Head Of State Immunity In International Law

Abstract

The objective of this research is to examine head of state immunity in the light of the recent developments in the international law. In order to achieve this objective it was primarily essential to discuss the jurisprudential rationale of head of state immunity and state immunity in general by shedding a light on some of the main principles; secondly, to compare and contrast the leading cases that have enriched the doctrine of head of state immunity in order to further detect the development of the doctrine; thirdly, the development of the major international criminal tribunals and their effect on the doctrine of head of state immunity and finally the conclusion and recommendations that resulted from the research. The methodology used in this research is the comparative and analytical approach. This research analyzes the similarities and differences between the common law and continental law and within the common law the US legislation in comparison with the UK legislation. This research also analyzes the different court decisions made on the matter by the House of Lords in the UK and the International Court of Justice. In addition this research also analyzes the development of the international criminal tribunals that deal with the doctrine of head of state immunity. With the establishment of the United Nations the term absolute sovereignty has shrunk to restrictive sovereignty. A State can no longer act as it pleases within its territory without being reminded by the international community to respect the UN Charter and international law in general. With the change in sovereignty also came a change in immunity granted to the state and the head of state. The change I am referring to is the doctrine of restrictive state immunity which came into effect in the nineteenth century. States were no longer absolutely immune in respect of commercial transactions. This change raised a question as to whether the symbol of sovereignty of the state reflected in its head of state had also restrictive immunity as regards to acts committed by him while in office, in particular international crimes; and if not whether the sovereignty and equality of states will be jeopardized once a foreign court decides to hear a case against the head of state?