Jurisdictional Immunities in Comtemporary International Law From Asian Perspectives

# The Author 2005. Published by Oxford University Press. All rights reserved.
Advance Access publication 26 April 2005

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Jurisdictional Immunities in
Contemporary International
Law from Asian
Perspectives1
Sompong Sucharitkul
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Abstract
This study is part of a series of inquiries being made to ascertain the extent and prac-
tical usefulness of the part played by Asian nations in their individual and collective
contribution to the norms-formulating functions of Asian States as members of the
global community. The current paper is confined to the three areas of jurisdictional
immunities in the practice of States under contemporary international law. The first
part relates to Asian practice and the practice of other nations affecting Asian com-
munities in regard to the Immunities of States and their Property from the jurisdic-
tion of other national entities. The second part deals with the current practice of
diplomatic and consular immunities, available also to ad hoc or Special Missions.
The third part concerns the immunities accorded by States to international organi-
zations or in connection with the exercise of their official functions. The final part
contains concluding observations calling for meticulous care and attention to find
a practical approach to the nature and extent of immunities needed and the necessity
to maintain a delicate balance between the interests of the donors and recipients of
immunities so as to avoid possible abuses. Asian and non-Asian nations alike are
equally grantors and beneficiaries of immunities under review.
I. Introduction
I.A. Essential concepts identified and proposed study outlined
This paper is the second in the series of research studies undertaken collectively by Asian legal
scholars under the auspices of the Foundation for the Development of International Law for
1 # 2005 by Sompong Sucharitkul. This original version in English is dedicated as a contribution by Asia to the
progressive evolution of rules of the contemporary international law of immunities from the jurisdiction of
national authorities as it relates to Asian experience and perspectives.

Associate Dean and Distinguished Professor of International and Comparative Law, Golden Gate University
School of Law, San Francisco, USA; former Ambassador of Thailand; former Member and Special Rapporteur
of the International Law Commission on Jurisdictional Immunities of States and Their Property; Member of the
Institut de Droit International; Corresponding Collaborator of UNIDROIT (email: ssucharitkul@ggu.edu).
....................................................................................................................................................................
Chinese Journal of International Law (2005), Vol. 4, No. 1, 1 –43 doi:10.1093/chinesejil/jmi001
2 CJIL (2005)
Asia (DILA) to disseminate the knowledge of international law and to promote its under-
standing and appreciation, particularly from Asian perspectives. The first contribution by
the author was entitled: ‘‘Les Perspectives Asiatiques de l’Evolution du Droit International:
l’Expérience de la Thaı̈lande au Seuil du Troisième Millénaire’’ (1999).2
A constant theme that distinguishes this monograph from other studies on the topic of
jurisdictional immunities by the same author, such as a course of The Hague Lectures in
19763 and a more recent course of lectures published under the sponsorship of Centro
Euro-Mediterráneo (2002),4 is highlighted by a special emphasis placed on the events,
situations, decisions and national or international case laws having direct or indirect effect
or bearing on Asia, or relating to Asian affairs, or involving Asian States, territories, entities

or agencies, and institutions of Asian connection, descent or extraction.
It is proposed in this study to conduct a survey of the practice of States, primarily Asian
States and also of non-Asian States, but which affects Asian States, and which materially con-
tributes to the progressive development of current norms of international law of immunities
from the jurisdiction of national courts and other administrative authorities. The survey will
trace historical developments of State practice in regard to three main categories of juris-
dictional immunities under contemporary international law, namely State immunities,
diplomatic and consular immunities and immunities accorded to international organizations
in respect of themselves, their activities and their accredited representations. As outlined, the
three main parts of this study will cover the above types of immunities from jurisdiction,
recognized by current international law. These principal substantive parts will be followed
by the final Part, which, it is hoped, will warrant appropriate tentative conclusions indicative
of the current trends and future developments of relevant norms of international law.
I.B. Limited role of Asia in the initial making of international norms

The topic under present study is essentially limited in its treatment, which, in principle as
well as actual practice, is confined to but a minor or partial contribution, if any, which
Asian experience may be said to have given to the formative evolution of norms of inter-
national law. In spite of their geo-political significance, Asian nations did not initially
play any decisive part in the making of rules of international law. It was not until the law
of jurisdictional immunities, as it is understood today, had taken a firm root in the practice
of States in general that, though only marginally and in isolated and occasional instances, the
practice of a very few Asian States began to make a noticeable contribution to the progressive
2 This French version was dedicated to Judge Mohammed Bedjaoui, President of the ICJ at The Hague, Emile
Yakpo and Tahar Bousmedra (eds), Journal of the African Society of International and Comparative Law,
London (1999), a Liber Amicorum for Mohammed Bedjaoui, 241 –251 (1999), Kluwer Law International.
An English version dedicated to Confrère Li Haopei was published in I(2) Chinese JIL (2002), entitled Evol-
ution of International Law from Asian Perspectives: The Experience of Thailand at the Threshold of the Third
Millenium.
3 State Immunities before National Authorities, I Recueil des Cours de l’Académie de Droit International (1976),
89 –215.
4 Cursos de Derecho Internacional, VI Tomo (2002), 701 –756, Centro Bancaja para la Paz y el Desarollo,
Castellón, Espaňa.
Jurisdictional Immunities in Contemporary International Law 3
development of international law on the subject under review. The reasons for this marked
absence of a more substantial contribution from Asia deserves particular attention and calls
for a revisit to the original perception of jurisdictional immunities in all its forms and
manifestations.
A number of practical and historical reasons commend themselves in support of the pre-
ceding proposition, although far from being obvious or, at first encounter, convincing, they
nonetheless are worthy of our closest scrutiny and critical analysis.
I.C. Non-Asian origin of contemporary international law

Although it is uncontested today that international law is universal and applies to all States,

regardless of their size, political coloration or geographical location, it has been said and con-
firmed, time and time again, that current international law is the product of the growth and
progressive development of a body of rules of international law that originated from Europe
as a result of the end of the Thirty-Years War, whereby the Treaty of Westphalia, concluded
in 1648, established the principle of equality of European States, which became equal
and independent from the Holy Roman Empire. Until then, with the exception of the
United Kingdom which was ex-communicated, the European heads of States were invariably
crowned by His Holiness the Pope. This traumatic incident—the splitting of the Holy
Roman Empire into several equally sovereign and independent European states—
necessitated the advent of a new international law without hegemony and without predomi-
nation by any individual nation or congregation.
This theory did not challenge the pre-existence or co-existence of other nation-States in
Asia, or elsewhere. Indeed, non-European nations were anxious to be treated as equal with
the European States under the same European Law of Nations. Little by little only did
this European international law extend its application to other ‘‘unequal’’ non-European
States.
I.D. Entitlements of the United States of America

