Immunities as a special privilege is being provided under the private international law to persons having sovereign status, for not getting punished under a foreign law.

1. BY
ADV. CAROLINE ELIAS

2. THE BASIS OF JURISDICTION :
 Jurisdiction is meant the power of a court to hear and adjudicate an
issue on which a decision is sought.
 At common law, all persons in the world may invoke jurisdiction
of the English Court except an alien enemy. It is by his mere
presence within the territorial jurisdiction of the court.
 Physical presence in the sense that process has been served on him
personally is the only requirement for exercising jurisdiction. This
still continues to be the basic principle of English law, with certain
statutory modification.
 In England assumed jurisdiction was introduced by the Common
Law Procedure Act, 1825.
 In India, rules as to jurisdiction are found in the Code of Civil
Procedure.

3. EXEMPTION FROM JURISDICTION :
 Regarding the sovereign and sovereign states, English law will not
exercise jurisdiction over the person or the property of a foreign
sovereign state unless it is willing to submit to the jurisdiction.
 The Indian law governing jurisdictional immunity of foreign states
is prescribed in Sec. 86(1) of CPC.
 Universally, it must be noted that there are two distinct immunities
of the sovereign:
(1) Personal Immunity
(2) Proprietary immunity

4.  There are certain categories of people vested with
immunity from the jurisdiction.
 They are:-
(1) Foreign state. Its head, and its departments
(2) Persons entitled to diplomatic immunity; and
(3) Officials of international organizations including United
Nations and its Organs.
 Action against the persons of the above categories being
absent, no action ordinarily lies against their property.

5. PERSONAL IMMUNITY :
 There is no limit to personal immunity.
 Even if the sovereign comes under an assumed name, and enters
into commercial or other ordinary transaction in the guise of an
ordinary person, no action can be entertained against him, if he
objects to jurisdiction.
 This is illustrated in the case of Mighell v. Sultan of Johore
(1894 IQ B. 149)
It shows, an authority for the proposition that waiver of
jurisdictional immunity cannot be implied against a sovereign.
The waiver should be express and unequivocal.

6. Mighell v. Sultan of Johore
 The Sultan of Johore resided incognito (once true identity
concealed) in England and in that capacity, entered into a contract
of marriage with an English woman. Upon being sued for breach of
that contract, he revealed his identity and claimed immunity from
jurisdiction, a plea that was accepted by the court. This case
establishes that the rule of immunity extends to acts in private
capacity and also to the foreign sovereign’s commercial acts too.
 English private international law does not make a distinction
between acts of the foreign sovereign in the exercise of his official
powers and duties and acts of a non-official nature.
 Where the state is in a situation of revolution or the state is not so
well known in the international arena, that it may become difficult
to take judicial notice of such immunity’s availability, then the
foreign office may be contacted for such verification as may be
necessary.

7. SOVEREIGN IMMUNITY
 In International Law, sovereign immunity refers to the legal rules
and principles determining the conditions under which a State may
claim exemption from the jurisdiction of another State.
 Sovereign immunity is a creation of customary International Law
and derives from the principles of independence and equality of
sovereign States.
 Since States are independent and legally equal, no State may
exercise jurisdiction over another State without its consent.
 It is a limitation imposed by International Law upon the
sovereignty of a State. Although rules of sovereign immunity form
part of customary International Law, today they are incorporated
either in international treaties, such as the 1972 European
Convention on State Immunity, or in national statutes of certain
States, such as the 1976 U.S Foreign Sovereign Immunities Act
and the 1978 U.K State Immunities Act.

8.  Historically, the head of a State (a sovereign) was associated with
the State. Originally, both of them enjoyed under customary
International Law absolute immunity, in all areas of their activities,
from the jurisdiction of another State.
 While the head of a State continues today to enjoy such absolute
immunity, even for his private activities, a State nowadays enjoys
only qualified (restrictive) immunity.
 Under the qualified immunity, a State enjoys immunity only in
respect of its governmental acts (acts jure imperii), not in respect
of its commercial acts (acts jure gestionis).

9. Possibility of Waiver of Immunity :-
 Sovereign immunity covers the head of a State as well as the State
itself, its government, its departments, and its agencies.
 It embraces the acts of these entities, their property and assets.
 This immunity may, however, be voluntarily waived by a State.
 A State may waive its immunity from jurisdiction and consequently
submits itself to the jurisdiction of a foreign court.
 Waiver must be express; however, implied waiver is accepted if
indicated by the circumstances.

10. DIPLOMATIC IMMUNITY :-
 They are essential for the maintenance and efficient conduct of
relations between States.
 Prior to the 1961 Vienna Convention on Diplomatic Relations,
diplomatic law, especially privileges and immunities were based
upon custom as well as contained in bilateral treaties and national
statutes.
 Nowadays, most of the modern law of diplomatic immunity is
contained in the 1961 Vienna Convention on Diplomatic Relations
(VCDR) which both codified existing customary law and
established others.

11.  Under this convention, “a diplomatic agent” (the head of the mission
and any member of the diplomatic staff of the mission) enjoys complete
immunity from the criminal jurisdiction of the receiving State;
 Also, he enjoys immunity from its civil and administrative jurisdiction,
except in the case of real action relates to private immovable property
situated within the receiving State, action related to succession matters in
which he is involved as a private person, and action related to
professional or commercial activity, in the receiving State, outside his
official functions.
 No measures of execution may be forced upon him, except in the above
mentioned cases. He cannot be obliged to give evidence as a witness. His
person is inviolable (in destructible), He cannot be arrested or detained.
The premises of the mission and the private residence of a diplomatic
agent as well as their archives, documents, papers, official
correspondence and other property are inviolable.

12.  The immunity granted to a diplomatic agent is immunity from the
jurisdiction of the receiving State and not from liability. He is not
immune from the jurisdiction of the sending State. Moreover, he can be
sued in the receiving state after a reasonable time elapses from the
ending of his mission.
 The immunity of a diplomatic agent from jurisdiction of the receiving
State may be waived by the sending State.
 Members of the family of a diplomatic agent, if they are not nationals of
the receiving State, likewise enjoy the same immunity from jurisdiction.
The same immunity, with certain exceptions, is enjoyed by members of
the administrative and technical staff of the mission, together with
members of their families forming part of their respective households, if
they are not nationals or permanent residents of the receiving State.
Members of the service staff who are not nationals or permanent
residents of the receiving State enjoy immunity only in respect of acts
performed in the course of their official duties.

13. CONSULAR IMMUNITY :
 Consular officer, like a diplomatic agent, represents his State in
the receiving State.
 However, unlike a diplomatic agent, he is not concerned with
political relations between the two States, but with a variety of
administrative functions, such as issuing visas and passports,
looking after the commercial interests of his State, and assisting
the nationals of his State in distress.
 Thus, he is not granted the same degree of immunity from
jurisdiction as a diplomatic agent.
 Notably nowadays, many States combine its diplomatic and
consular services. Thus, a person who acts simultaneously as a
diplomat and consul enjoys diplomatic immunity.

14.  Under the 1963 Vienna Convention on the Consular
Relations, a consular officer (the head of the consular post
and any person entrusted to exercise consular functions) is
immune from an arrest or detention pending trial, except in
the case of a grave crime and pursuant to a decision by the
competent judicial authority.
 A consular officer enjoys the immunities from the moment he
enters the territory of the receiving State on proceeding to
take up his post or, if already in its territory, from the
moment when he enters on his duties.
 The same immunities are enjoyed by members of the family
of the consular officer from the date which he enjoys his
immunities. The immunities of a consular officer may be
waived by the sending State. The waiver must be express.