reports 3

became the Education Minister. At the time of the judgement,

he did not hold a Ministerial post in Congo.

The ICJ held that Belgium had violated international law by

issuing a warrant for the arrest of the Minister in DRC on

charges of crimes against humanity and war crimes committed in

the DRC in that it failed to respect the immunity from the

criminal jurisdiction which the minister enjoyed under

international law before national court.

The Significance of the Ex parte Pinochet

The background of the case succinctly put is that General

Augusto Pinochet Ugarte overthrew the constitutional

government of the President Salvador Allende, assuming the

role of president of the government of Chile he claimed the

position of head of state of the Republic of Chile post from

26 June 1974 until 11 March 1990. Pinochet travelled to the

United Kingdom in 1994 to 1996 and later returned to London

for medical treatment upon his return he was issued with a

initial Spanish international warrant arrest, for crimes

ranging from torture, murder, detention of hostages,

conspiracy and other crimes.

Upon the issuance of the warrant Pinochet was arrested in

the hospital and later challenged the arrest. There then

followed legal proceedings relating to the detention of

Pinochet with a view of extradition to Spain. The High Court

held that the provincial warrant could not be upheld and that

the United Kingdom cannot prosecute crimes of a foreigner. The

court in the final matter held that a state cannot assert

immunity ratione materiae in relation to criminal prosecution for

torture in as much as torture is a breach of the jus cogens

under international law.

This case above highlights that immunity only applies when

such a person is in power and once the person is no longer in

powers the immunity is limited.

Once an individual who enjoys immunity ratione personae no

longer holds their oficial status, their immunity from the

jurisdiction of foreign courts is replaced with a different

and more limited immunity. This form of immunity is termed

immunity ratione materiae and turns on the nature of the act

performed by the individual. It distinguishes between private

acts on the one hand, for which there is no immunity, and

public, official or governmental acts on the other, for which

there is immunity from civil and criminal jurisdiction.43

Jus cogens and obligation erga omnes

Traditionally international society is viewed as a horizontal

system premised on the sovereign equality of states, while

43 Mitchell A. (1999). Leave your hat on? Head of state immunity and Pinochet. Vol 25, no

2. Monash University review,p 231

international law is seen as a body of rules based on the

consent and characterized by the neutrality a necessary

consequences of this that all legal norms are equal in status

. Dugard postulates that there are two concepts in essence

that challenges the orthrodox account of international law.

These new concepts are known as the jus cogens from which no

derogation is permitted and obligation erga omnes which a state

owes to the international community as a whole and in the

enforcement of which all states have interest.

There is a number of case law that questions as to whether

states may rely on sovereign immunity in cases concerning

breaches of peremptory and non-derogable jus cogens norms. The

first time that this question had been dealt with was on 21

November 2001, in the case of Al-Adsani v. United Kingdom , 44(where

the Grand Chamber of the Court decided that Kuwait could rely

on state immunity against a claim brought in the United

Kingdom concerning acts of torture allegedly committed by a

member of the Kuwaiti government. That judgment had been

reached by the narrowest possible majority of nine votes to

eight, with several forceful dissents by the minority judges

The formulation of the concept of obligation erga omnes was

a response to the South West Africa case, 45 in which the

International court of justice denied legal standing to

Ethopia and Liberia to enforce an obligation owed to the

44 103 ILR 420 (Q.B. 1995).45 1966 ICJ report 6.

international community namely the obligation on the part of

the South African government to promote the outmost, the

material and moral well being and social progress of the

people of South West Africa (Namibia).

When a norm attains the character of jus cogens, an obligation

of erga omens is imposed upon states as a result.46 The doctrine

of erga omnes – obligations owed by states to the community of

states as a whole – has been affirmed as a principle of

international law by the ICJ in the Barcelona Traction Case

(Belgium v Spain) 47 In which the international court of justice

went out of its way to repudiate its finding of the 1966 in

an obiter dictum which indicated that the litigation would no

longer be required to prove a national interest in the

subject matter of the claim where an obligation of concern to

all states an obligation erga omnes was involved. The court

stated that a distinction ought to be drawn between the

obligation towards an international community as a whole and

those arising from the field of diplomatic protection. In a

view of the importance of the rights involved all states can

be held to have a legal interest in their protection, they are

obligation erga omnes.48

46 Brownlie. (1998).Principles of Public international law. 5th edition. New York: OxfordUniversity Press ,P 597. 47 [1970] I.C.J. Rep 44, 48 Dugard J. (2010). International law: A South African perspective. 3rd edition. Cape Town: Juta and Co ,p 44

In the Genocide case (Bosnia and Herzegovina v. Yugoslavia) , 49 the

ICJ articulated an erga omens duty relating to genocide.50 The

Court found that every state has a duty to prevent and to

punish the crime of genocide, wherever that crime may occur.

The court noted “the universal character both of the

condemnation of genocide and of the co-operation required ‘in

order to liberate mankind from such an odious scourge.’” Erga

omnes further ties the principle of universal jurisdiction and

jus cogens. Together, these doctrines, especially Jus cogens and

erga omnes, generate legal expectations that modify the concept

of sovereignty and form a powerful substantive framework for

analyzing the appropriateness of waiving (or granting)

jurisdictional immunity to states.