When international law was established in the middle of the seventeenth century, no State on
the new American Continents, North or South, was recognized as an independent nation,
automatically entitled to the application of European international law. It was not until
the United States won its war of independence in 1776 that Europe began to take notice
of the New World, with the new State being treated by the European world as a subject
of international law, susceptible to rights and obligations under international law, though
still far from being equal.
It is not surprising that the United States did try its best to be noticed and to receive reco-
gnition as an equally sovereign and independent State. International exchanges of diplomatic
missions reflected the discrepancy or rather discrimination whereby European crowned heads
would hesitate to treat newly emerged nations outside Europe, such as the United States, as
their equal. The diplomatic ranks and files with which the European States traditionally
exchanged with themselves inter se were generally of ambassadorial status, while, with
newly emerged young nations like the United States, the diplomatic exchanges were
4 CJIL (2005)
invariably at a rank below ambassadorial, i.e. ministerial. It also follows that the Ministers
heading the missions would have ‘‘legations’’, and not ‘‘embassies’’, under their care.
Historians not well versed with the Treaty of Aix-la-Chapelle,5 which relates to the ranks
and honors to be reserved for diplomatic heads of missions, would not readily appreciate the
lack of normal courtesies traditionally due to a head of diplomatic mission. Diplomatic
history appears to belong to older nations with experience and a profound understanding
of the treatment expected under the modern law of nations.
It should be observed, on the other hand, that current sociologists and historians in the
United States today have started doubting the existence of international law, believed to
have been established by the European States through the Treaty of Westphalia (1648). It

would not come as a surprise if a great many US political scientists did not believe in the
European origin of the law of nations, or the binding character of international law for
that matter. Whatever the current thinking of members of other non-legal disciplines in
the United States, one thing is borne out in the judicial practice of the United States.
As early as 1812,6 Chief Justice John Marshall of the US Supreme Court might truly be
credited with the very first concrete formulation of a very precise and systematic statement or
re-statement of the European international law of State immunities. In that same case invol-
ving The Schooner Exchange—requisitioned by a Napoleonic decree, to be fitted as a French
man-of-war to take part in yet another phase of Napoleonic War, a European war uncon-
nected with the United States—the knowledgeable Chief Justice referred to three classes
of cases of jurisdictional immunities, namely, (1) immunities of a foreign sovereign State;
(2) immunities of foreign visiting forces; and (3) immunities of heads of diplomatic
mission (using the expression ‘‘minister’’, as distinguished from a higher level of diplomatic
representation, i.e. with the rank of ambassador as head of chancery of an embassy).
While the US administration may have successively maintained a policy of isolation based
on non-intervention or non-interference with the domestic affairs of other States, the Courts
of Law of the United States strictly adhered to principles of international law from the time
of Chief Justice Marshall in 1812 right through to Justice Gray in 1900.7
During the nineteenth century, however, the Europeans took little or no notice of the
existence of the United States of America. The Congress of Vienna 1815 was strictly a
matter of European affairs. Even the first Hague Peace Conference in 1899 was of no
concern to the United States. Nonetheless, the Congress of Berlin 1885 saw the United
States taking an active part in the ‘‘Grab for Africa’’, sharing with European powers for
the first time the partition of the wealth of African territories. This was not inconsistent
with the theories advanced by US Justices that Native Americans had no concept of owner-
ship of land, let alone territory: the dispossession of territories or lands from the original
5 See the Congress of Vienna (1815).

6 See the Schooner Exchange v. McFadden 7 Cranch (1812), 116.
7 See Justice Gray in The Paquete Habana (1900). 175 US 679, 20 S.Ct 290, 44 L.Ed. 320, citing an order of
1406 of Henry IV of England, placing all fishermen of France, Flanders and Britanny under his special protec-
tion, and a host of other European States practice, including Louis XVI of France, 1779.
lawful occupants would not satisfy the definition of unlawful ‘‘taking’’, which would
generate the need for payment of appropriate compensation.
The United States eventually joined the European nations and other Asian and Latin
American States at the Second Hague Peace Conference in 1907.8 By then, the United
States was totally absorbed into the integrated system of European international law. For
the doctrine of State immunities, in any event, it would not be an exaggeration to assert
that the United States could, in good conscience, claim to have had a fair share in the
initial articulation and subsequent elaboration of rules of international law through its
successive State practice.
I.E. Gradual extension of international law to Asian nations

During the height of the European colonial expansion, especially in the nineteenth and early
twentieth centuries, most Asian nations had fallen victim to the Western expansionist move-
ment, with very few exceptions in East and South-East Asia—namely China, Japan and Siam
or Thailand. In West Asia, Iran (Persia) and Turkey were in a position comparable with their
East-Asian neighbors. One by one, from China to Japan, Asian nations had become engulfed
in the European-imposed régime of extraterritoriality, whereby European nationals were
treated as being outside Asian national territories even though actively present therein.
Thailand voluntarily followed Japan.9 Persia and Turkey were subject to a similar but
slightly different nomenclature of ‘‘Capitulation Régime’’ of extraterritoriality for nationals
of European States. US citizens were also accorded a similarly privileged position in each of
these independent sovereign Asian States.
By the end of the First World War, Turkey—which was once part of the Ottoman Empire
and formerly the Eastern Empire of Rome when Istanbul was Constantinople, the capital
of the Roman Byzantine Empire—succeeded in reorganizing the exercise of respective
jurisdictions with other European nations since the Convention of Lausanne 1923.10 Iran
narrowly escaped colonization but had to make oil concessions to the Anglo-Iranian Oil
Company11—a corporation wholly owned by the British Government. Thus, European-
made international law was not applicable fully to Turkey and Iran until well after the
end of the Second World War.
China, Japan and Thailand were each, in turn, subjected to a European régime of
extraterritoriality: China as the result of the Treaty of Tientsin (1839)12 and the
8 See Hudson, International Legislation, Vols I and II, and the Hague Peace Conferences (1899 –1907).
9 It was a conscious decision on the part of Siam, although practically of its own choice and volition. Yet, it was with
an awareness of undesirable consequences, as amply demonstrated by events occurring in China and also in Japan.
10 The Lotus, Turkey v. France (1927) PCIJ, Series A, No. 10. 2 Hudson’s World Court Report 20. The Boz-
Kourt in the Lotus Case 1926, the Convention of Lausanne 1923, Art.15(1): ‘‘All questions of jurisdiction
as between Turkey and the other Contracting Parties shall be decided in accordance with the principle of inter-
national law.’’
11 For subsequent nationalization of Iranian Oil industry, see the Anglo-Iranian Oil Co., UK v. Iran, ICJ Reports
1951, 89.
12 The Treaty of Tientsin (1839) marked the end of the Opium War, a classic example of European collective
action against China’s objection to the import of opium from British India.
6 CJIL (2005)
Treaty of Nanjing (1842);13 Japan as a consequence of Commodore Perry’s display of

