The Immunities of State Officials in Civil Proceedings Involving Allegations of Torture

By Mora, Paul David | Australian International Law Journal, Annual 2017 | Go to article overview

The Immunities of State Officials in Civil Proceedings Involving Allegations of Torture


Mora, Paul David, Australian International Law Journal


I Introduction

State officials have no personal entitlement to jurisdictional immunities under international law. As immunities derive from the principle of sovereign equality (1) they are rights belonging to the State. Only the State may enter the plea of immunity or consent to being made the subject of foreign legal process by waiving this right. This is not to suggest that natural persons do not enjoy the benefits of immunity. To the contrary, monarchs and ambassadors were the original beneficiaries of immunity, and international law now recognises three regimes extending privileges to public officials indirectly. Individual officials enjoy State immunity when considered to be part of the State, or when named in proceedings affecting the interest of the State. In addition, individuals holding certain offices that embody the sovereign or represent it abroad in its foreign relations benefit from personal immunity. Finally, acts performed by representative agents carrying out official duties are subject to functional immunity. This article considers the immunities enjoyed by State officials in foreign proceedings seeking civil redress for torture. It explores the contributions made by a number of recent judicial decisions to the separate rules existing under each regime that indirectly confers immunities to State officials. The article also examines whether a State ratifying the UN Convention against Torture 1984 (CAT) (2) submits to the jurisdiction of another State and waives the right to plead immunity on behalf of its officials.

II State Immunity

A. The Extension of State Immunity to State Officials

International law places restrictions on States seeking to use their national legal systems as a means to regulate the conduct of other States. State immunity bestows States with a right to not be made defendants in foreign legal proceedings. This benefit may be extended to public officials when they are considered to be part of the State, or when named in proceedings affecting the interest of the State.

The definition of the 'State' contained in certain instruments codifying the law of State immunity recognises two broad categories of individuals who fall within the meaning of this term. Article 2(1) (b)(i) of the UN Convention on Jurisdictional Immunities of States and their Property 2004 (3) (UNCSI) considers the 'State' to include its various organs of government, such as the sovereign, head of State and head of government when acting in a public capacity. (4) These offices embody the State and the individuals who hold them are entitled to enjoy the same immunities as those of the State itself. The second category of natural persons receiving the benefits of State immunity are those who acts on behalf of the State. Proceedings brought directly against an individual for these acts 'are essentially proceedings against the State they represent'. (5) As such, article 2(l)(b)(iv) includes 'representatives of the State acting in that capacity' within the definition of the 'State' in the UNCSI. (6)

The Canadian State Immunity Act 1985 (7) (CSIA) also confers State immunity to officials in both of these situations. Section 2(a) CSIA provides that sovereigns and heads of States acting in a public capacity are to be included in the definition of'foreign state'. In addition, section 2(b) CSIA includes 'government of the foreign state' within the meaning of this term. In Kazemi Estate v Islamic Republic of Iran, the Supreme Court of Canada held in a claim brought against three named officials and a foreign State seeking damages for torture committed abroad that it was unclear, on the plain wording of the Act, who was covered by this provision. (8) The Supreme Court of Canada addressed this uncertainty by interpreting the wording in light of its context, as well as the purpose of the CSIA. In relation to the named public officials the Supreme Court observed: '[t]he reality is that governmental decisions are carried out by a state's servants and agents. …

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