International Criminal Law and Foreign State Immunity

What is foreign state immunity?

Foreign states are generally entitled to be granted immunity from the jurisdiction of another state. This is known as foreign state immunity.

Foreign states are granted immunity from jurisdiction in Australian courts under the Foreign States Immunities Act 1985 (FSI Act). Any service of initiating process against a foreign state in Australia must be made in accordance with the provisions of this Act.

Prior to the passing of the FSI Act, the entitlement of foreign States to immunity from the jurisdiction of the courts of Australia was governed by the Australian common law.[1] Immunity to foreign States was previously absolute in relation to both jurisdiction and enforcement.[2]

The FSI Act presently represents the sole basis for foreign State immunity in Australian Courts.[3]

The Attorney-General of the Commonwealth, on a grant of leave from the Court, is entitled to intervene in cases in respect of the correct application of the FSI Act. The source of this entitlement is found under UCPR sub-rule 6.24(1) which allows the Court to join a “person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings”. [4]

 

General rule of immunity

Section 9 of the FSI Act stipulates:

General immunity from jurisdiction

Except as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding.

Section 3 of the FSI Act defines:

foreign State means a country the territory of which is outside Australia, being a country that is:

(a)  an independent sovereign state; or

(b)  a separate territory (whether or not it is self‑governing) that is not part of an independent sovereign state.

Unless the contrary intention appears, a reference in this Act to a foreign State includes a reference to:

(a)  a province, state, self‑governing territory or other political subdivision (by whatever name known) of a foreign State;

(b)  the head of a foreign State, or of a political subdivision of a foreign State, in his or her public capacity; and

c) the executive government or part of the executive government of a foreign State or of a political subdivision of a foreign State, including a department or organ of the executive government of a foreign State or subdivision;

but does not include a reference to a separate entity of a foreign State.

separate entity, in relation to a foreign State, means a natural person (other than an Australian citizen), or a body corporate or corporation sole (other than a body corporate or corporation sole that has been established by or under a law of Australia), who or that:

(a)  is an agency or instrumentality of the foreign State; and

(b)  is not a department or organ of the executive government of the foreign State.

Where section 9 of the FSI applies, the Court is deprived of jurisdiction to hear and determine a matter. However, the issue of immunity (or jurisdiction) is rightfully determined by the Court in circumstances where jurisdiction is denied by a potential defendant.[5]

 

Exceptions to Immunity under the FSI Act

The FSI Act stipulates that certain matters are subject of exceptions to the general foreign State immunity set out under s. 9 of the FSI Act. These defined exceptions are set out under sections 10-21 of the FSI Act and include:

  1. Section 10 – Submission to jurisdiction
  2. Section 11 – Commercial transactions
  3. Section 12 – Contracts of employment
  4. Section 13 – Personal injury and damage to property
  5. Section 14 – Ownership, possession and use of property etc.
  6. Section 15 – Copyright, patents, trade marks etc.
  7. Section 16 – Membership of bodies corporate etc.
  8. Section 17 – Arbitrations
  9. Section 18 – Actions in rem
  10. Section 19Bills of exchange
  11. Section 20 – Taxes
  12. Section 21 – Related proceedings

The proceedings the subject of these exceptions are also expressly required to have a territorial nexus with Australia.[6]

Section 22 of the FSI Act extends comparable immunity on separate entities.

Section 10 subsections (1) and (2) of the FSI Act Stipulate:

(1)  A foreign State is not immune in a proceeding in which it has submitted to the jurisdiction in accordance with this section.

(2)  A foreign State may submit to the jurisdiction at any time, whether by agreement or otherwise, but a foreign State shall not be taken to have so submitted by reason only that it is a party to an agreement the proper law of which is the law of Australia.

 

Bilateral Treaties

In the absence of an exception under sections 10-21 of the FSI Act, or of express language found within a Bilateral Treaty between the Government of Australia and a foreign Government, the foreign country is immune from the jurisdiction of the Courts of Australia.

The terms of Treaties between different countries will vary and will need to be referred to in each specific case. Generally, bilateral treaties deal with considerations such as mutual legal assistance in criminal matters and extradition, requests for witnesses to appear before judicial authorities, and the seeking of assistance outside the terms of the Treaty.

Examples of alternative methods of seeking assistance include the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 (Hague Service Convention) and the legislated scheme for service set out under s. 24 of the FSI Act.

 

Conclusion

Foreign states are granted immunity from jurisdiction in Australian courts under the Foreign States Immunities Act 1985.

Unless the Attorney-General of the Commonwealth or the foreign Government file an appearance or otherwise submit to jurisdiction by agreement, the question of jurisdiction will have to be resolved by the Court as a preliminary matter.

In the event jurisdiction is established by way of exception to general foreign State immunity, service should be effected either by virtue of the diplomatic channels set out under s. 24 of the FSI Act or in compliance with the requirements of the Hague Service Convention.

 

References:

[1] Firebird Global Master Fund II Ltd v Republic of Nauru [2015] HCA 43 at [5].

[2] Rosa v Bolivarian Republic of Venezuela [2019] ACAT 33 at [7].

[3] Firebird Global Master Fund II Ltd v Republic of Nauru [2015] HCA 43 at [5].

[4] Yan Xie v Chen Shaoji [2008] NSWSC 224 at [7] – [34].

[5] Zhang v Zemin [2008] NSWSC 1296 at [34].

[6] Firebird Global Master Fund II Ltd v Republic of Nauru [2015] HCA 43 at [10].

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