United States Gunboat Diplomacy in 1850;14 and Thailand—or Siam, as the
Kingdom was more generally known to the European at that time—by a series of Treaties
beginning with the Bowring Treaty with the United Kingdom in 185515 at the initiative
of King Mongkut (Rama IV) and treaties with other European powers subsequently nego-
tiated by Sir John Bowring, the retired former United Kingdom Ambassador to Siam,
then knighted as Phra and later Phya or Phraya Siamanukoolkij or Sayamanukun-
kich—hence the ‘‘Bowring Treaties’’.16
These series of Treaties were regarded by China, Japan and also Siam as ‘‘unequal trea-
ties’’. For China, it took roughly 100 years, until Pearl Harbor (1941),17 to abolish and

certainly, by 1945, when China became permanent member of the Security Council
under the UN Charter, thereby rebutting any presumption of failing the test of a ‘‘civi-
lized nation’’. Japan was the first of the three Asian countries to cross the line to join the
rank and file of European ‘‘civilized nations’’ by 1898,18 when Japan decided to adopt the
final draft of the German Civil Code, even prior to its formal acceptance by the
German Reich. The test, or the standard of civilization19 or measures of Westernization
or rather Europeanization, can be satisfied by the adoption of legislation or codification
modeled after the European civil codes to be known and comprehensible to the ‘‘civilized
world’’.
Thailand again followed Japan, but took a much longer path to achieve final legislation or
adoption of its civil and commercial code and other codes of civil and criminal procedures,
thereby eventually lifting the vestiges of ‘‘unequal treaties’’ between the First and Second
13 The Treaty of Nanjing (1842). See Gerrit Gong, The Standards of ‘‘Civilization’’ in International Society
(1986), Oxford, 136 – 138, the Treaty of Nanjing was followed by the Treaty of Bogue (1843), the Treaty
of Whanghai (1884) and the Treaty of Whampao (1884), which formed the basis for unified Western relations
with China. See also Sompong Sucharitkul, Rebirth of Chinese Legal Scholarship, 3(1) Leiden JIL (1990).
14 Japan was forced to open its ports to US trade and subsequently was subjected to a regime of extra-territoriality,
which persisted until 1911, following Japan’s defeat of the Russian fleet in the Russo –Japanese War 1904.
15 This was the first in a series of Treaties of Friendship and Commerce concluded by Siam with the United
Kingdom in the first place in Bangkok on 18 April 1855, then with other Western powers, negotiated by
former British ambassador to the Kingdom of Siam, Sir John Bowring, in the employ of the Royal Siamese
Government since Sir John’s retirement from the British diplomatic service.
16 See the Treaty of Friendship and Commerce between Siam and Great Britain, signed in Bangkok, 18 April
1955; Treaty Series of Thailand, 1 [1617– 1869], Bilateral Treaties between Thailand and Foreign Countries
and International Organizations, published by the Ministry of Foreign Affairs, Bangkok, Thailand, 1968, 37 –
46; See also State Papers of the Kingdom of Siam, 81 –93.
17 The UK Government only agreed to the abolition of extraterritoriality over Shanghai after the attack on Pearl
Harbor by Japan on 7 December 1941, which was published on 10 October 1942 (Double Ten).
18 See Edwin O. Reischauer, The Japanese (Harvard, 1977), 81 –102: The Constitutional System. By 1899, the
British, impressed by Japan’s modernization, agreed to relinquish their extraterritorial privileges, and other
Western nations followed suite. By 1911, following Japan’s victory over Russia in the Russo–Japanese War
1904, Japan succeeded in removing all vestiges of extra-territorial privileges.
19 See Gerrit Gong, The Standard of ‘‘Civilization’’ in International Society (Oxford, 1986), 136 –138, cited
above n.12.
World Wars, as signatory to the Treaty of Versailles in 191920 and a member of the League
of Nations from the start and of the UN in 1946.21
It should be observed that in spite of the continued persistence and application of the
extraterritorial régime, China, Japan, Iran and Siam were invited to attend the first and
second Hague Peace Conferences of 1899 and 1907. At least to a considerable extent, the
invitations reflected recognition by the Organizers of the Hague Peace Conferences that
these Asian countries satisfied the test of civilization to be invited to participate in the
Conferences, while the United States of America only attended the Second Hague Peace
Conference and was not authorized by Congress, or otherwise predisposed to become an
active member of the League of Nations set up after the end of the First World War.

Today, it can no longer be said that international law only applies to the European States
and not to the rest of the world. International organizations of universal character, such as the
UN, are open to membership by all States, European or non-European, subject only to
certain prescribed conditions of qualifications and procedures for admission.
I.F. Order of treatment of the subject matter

Precisely how, where and in what way Asian contributions may be measured and evaluated
for the specific purpose of the present inquiry remains to be investigated and further exam-
ined at close range. Owing to the different chronology and time-frame of their adoption and
development in the practice of States, the current rules of international law on jurisdictional
immunities from foreign national authorities will be treated in accordance with the classifi-
cation which has been adopted analytically for practical convenience and meaningful pur-
poses. Three areas of immunities of States, their diplomatic missions and consular posts,
and State-created inter-governmental organizations from jurisdiction of national courts
and other authorities will be examined one by one, beginning with:
1. State immunities;
2. diplomatic and consular immunities; and
3. immunities of international organizations.
II. Jurisdictional immunities of States from national courts of

other States
II.A. Asian contribution to the making of rules of international law
As amply demonstrated in the preceding Introduction, international law came into existence
and operation originally among European nations. Therefore, Asian nations or other non-
European nations, such as the United States of America, which became independent
20 See the Treaty of Versailles (1919), 28 June 1919, 13 AJIL Supp. 151 and 16 AJIL Supp. 207. Compare also
the Austrian Peace of St Germain (10 September 1919) and the Hungarian Treaty of Trianon (4 June 1920).
21 Thailand was not an original signatory to the San Francisco Charter, and had to negotiate with Permanent
Members of the Security Council to clear its entrance to the UN.
8 CJIL (2005)
nearly 150 years after the birth of contemporary international law, could not have contrib-
uted very substantially at the beginning to the formation of rules of international law.
However, in this very field of State immunities, where legal developments depend more
specifically on the practice of States, it is gratifying to see that the very first classic dictum
of international law rules ever formulated and pronounced by national courts in so lucid,
authoritative and unequivocal terms can be found in the judicial pronouncement of none
other than the Chief Justice of the US Supreme Court in The Schooner Exchange
v. McFaddon (1812).22 This does not mean that there were no European national decisions.
In fact, the English Case of The Swift 23 (1813) followed suit in the ensuing year, and there
were even earlier English Admiralty decisions to a similar effect but not so well known, or one
recognized as a cause célèbre. 24

II.A.i. Absence of Asian State practice in the formative years of State immunities
For convenience sake, the practice of Asian States in the formative period of the doctrine or
principles of State immunities was virtually non-existent, as it was not until well into the
twentieth century, after the First World War, that independent Asian States were gradually
recognized by the Western world or the European Powers as members of the international
community of nations, on an equal footing with European and other non-European
States on the American continents and elsewhere.
At the beginning of the nineteenth century, and indeed by the middle of that century, it
could be said that the doctrine of State immunities had been firmly established in the practice
of European States,25 if not indeed as precisely as formulated, enunciated and declared by the
Supreme Court of the United States of America in 1812.26
One explanation for the singular silence or absence of the practice of Asian States on this
very question of State immunities resides not in that they were not accorded the status of
equality of sovereign States, but more indubitably in the fact that the legal order in Asian
nations had not yet developed any system of recording or publishing reports of judicial
decisions, let alone any possibility or likelihood of a foreign State, or Western State, being
proceeded against before an Asian court of law or justice.
Asian literature existed much earlier in prose and in verse, as in the vedas and the written
recorded teachings of the Lord Buddha, using palm leaves, which were kept folded like closed
books that could be read when each section of the leaves was turned over. Nonetheless,
22 7 Cranch 116 (1812), cited above n.4.

