What is Immunity from Jurisdiction?

Immunity from jurisdiction refers to the

protection certain entities or individuals have from being subject to the legal authority
(jurisdiction) of a particular court system. In international law, this protection is often
extended to foreign states, diplomatic agents, and international organizations.
Essentially, it means that these entities cannot be sued or brought to trial in the courts
of another state without their consent.

Sovereign(state) Immunity:-Sovereign immunity is a legal concept that protects

sovereign states from being subjected to the jurisdiction of foreign courts without their
consent. In simpler terms, it means that one country's government, or a sovereign entity
within it, cannot be sued or prosecuted in the courts of another country without its
agreement.In this scenario, those seeking reparations would have to pursue other
avenues, such as diplomatic channels, to address their grievances. This could involve
negotiations between the two countries, possibly mediated by international
organizations or through diplomatic interventions by third-party countries

Reason for Immunity (all states are equal):-The principle of sovereign equality of
states is a fundamental concept in international law, enshrined in Article 2.1 of the
United Nations Charter. This principle recognizes that all sovereign states, regardless
of their size, population, wealth, or power, are equal in terms of their legal status and
rights within the international community.

Scope of Soverign Immunity:

Soveriegn Immunity applies o

1. States

2. Heads of State(president , PM , King , Queen etc)

3. State government agencies that are conducting State business

Absolute Immunity: Absolute immunity refers to complete protection from legal

proceedings, both civil and criminal, in foreign courts. It typically applies to certain
individuals and entities based on their official status or the nature of their actions. Here
are two examples:

1. Foreign Head of State: A foreign head of state, such as a president or monarch,

enjoys absolute immunity from civil and criminal prosecution during and after
 their time in office. This means they cannot be sued or prosecuted in foreign
courts for actions taken in their official capacity, regardless of the nature or
purpose of those actions.

2. Total Sovereign Immunity: Absolute immunity can also extend to the state
itself, providing total immunity from suit in other states for any acts, regardless of
whether they are commercial, political, or non-commercial. This means that a
foreign state cannot be sued in foreign courts under any circumstances without
its consent.

Restrictive Immunity: Restrictive immunity, on the other hand, limits immunity to

certain types of acts or entities, particularly when they involve commercial activities.
Here's how it works:

1. Entities Owned or Operated by Foreign Governments: Most states no longer

extend absolute immunity to entities owned or operated by foreign governments,
especially when those entities engage in commercial activities. For example, if a
state-owned company is operating as a trader, competing with other private
merchants in the market, it may not be given immunity from legal action in
foreign courts.

2. Restrictive Standard: Many states now apply some form of the restrictive
standard for resolving sovereign immunity questions. This means that immunity is
determined based on the nature of the act or entity in question, rather than
granting blanket immunity to all government-related activities.

Distinguishing between Absolute and Restrictive Immunity:

To distinguish between absolute and restrictive immunity, consider the following criteria:

 Sovereign versus Private: Absolute immunity typically applies to sovereign entities,

such as foreign states and their heads of state, whereas restrictive immunity may apply
to entities owned or operated by foreign governments but engaged in commercial
activities.

 Public versus Private: Absolute immunity often applies to governmental or public acts,
while restrictive immunity may apply to commercial or private activities undertaken by
government-owned entities.
 Commercial versus Non-commercial: Absolute immunity may extend to all types of
acts, including commercial and non-commercial activities, whereas restrictive immunity
usually applies to commercial activities but may not cover non-commercial
governmental actions.

 Political versus Trade-related: Absolute immunity may cover political acts and
decisions made by foreign states, whereas restrictive immunity typically applies to trade-
related activities undertaken by government-owned entities.

Jure Gestionis: This is a Latin term that translates to "by right of administration."
Jure Gestionis refers to activities undertaken by a government or its agencies that are
commercial or business-related in nature. When a government engages in commercial
activities, it may not be entitled to sovereign immunity for those specific activities
because they are not considered sovereign functions.

 Purpose of the Transaction: This refers to the reason behind a particular

business or legal transaction. In the context of sovereign immunity and jure
gestionis, it's important to determine whether the transaction in question is of a
commercial nature (jure gestionis) or involves sovereign functions (jure imperii).
Transactions undertaken for commercial purposes may not be protected by
sovereign immunity.

 Nature of the Transaction: This relates to the characteristics of the transaction

itself. For example, if a government entity enters into a contract with a private
company to purchase goods or services, that transaction would likely be
considered commercial in nature. On the other hand, if the government is
performing a regulatory function or exercising its sovereign authority, such as
enacting laws or collecting taxes, those activities would typically be considered
sovereign functions.

Theories for soverign immunity:-

1. Absolute Theory:

a. This theory suggests that a foreign state is completely immune from the
jurisdiction (legal authority) of the courts of another sovereign state. In
simpler terms, it means that one country's courts cannot exercise legal
authority over another country without its consent.
 b. Under this theory, foreign states are shielded from legal proceedings in
other countries regardless of the nature of the activity or the
circumstances involved.

2. Restrictive Theory:

a. This theory, on the other hand, introduces a limitation to sovereign

immunity. It suggests that while foreign states may generally be immune
from the jurisdiction of other countries, there are exceptions, particularly
concerning certain types of activities.
b. According to the restrictive theory, foreign states are immune from legal
proceedings in other countries regarding their "public acts" (acta jure
imperii). These are actions that are considered sovereign functions, such as
decisions related to national defense or foreign policy.
c. However, foreign states are not immune from legal jurisdiction for their
"private acts" (acta jure gestionis), which include commercial activities. So,
if a foreign state engages in commercial activities within another country,
it may not be immune from legal actions related to those activities

United States officially adopted the restrictive approach to state immunity through
the enactment of the Foreign Sovereign Immunities Act of 1976 (FSIA)

Act of State Doctrine: This doctrine is a legal principle that says courts in one
country should not judge the validity of acts performed by another country within its
own borders. In simpler terms, it means that courts in one country shouldn't interfere
with the decisions or actions made by another country within its own territory. This is
based on the idea that each country is sovereign, meaning it has full control over its
own affairs within its borders.

So, when we put these two concepts together, it means that if a foreign country takes an
action within its own borders, the courts of another country, like the United States,
generally won't question the legality or validity of that action. This is because doing so
could interfere with the foreign policy of the country where the action took place.

For example, if Country A nationalizes a foreign-owned company within its borders, the
courts in Country B (say, the United States) generally wouldn't hear a case brought by
the company challenging the nationalization. This is because it's considered an act of
the sovereign government of Country A within its own territory, and it's not the place of
the courts in Country B to interfere with the internal affairs or decisions of Country A