Furthermore obligations that are derived from the outlawing

acts of aggression and of genocide as also from the principles

and rules concerning the basic rights of human person

including the protection from slavery and racial

discrimination.. Dugard further provide that the international

law commission has given recognition to the concepts of jus

cogens and obligation erga omnes in its 2001 draft articles on

the responsibility of states for international wrongful.51

49 2007 general list 1.50 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), [2007]Judgment, I.C.J. General List No. 91, available at http://www.unhcr.org/refworld/docid/4040ba0c4.html [accessed 1 May 2014].51 Dugard J. (2010). International law: A south African perspective. 3rd edition. Cape Town: Juta and Co p 45.

Article 40 and 41 of the 2001 draft articles provides that

states are obliged to co-operated in bringing to an end

through lawful means, serious breaches by a state of an

obligation arising under a peremptory norm of a general

international, they are also required to refrain from

recognizing a lawful, a situation created by a serious breach

of a peremptory.

The current modern position of state immunity

Departing from the old position which dictates that

sovereign immunity is of great importance, this assignment is

of the position that the changing nature of jurisdictional

immunity for sovereign states in the rise of importance of jus

cogens and obligation erga omnes principles, the fundamental

rules of international law from which no derogation is

permitted, this events which are complementary to

international principles, had a profound impact on changing

nature of sovereign immunity. Nagan shows that the emergence

of the jus cogens and obligation erga omnes, the principles of

human rights and humanitarian law clearly places limits on

state sovereignty and sovereign immunity.52

52 Nagan, W and Root, J. (2012). Peremptory norms of international law, the UNCharter and the application of modern communications. P 7.`

One of the recent judgments more specifically in February

2012, the International Court of Justice in the case of

jurisdictional immunities of the state, the Germany v Italy,53

whereby Greece intervening ruling that Italy violated

international law in asserting jurisdiction over Germany for

jus cogens abuse and that at present there was no such

exception recognized in customary law. The decision was not

unanimous. It was contested and strong dissents were written.

It was stated that In determining the state of customary

international law, the World Court erred in focusing

myopically on the jurisprudence of national courts. We

maintain that the World Court should have analyzed

jurisdictional immunity using a comprehensive approach,

incorporating modern methods of legal analysis, including the

use of modern communications theory as applied to

international law.54 International law is not created as

domestic law is. There is no international legislature and

precious few cases are decided by international courts.

Customary international law should not be understood within

the framework of state practice and opinio juris alone, but within

a framework that takes into account what the global community

as a whole.

The legal ground for abrogating immunity is fully based on

binding treaty as well as customary law. State sovereign

omnipotence has clearly weakened vis-à-vis the individual in53 3 February, 2012, (recent case).54

international law and relations accountability has emerged as

a recognized goal in international law. An important

limitation on sovereign immunity is given for the protection

of private property, namely with regard to the commercial

exception hence forth this rights are protected and promoted.

Furthermore it may be necessary to abrogate jurisdictional

immunity in order to avoid impunity for internationally

wrongful acts and breaches of most fundamental human rights.

From what is stated it suffices to say that the due to the

emergence the need to respect and promote human

international law and the principles under customary

international law the doctrine of state immunity has weaken as

the human rights weigh more than the rights of states doctrine

of non -inference for human rights are not non-derogable.

Conclusion

In a nutshell since states are sovereign and regarded as

equals the doctrine which dictates that “no equal has power

over an equal” which is the concept that gives rise to state

immunity, whereby states are sovereign and promotes non-

interference. In essence immunity takes two forms namely state

immunity and diplomatic immunity as provided for in the

discussion above. There are mainly two approaches when it

comes to immunity the old approach namely the absolute

immunity and the restrictive approach with puts limitations

and restriction on the immunity granted to states. It should

be highly noted that commercial transaction amongst other are

restricted and no immunity is granted in such instances. Since

Namibia does not have its own legislation that governs foreign

state immunity, for the purpose of applying customary

international law the statutes applicable in SA and United

Kingdom can be used for persuasive purposes. However since

Namibia has ratified the UN charter conventions that under the

UN charter and by virtue of article 144 of the Namibian

constitution it is therefore say to say that those

instruments are applicable when dealing with state immunity.

That being said there has been a conflict between

obligation erga omnes and the state immunity as they

drastically crush. Weighing more the jus cogen and obligation

erga omnes limits or so to destroys the absoluteness of state

sovereignty , as the states which have a responsibility and an

obligation towards one another and that there are higher

norms that convicts crimes against humanity namely torture

and genocide among others which if state immunity was

absolute, heads of states and other officials abuses these

sovereign right at the expense of infringing international

humanitarian law which are protected by international

customary law. The cases such as that of the South West

Africa case is a great example on the obligation erga omnes.

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Nagan, W and Root, J. (2012). Peremptory norms of international law, the UN Charter and the application of modern communications. P 7