23 The Swift (1813), Dods 320, see Lord Stowell, 338 –339.
24 See, e.g. The Twee Gebroeders, 3 C. Reb. (1800), 162; The Helen, 3 Rob. (1801), 324; The Anna, 5 C. Rob.
(1805), 375. For later cases, see, e.g. The Comus, ref. in 1 Dods (1810), 264; and the The Prins Frederik,
2 Dods (1820), 451.
25 See, e.g. (France) Le Gouvernement espagnol c. Cassaux (1849), 22 Janvier 1849, D 1849-I-5, 7; J.Pal. 1849-I-
16; S. 1849-1-81, 95, 93, and DP 1849-I-5, 9; (Belgium) Société générale pour favoriser l’industrie nationale
c. Le Syndicat d’amortissement, le Gouvernement des Pays-Bas, et le Gouvernement belge, Cour d’Appel,
30 décembre (1840), PB 1841-II-33, 52 –53; and (Italy) Guttieres c. Elmilik (1886), F.It. 1886-I-913;
HD, 622 – 623 (Harvard Draft Convention, 26 AJIL (1932), Supplementary Volume, Part I).
26 (1812) 7 Cranch 116, 136 –137; compare Hackworth II-393, Digest of International Law.
judicial decisions were not recorded and no record was kept, except in the form of compi-
lation of codes of law. Jurisprudence in the sense of case law was not known until much later.
It should be recalled27 that by 1859, when the principles of State immunities were settled
in the case law of the Western world, there were very few nations left in Asia that could still
maintain their political independence and none was free of Western colonial expansionism
or domination. Indeed, the largest and one of the oldest nations of East Asia, the Celestial
Empire, succumbed to the regime of extra-territoriality imposed by the Western world, with
the use of Gun Boat Diplomacy, since the 1840s. The Empire of the Rising Sun, before
undertaking drastic reform under the Meiji Restoration, similarly fell under the United
States and other Western regimes of extra-territoriality. Siam or Thailand, the last hope of

Asian independence from the regime of extra-territoriality, finally found itself inevitably
drawn, willingly or otherwise, into the same status as Japan and China.
The first Asian Special Rapporteur of the International Law Commission was once ques-
tioned by another Asian member of the Commission from Lebanon as to the reason for not
including even one example of case law from Asia in the International Law Commission
Report regarding the formation of rules of international law which were apparently based
on the practice of only a handful of European and other Western nations. The Special
Rapporteur was obliged to disclose the shameful truth that—for more than half a century
during the formative period of customary rules of international law on the subject of
State immunities—not only foreign sovereign States but even foreigners (i.e. Europeans,
Americans and other Western and subsequently also colonial subjects of Western nations,
although of Asian descent or origin) were not subject to the jurisdiction of otherwise com-
petent authorities of Asian Courts, even the most independent and autonomous of all Asian
Courts, i.e. Japanese, Chinese and Siamese. How on earth could their colonial masters—
Western governments and European States—need to claim to be entitled to jurisdictional
immunities from the Asian Courts to whose jurisdiction they were not subject to in the
first place?
What was more, the European nationals and States were not even subject to Asian law, nor
to Asian jurisdiction. They were deemed to be outside Asian territories, though actually
within. Rather, they were above, if not outside, the law and the jurisdiction of the territorial
States of Asia and remained beyond the reach of the otherwise competent judicial authorities
of Asian nations.28 What is worse, the Asian colonial subjects of Western powers were also
included in the categories of beneficiaries of the regime of extra-territoriality of their co-Asian
independent sovereign States.29
27 See, e.g. the decision of the Cour de Cassation in Gouvernement Espagnol c. Cassaux (1849), cited above n.24,
Recueil périodique et critique de jurisprudence et de doctrine, Paris; Dalloz, 1948-I-6; Recueil général des lois
et des arrêts, Sirey 1849-I-83, I. M. Devill in a footnote, 81 –86.
28 See Yearbook of the International Law Commission (1980), Vol.II (Part I), 199; ibid. (1980), 195 et seq., and
also ibid. (1982), Vol.I, 159 et seq.
29 Thus, at the law schools of several Asian universities, the term ‘‘extra-territoriality’’ has acquired a somewhat
benevolent sense, while to the ears of the Chinese, Japanese and Siamese of a bygone century or the current
century, the expression ‘‘extra-territoriality’’ is an ugly word and smacked of bygone imperialism, if not outright
Western colonial expansionism.
10 CJIL (2005)
II.A.ii. Asian States as beneficiaries of State immunity in the formation of rules of

international law in general State practice
True it is that Asian States contributed little or nothing to the making of rules of international
law of State immunities in their practice—judicial, governmental or legislative—at the initial
stage of the formation of rules of international law. On the other hand, Asian States, their
political subdivisions, their organs and State properties had a substantial part to play in the
evolution and formation of rules of customary international law of State immunities, even
in their early phases of development, not as developers or makers of State immunities, but,
curiously enough, as beneficiaries for the enjoyment of the application of that doctrine.
II.A.ii.a. Extension of State immunities to Asian beneficiaries regardless of apparent lack of sover-

eign equality or undeclared status. Progressive developments in the practice of States, confined
mainly to European States and the United States in the nineteenth century, indicate varying
theories of national origin of foreign State immunities, not infrequently based on the analogy
of the immunities of the local sovereign or the territorial State itself from its own national
territorial or local jurisdiction, emanating as it did from the historic doctrine whereby
‘‘The King can do no wrong’’ or, more technically, ‘‘The King cannot be sued in his own
Courts’’. As such, nor can a foreign monarch be sued in the King’s Court, whether as a
matter of courtesy, comity, reciprocity, expediency or legal obligation.
Thus, English case law recognized sovereign immunity or State immunities for the Sultan
of Johore in Mighell v. The Sultan of Johore (1894),30 even though the Sultan came to England
incognito, otherwise known as Mr Baker Whell. Johore was only part of the Straits Settlement
under the sovereign authority of the United Kingdom at the time. The Sultan was, however,
an oriental potentate or, at best, described as a semi-sovereign prince, not really foreign to the
British Government nor indeed fully sovereign or independent of British Rule. Nevertheless,
the practice of according normal courtesies was extended to all sovereign and semi-sovereign
princes by the English Crown as well as by other European Crowned Heads of State, whether
or not they were treated as aliens or simply as part of the Commonwealth or the Union.
II.A.ii.b. An agreement to submit to jurisdiction by an Asian governmental entity does not extend
to execution or enforcement measures. British Courts have been consistent in upholding the
immunities of member States within the Commonwealth and semi-sovereign States depen-
dent on the United Kingdom. Thus, the decision of Lord Esher M.R. in Mighell v. The
Sultan of Johore (1894)31 was confirmed by the House of Lords in Duff Development Co.
v. Kelantan Government (1924).32 It was further held that by assenting to the arbitration
clause in a deed, and by applying to the Courts to set aside the award of the arbitration,
30 I QB [1894], 149; see also immunities extended to another Sultan of Johore in Sultan of Johore v. Abubakar
(Tunku), AC [1952], 318; Joyce v. Bahawalpur State (Ameer), 2 All ER [1952], 64; and the Gaekwar of Baroda
State Railways v. Hafiz Habib-Ul-Haq, 65 Ind. App. (1937–38), 182.
31 1 QB [1894], 149, 159.
32 AC [1924], 797, 809 –810. See Viscount Cave’s approval of Mighell v. Sultan of Johore. See also Philip J. of
the Supreme Court of Queensland, Australia, in USA v. Republic of China QWN [1950], 5; ILR 150 No. 43,
following the decision of the House of Lords in the Government of Kelantan Case, holding that an agreement
to submit to the jurisdiction in the instrument of hypothecation was ineffective.
the Government of Kelantan did not submit to the jurisdiction of the High Court in respect
of a later proceeding by the company to enforce the award.33
II.A.ii.c. Waiver of state immunities must be done expressly in facie curiae. In Kahan v. Federation
of Pakistan (1951),34 it was clearly stated that an agreement in a contract to submit to
English Courts in case of any dispute did not constitute a waiver of immunity by Pakistan:
‘‘Nothing short of an actual submission to the jurisdiction in facie curiae will suffice.’’35
II.A.ii.d. An Asian State was treated either as foreign entity entitled to immunities or alterna-
tively not part of the British Crown for purpose of the Crown Proceedings Act 1947. It is to
be recalled that in Kahan v. Federataion of Pakistan (1951),36 the Commonwealth Relations

Office had issued a certificate that Pakistan was ex concessis a foreign sovereign State not
answerable before English Courts. Jenkins L.J. observed:
If the Federation of Pakistan was not in that sense an independent sovereign State, the
action must be regarded as action against the Crown in its capacity as sovereign of
Pakistan, and it was claimed that in the alternative also the plaintiffs’ action would
not lie, because the Crown Proceedings Act 1947, which enabled the Crown to be
sued by writ, would not apply to the Crown in its capacity as sovereign of Pakistan.37
Again, Philip J. of the Supreme Court of Queensland, Australia, in Van Heyningen

v. Netherlands Indies Government (1948),38 declined jurisdiction on the ground that the
defendant was an integral part of the Royal Dutch Government.39
II.A.ii.e. United States and other European Courts also accorded immunities to part sovereign or
political subdivisions of Asian States. US Courts have adopted a similar view with regard to
their own dependencies40 and by virtue of their Federal Constitution with respect to the
Member States of the United States of America. Civil law systems appear to share the
same view. Thus, French Courts have similarly upheld immunity in cases concerning
semi-sovereign States and protected States or member States within the French Union,41
or the Ministry for the Colonies of a foreign sovereign State like Belgium.42
33 Ibid., 809 –810.

34 2 KB [1951], 1003.
35 Ibid., 1012 and 1016; Cf. LQR 68 (1952), 11; 50 ILR (1951), 215.
36 2 KB [1951], 1003.
37 Ibid., 1009 –1010.
38 QWN [1948], 19; 43 A-D (1948). See also US case Martin Merhman, Isbrandtzen Co. v. Netherlands East
Indies Government, 75 F. Supp. 48; 26 A-D (1947).
39 43 A-D (1948), 140.
40 See Kawananakao v. Polybank US (1907), 319, 353, where the territory of Hawaii was granted sovereign
immunity.
41 Bey de Tunisie c. Ben Ayed S.1895-II-11; DP 1894-1-42; and other Gouvernements chérifiens, 56 Clunet
(1929), 716.
42 See Hunttinger c. Upper Congo Great African Lakes Railway Co. (1935), Trib. Civil de la Seine, Gaz.Tribx.
13-14-2 (1935); 65 A-D (1933 –34).
12 CJIL (2005)
II.A.ii.f. State immunities extended to properties of Asian governments. In an action instituted

by Varasseur against Krupp and others (1878),43 described as agents of the Government of
Japan, claiming an injunction and damages for infringement of a patent for making shells
and other properties bought by the Mikado of Japan to put on board their warships
under construction in England for the Japanese Imperial Fleet, the English Court of
Appeal held that ‘‘without prejudice to any question, notwithstanding the injunction, the
Mikado shall be at liberty to take out of the jurisdiction the shells which belong to him’’.44
II.A.iii. Contribution of Asian State practice to the progressive development of the doctrine
of State immunities subsequent to its initial adoption in the general practice of States
(1900 – today)

The practice of States, including especially Asian States, in the ensuing decades since the end
of the Second World War, and even earlier for some of the older Asian nations, is worthy of
the closest attention. If the States of Asia were left out of the formation of the doctrine of
State immunities at its inception, it cannot be gainsaid that once Asian nations together
achieved new-found status of independence in the family of the UN, they have lost little
or no time to learn to fulfil their obligation in the participation of the law-making
process which is now no longer the monopoly of European or other Western nations.
Asian States are no longer precluded from playing an active role in the progressive develop-
ment of international law, whether during the initiation process of the International Law
Commission, or in the decision-making stage at any of the principal organs of the UN,
especially the International Court of Justice (ICJ), the Security Council or the Sixth
(Legal) Committee of the UN General Assembly.
As the method of the present study is more inductive than deductive, it is useful to start
from the judicial practice first, and then continue to examine the legislative process and
finally the governmental and treaty practice of the States of Asia, with the view to ascertaining
the extent to which Asian nations could be credited with material contribution to the
substance of rules of international law on the subject matter under review.
II.A.iii.a. Judicial practice. Almost half a century ago, a very learned Guru45 in international
law once reminded the present writer, who desperately confessed to his Editor-in-Chief of an
Annual Digest and Report of Public International Law Cases, that, as hard as he had searched
all over South-East Asia, there were but very few cases worthy of public notice and reporting.
Precisely for that very reason, the revered publicist consoled his youthful pupil and agreed to
publish the judicial decisions from out of Asia brought to his attention in spite of their
relative insignificance. Furthermore, the world-renowned jurist cautioned his disciple that
43 (1878) 9 Ch.D. 357.

44 See per Jessel M.R. 7 Ch.D. (1878), 351, 353. It should be noted that in 1878, Japan was still under a regime of
extra-territoriality vis-à-vis the United Kingdom. As such, the recognition of immunity from injunction and
seizure of Japanese State properties by English Courts was astonishing in the absence of any potential
reciprocity.
45 Reference is made to the much-respected Sir Hersch Lauterpacht, who has not ceased to provide his succeeding
generations with inexhaustible inspiration.
it was not for us law reporters to invent or fabricate case laws; we could only report what had
actually been decided. The origin of inductivity lies in the actual occurrences and events—
not in any fantasy or imagination.
It is with this caveat in mind that an examination will be made of some of the notable cases
decided by Asian Courts, all of which are invariably of comparatively recent dates, particu-
larly since the beginning of the Second World War.
(a) Burma (Myanmar): Thus, in U. Kyaw Din v. His Britannic Majesty’s Government of
the United Kingdom and the Union of Burma (1948),46 the Central Government of
the United Kingdom was clearly held to be immune from the jurisdiction of the
Burmese Courts, as would be the Government of the Union of Burma itself.

(b) Ceylon (Sri Lanka): In Government Soap Factory, Bangalore v. Commissioners of
Income Tax (1943),47 the Courts in Ceylon accepted the certificate of the executive
branch of the Government, recognizing the defendant as a foreign sovereign entity,
entitled to jurisdictional immunities from Ceylonese Courts.
(c) Federation of Malay States (Malaysia –Singapore): In Hai Hsuan, U.S.A. v. Young
Soon Fe and Another (1950),48 the Courts in Malaya and Singapore appeared to
have followed the United Kingdom Court of Appeal and the House of Lords decision
in The Cristina Case (1938),49 upholding immunities of private vessels employed by a
foreign State in trading, despite dicta in the House of Lords to the contrary. Other
non-Asian Courts in the British Commonwealth, such as Australia,50 South
Africa51 and Canada,52 appeared to have followed English precedents laid down
by the Court of Appeal since the Porto Alexandre (1920).53
(d) Hong Kong: In The Alexander, as early as 1906,54 the Hong Kong Courts appeared
to have taken the same line of rigid adherence to English precedents, upholding
immunities of State-owned or State-operated vessels engaged in commercial activities.
However, a departure seems to have occurred in the Hong Kong Aircraft Case
(1950),55 where Sir Leslie Gibson, C.J., of the Supreme Court of Hong Kong
46 Burma Law Reports (1948), 524; 42 Annual Digest and Reports of Public International Law Cases (1948).
47 See 43 New Law Repports (1943), 439; 10 Annual Digest and Reports of Public International Law Cases
(1941 –42). See also A. B. Lyons, BYIL XXIII (1946), 240; ibid., XXV (1948), 209; and ibid., XXIX
(1952), 227 – 264.
48 Malayan Law Reports (1950), 63; 44 International Law Reports (1950), 170 –172.
49 AC [1938], 485; 54 TLR 512; 107 LJP 1; WN [1938], 101; Lauterpacht, 54 LQR (1938), 339 –344; F. A.
Mann, 2 MLR (1938– 39), 57 –62.
50 USA v. Republic of China, 10 February 1950, Queensland Weekly Notes, 5; 43 ILR (1950), 108, 169, The
Union Star.
51 De Howorth v. SS. India, S.Ct, SALR Cape Pro., CPD [1921], 451.
52 Brown v. SS. Indochine, Quebec EX.Ct. 12 – 10 –1922, CLR 21, Exchequer 406.
53 P. [1920], 30. See also Scottish Courts, e.g. SS. Victoria v. SS. Quiltwork, Court of Session 22 – 12 –1921, SLT
(1922), 68; 80 Supp. A-D (1919 –42).
54 1 Hong Kong Law Reports (1906), 122, 129 –130 following the Parliament Belge (1880), 30.
55 Civil Air Transport Inc. v. Central Air Transport Corp. AC [1953], 70; 2 All ER [1952], 733; 35 HKLR
(1951), 215; 20 ILR (1952), 85 –115; 45 Cf.ILR (1950), 173 –188; 34 HKLR (1950), 386.
14 CJIL (2005)
stated: ‘‘A mere claim to ownership is not enough. It must be established in the ordin-
ary way . . .. I must now state an important difference between a claim to immunity
based on ownership and a claim based on possession and control. The former requires
proof of ownership in law (at least as regards assets of the type in this case) while the
latter requires merely proof of possession and control de facto.’’56
While, at the time, English Courts were still far from reaching the position advanced
by the Hong Kong Supreme Court, Sir Leslie Gibson’s observation deserves further
study in connection with international legal developments, especially in the light of
subsequent decisions by the Judicial Committee of the Privy Council, confirming the
required proof of title.57
(e) Pakistan: In Qureshi v. The U.S.S.R. (1980),58 an action was permitted to proceed before

Pakistani Courts against the Government of the Union of the Soviet Socialist Republics
in respect of commercial activities carried out by or on behalf of its Trade Delegation.
This procedure was authorized under the Pakistan Foreign State Immunities Ordinance
(1981),59 which recognized the exception of trading activities to the granting of jurisdic-
tional immunities. The Soviet Union protested not so much against the jurisdiction of
the Pakistani instances covering commercial activities conducted in the territory, but
more precisely because the State had waived immunity by permitting its trade delegation
or commercial representation to be sued eo nomine in Pakistan, thereby precluding the
necessity of having to implead the Soviet State as such.
This reflects a fundamental misunderstanding of the position of Soviet State trading
corporations which have been established with a separate legal entity precisely to be able
to sue and be sued in the country of accreditation where they operate with assets allocated
for purposes of execution, should a judgment be entered against the State trading cor-
porations. Only, there was no need to involve or directly implead the Soviet State as such
for acta jure gestionis, for which provisions have been prearranged to answer all contin-
gencies up to satisfaction or implementation at the tail end of dispute settlement.60
( f ) Japan: In 1921,61 the Supreme Court of Japan confirmed the conviction of ex-
employees of the Chinese Legation in respect of offences committed during their
employments as attendants at the Legation but unconnected with their official
duties or acta jure imperii. The Court said: ‘‘An offence by such persons is not
56 Supreme Court of Hong Kong Original Jurisdictions, ILR (1950), 187 – 188. The Judicial Committee of the
Privy Council appears to have confirmed the disapproval of the old rule since Scrutton L.J. in the Jupiter (No.1)
[1924]. See also Juan Ismael & Co. v. Government of the Republic of Indonesia [1954], 234.
57 See also Rahimtoola v. Nizam of Hyderabad 3 WLR [1957], 884, discussing the Privy Council’s position in
Juan Ismael case, 3 WLR [1954], 531, 534 –536.
58 Qureshi v. The USSR, Pakistani Law Reports (1980).
59 Pakistan’s Ordinance on Foreign State Immunities 1981.
60 See, e.g. the practice of France in Société le Gostorg et Représentation Commerciale de l’URSS c. Association
France Export (1926), S. 1930-I-49, Niboyet. This practice was confirmed by the Franco –Soviet Trade Agree-
ment of 1934, 167 LNTS (1936), 349.
61 The Empire v. Chang and Others, S.Ct (1921); 27 Criminal Cases (1921), 187; 205 Annual Digest and
Reports of Public International Law Cases (1912 –22), 288.
purged of its prima facie quality as an illegal act. While they may not be tried in the
territorial courts during the terms of their office or employment, this may naturally be
effected when they become divested of it.’’62
The criterion of the nature of the acts was decisive in excluding the possibility of their
attribution to the Legation and, through it, ultimately to the Chinese State to be entitled
to State immunities.
This case was of interest not only in regard to State immunities, since Japan rid itself of
Western extra-territorial regime while China was still struggling to have it abolished; it also
relates to the dual capacity of employees in an accredited Legation, who, for reasons of
diplomatic status, could be entitled to jurisdictional immunities, both ratione materiae

and ratione personae.
In yet another, even better-known case of Matsuyama & Sano v. The Republic of China
(1928),63 the Great Court of Judicature of Japan, the Highest Court of the Empire at
that time, recognized that foreign States were immune from the jurisdiction of the Courts
of Japan under international law, and proceeded to dismiss Japanese nationals’ claims
against China. The plaintiffs, holders of promissory notes drawn by the Chinese Chargé
d’Affaire in Tokyo, instituted proceedings against China for payment of the notes with inter-
est. The Great Court of Judicature dismissed the claim in 1928, with the following line of
reasoning. The Court said:
It is beyond doubt under international law that, in as much as no State acknowledges

the authorities of another State except as an act of voluntary submission, a foreign
State, in principle, is not amenable to our jurisdiction under some peculiar
ground, such as the fact of the proceedings being in rem exists. There may be an
exception only when such a State deliberately accepts our jurisdiction; and this
may comprise occasions provided for by a treaty or those in which it has expressed
its willingness to abide by the decision of our courts in the particular instance, or
in contemplation of certain specific cases. Concession of that nature, however,
must always and necessarily be made between the States concerned. Thus, although
an agreement might be concluded between a foreign State and an individual
Japanese subject in which the former, on its part, agreed to be subjected to the
jurisdiction of Japan, the agreement would not operate per se to bring that State
under our jurisdiction . . .. It is true that the view that upon the institution of
any litigation against a foreign State, it is still the duty of the Court . . . to issue a
writ of summons and cite the parties to appear at an appointed date, so that an
opportunity may be afforded to ascertaining the intention of the defendant (in
this Case, the Republic of China), is a plausible one. It must nevertheless be
pointed out that such issue of the note of citation ex officio (. . .) is in itself an exercise
62 Ibid., 288.
63 Judgment of December 1928, Great Court of Judicature, 7 Daihan Minshu, 1128; 4 Annual Digest of Public
International Cases, 168.
16 CJIL (2005)
of our authority and cannot be effected against a State which does not submit to our
jurisdiction.64
This pair of Japanese decisions of the highest judicial hierarchy in Japan is strikingly similar
in more than one aspect. They both related to an accredited legation in Japan and could be
viewed as diplomatic as much as State immunities. They both arose out of legal obligations
owing to Japanese nationals, incurred by an employee or official of an accredited Chinese
legation in Tokyo. This would tend to demonstrate a greater likelihood that Japanese
courts would feel free to grant leave to Japanese nationals to bring suits against another
Asian State—in this case, China—with relative ease, than they might otherwise if an
action were to be instituted against a Western State or a European power. In point of fact,

none was ever permitted or even attempted. There was something peculiar about China
being the victim of legal pursuit in Japan, whether or not on lawful or legitimate
grounds. On the other hand, Japan continued to enjoy a kind of extra-territorial regime
over China, especially Shanghai. This exemption from Chinese law and territorial jurisdic-
tion was also enjoyed by the Japanese administration, at least during the decades that pre-
ceded World War II—a situation that became intolerable from an ordinary Asian
perspective.
II.A.iii.b. National legislation or legislative practice. Apart from occasional case law or the
sporadic judicial practice of Asian States examined above, Asian practice also includes
national legislation or legislative acts, which prescribe new rules or amend existing ones so
as to converge with the mainstream of the practice of other States in general. For this
purpose, it is interesting to note that the countries that adopt national legislation on State
immunities belong almost exclusively to the common law system, whereas the countries fol-
lowing either a codified system or another principal legal system different from the common
law—such as socialist legality or systems based on religious precepts—simply adopted
whatever was considered to be rules of international law.
Legal systems in Asia comprehend a wide variety of principal legal systems of the world,
such as common-law, civil-law and legal systems founded on religious principles,
including Hindu, Buddhist, Muslim or Islam, Judaist or Jewish, and others. Of the variety
of legal systems that exist in Asia as they do elsewhere, only members of the Commonwealth
or former Asian colonial territories of the United Kingdom have found it necessary or
expedient to enact legislation restricting the application of the rules of State immunities.
Thus, following the United States in 197665 and the United Kingdom in 197866
and 1980,67 there must be mentioned not only two Asian countries—Singapore in
64 Ibid., 1135 –1136; 4 AD, 168 – 169; Cf. Japan and International Law, Past, Present and Future; International
Law in Japanese Perspective, Vol.5 (Kluwer, 1991), 126 –131.
65 28 USCA 5160, UN Legislative Series, St Leg. Ser. B 120 (1982), 88; the United States Foreign Sovereign
Immunities Act 1976, Public Law 94 –583, 90 Stat. 2891.
66 Ibid., 561, 998, Chapter 53, The United Kingdom State Immunity Act 1978.
67 The UK ratification of the Brussels Convention of 1926 in 1980. See also the State Immunities Merchant Ship-
ping (USSR) Order of 1978; ibid., 51; 24 October 1978.
197968 and Pakistan in 198169—but also Canada in 1982,70 the Union of South Africa in
198171 and Australia in 1985.72 Neither France, nor the Federal Republic of Germany, nor
the Russian Federation for that matter, has thought it useful or necessary to follow the
example of the United States or the United Kingdom.
If international law is binding, regardless of its sources, whether customary or conventional, it
follows that national courts could implement the changes without resorting to legislative act or
parliamentary intervention. As Lord Denning would have found it superfluous for the United
Kingdom to adopt national legislation simply to overrule an existing precedent, the Court of
Appeal in the Trendtext case (1977)73 could have circumvented any doctrine of stare decisis, when-
ever international practice has altered the course of its custom and usage from a more absolute

doctrine to a more restrictive one in actions in personam as well as in an actions in rem. To
pre-empt Lord Denning’s theory from materialization, the British Parliament, in effect, modified
if not altogether nullified the use of Mareva injunction against the bank account of the central
bank of a foreign sovereign State in that as well as in subsequent English cases.74
II.A.iii.c. Governmental and treaty practice. Last but not least should also be considered the
practice of the executive branch of the Government of Asian nations on State immunities,
which may be reflected in the advice given by the Legal Advisors on an ad hoc basis, in
the provisions of bilateral or multilateral treaties or agreements concluded by one or more
Asian nations within the region or at an inter-regional level, or otherwise in a trace of any
reflection of their collective views on any aspect of State immunities.
To this end, a pertinent example is cited in the form of a cohesive view or position on the
concept, taken by Asian nations collectively or otherwise regionally or inter-regionally,
demonstrating a set of principles of State immunities in international law and practice.
The activities of the Asian –African Legal Consultative Committee in the field of State
immunities are worthy of the closest attention.75
The first session of the Asian part of the Asian –African Legal Consultative Committee
which met in New Delhi, India, from 18 to 27 April 1957,76 had on its agenda an item
68 Ibid., 28; 26 October 1979, State Immunity Act 1979, revised version (1985).
69 Ibid., 30, State Immunity Ordinance 1981.
70 Ibid., 7, Canadian Bill on State Immunity 1982 and the Revised Statute of Canada (1985), Vol.8, Ch. 5, 18.
71 Ibid., 34, Foreign States Immunities Act 1981, 6 October 1981, as amended in 1985 and 1988.
72 See Australian Foreign States Immunities Act 1985, No. 295 or 1985, Acts of Parliament of the Common-
wealth of Australia in 1985, Vol.2, 2696. See also Immunity of Foreign States from the Jurisdiction of Argen-
tinean Courts, Law No. 24,488, approved 31 May 1995, partially enacted 22 June 1955.
73 Trendtext Trading Corp. v. Central Bank of Nigeria, 2 WLR [1977], 356, in which the Court of Appeal
applied the restrictive doctrine not only in rem but also in personam cases.
74 See the decision of the House of Lords in ALCOM Ltd. v. The Embassy of Colombia, [1984], 12 April 1984,
AC; 2 WLR (1984), 750 –757; ILM (1984), 719.
75 The Asian –African Legal Consultative Committee was one of the by-products of the Bandung Conference of
the Afro –Asian nations in April 1955, which led to the establishment of non-aligned movement from the First
Afro–Asian Summit in 1955.
76 After the Afro –Asian Conference in Bandung, April 1955, the first session of the Asian Committee comprised
the Governments of Burma, Ceylon, India, Indonesia, Iraq, Japan and Syria.
18 CJIL (2005)
referred to as ‘‘Restriction of Immunities of States in respect of commercial transactions

entered into by or on behalf of States and by State trading corporations . . .’’.77 The Com-
mittee considered the question of whether a foreign State should be immune from the jur-
isdiction of the Courts of another country with respect to liabilities arising out of commercial
or other transactions which do not strictly qualify as ‘‘governmental activities’’, as the term is
generally understood. The majority of the Asian Committee appears to favor the view that no
immunity should be accorded in respect of such transactions, but decided to postpone
submission of its final report pending further study of the subject.78
At the Third Session of the Committee in Colombo, Ceylon, in 1960, Indonesia appeared
to have strongly advocated a more absolute view of sovereign immunity for developing Asian

and socialist countries, which left little room for any consensus on ‘‘restriction’’, even in the
specific area of commercial transactions concluded, or trading activities conducted by States
(especially by developing Asian States). No general agreement was reached on how to restrict
State immunities and the matter was left inconclusively pending. However, in the Final
Report of the Committee in 1960, it was recommended (Indonesian Member dissenting)
that a State which enters into transactions of a commercial or private character ought not
to raise the plea of sovereign immunity if sued in the court of a foreign State in respect of
such transactions. If the plea of sovereign immunity is raised, it should not be admissible
to deprive the jurisdiction of the domestic court.
In the meantime, as the Asian –African Legal Consultative Committee continued to grow
in the size of its membership and in the international areas of its interests, some Asian
members of the Committee could not afford to wait indefinitely for a fundamental
change to occur within Asia. Although a change did materialize in Indonesia after the
10th anniversary of Bandung at Algiers in 1965, Asian nations were more focused on
other aspects of legal developments that appeared, at that time, to require their utmost
urgent and immediate attention, such as the GATT, UNCTAD, FAO, IMF, ILO,
UNIDO and other activities within the Asian Pacific region, as well as ESCAP, as the
UN Social and Economic Commission came to be renamed in 1970.79 Endeavors were
made to try out regional associations for economic cooperation.
To mention some, ASA, ASEAN, ASPAC, SEAMEO, SEAMES and the Ministerial
Conferences for the Development of South East Asia deserve mention, along with the
Colombo Plan and the Pearson Commission. Legal developments had to take a backseat,
at least for a brief respite.
By 1980, however, several common-law countries in the Asian and Australasian region had
rekindled the urge to adopt new legislation to accelerate progressive international and
77 Item No. 5 of the Agenda, Report of the First Session, 5. This item was referred to the Committee by India.
78 Ibid., 6. Statement by Anwar Sani, Indonesian Member of the Committee.
79 The original name of the UN Regional Commission was ECAFE, the Economic Commission for Asia and the
Far East, which was originally scheduled to be headquartered in Shanghai, China, but has moved temporarily to
Bangkok, Thailand, since 1950. The Bangkok temporary Headquarters of the UN Regional Commission was
made permanent with a new acronym in 1970, at its Bangkok Headquarters Session, Sala Santitham having just
suffered from an incendiary and under reconstruction, the meetings were held at the Narai Hotel in Bangkok.
national legal developments in the field of State immunities. Thus, Singapore followed the
United States and the United Kingdom by passing its own national legislation to restrict the
application of foreign State immunities in many areas, including, notably, commercial activi-
ties, and even non-commercial torts.80
Pakistan, in its ordinance of the same period, also enacted law requiring its Courts to
resume jurisdiction in respect to commercial activities and other related non-governmental
functions of foreign States within Pakistan.81 Nonetheless, Pakistan still recognized the
need to accord immunities to foreign government entities in respect of their liabilities for
non-commercial torts,82 such as liabilities for vehicle collisions or the keeping of the sidewalk
safe for pedestrians.83

By 1984, Malaysia also was contemplating introducing another version of the State
Immunities Act, but was convinced by the then Special Rapporteur of the International
Law Commission on the topic of Jurisdictional Immunities of States and their Property
that it might be wiser to await the outcome of the adoption of the International Law Com-
mission’s draft articles at first reading in order to see if a more commonly acceptable set of
draft articles could not be produced, rather than proliferating another variation of national
legislation on State immunities without increasing the chance or possibility of achieving
some uniformity of approach in State practice. Meanwhile, Malaysia was persuaded and
the International Law Commission has since finalized its second reading, which has been
subsequently endorsed by the Ad Hoc Committee of the Sixth Committee and by the
UN General Assembly, although no final solution was yet in sight for all the intricate pro-
blems connected with State immunities in the practice of States in 2000. However, last year,
in 2004, there was a distinct possibility that the General Assembly was about to adopt
the entire set of final draft articles prepared by the International Law Commission in the
form of a Convention, complete with a preamble and final clauses submitted by the
Ad Hoc Committee.84 This possibility became a living reality on 2 December 2004,
when the General Assembly unanimously adopted a Resolution inviting States to become
parties to the UN Convention on the Jurisdictional Immunities of States and their Property.
The text of the Convention, which was originally prepared by the first Special Rapporteur on
the topic since 1978, is now open for signature by States from 17 January 2005 to 17 January
80 See the Singapore State Immunities Act 1979.

81 See the Pakistan Ordinance on State Immunities of 1981.
82 Ibid., the ordinance does not contain a similar provision of the Singapore Act, the UK State Immunities Act or
the US Foreign Sovereign Immunities Act, nor the pertinent provision of the Canadian Act. Compare Austra-
lian and South African national legislation on the subject.
83 See the case involving the World Bank workman’s compensation for an accident and a case involving an injury
suffered by an aged lady on the sidewalk in 1982 in front of the Permanent Mission of Thailand to the United
Nations in New York; see Annuaire Français de Droit International, XXXIII-1987, 163 –194, 116.
84 See the Report of the ad hoc Committee on Jurisdictional Immunities of States and their Property set up by the
UN General Assembly Res 55/150 of 12 December 2000, and the 57th Session of the General Assembly, Sup-
plement No. 22 (A/57/22), 1–13; see also General Assembly Res 58/74 of 9 December 2003, which decided
to include in the provisional agenda of its 59th session the item entitled ‘‘Convention on Jurisdictional Immu-
nities of States and their Property’’.
20 CJIL (2005)
2007. Austria was among the first to sign the Convention at the UN Headquarters in
New York.85
In another related connection, it will be seen that Asian nations have been well aware of the
constructive role they have been expected to play in the continuing process of progressive
development of international law. They have continued to do so by making known their
views, their positions and their preferences in various fora and arenas of the UN Conferences
and of other multi-national, inter-regional, regional and sub-regional meetings for exchange
of thoughts. Piecemeal solutions have been adopted on an ad hoc basis, whenever the
occasion arises, in a bilateral context or in a sub-regional setting. For instance, within
the Association of South-East Asian Nations (ASEAN), an alternative to national judicial

settlement of disputes involving a State, be it investment disputes or infringements of
intellectual property right, is available by resorting to arbitration or other less formal
methods of dispute settlement under the ASEAN Agreement of 1987.86
II.B. Asian perspectives on various aspects of State immunities

The foregoing survey of State practice tends to indicate an acute awareness on the part of
Asian nations of the responsibility incumbent upon themselves in making known their
views and their distinctive positions in the evolution of international norms of State immu-
nities. Asian States are both beneficiaries and grantors of jurisdictional immunities, both for
themselves as well as for other States and their subordinate organs and subdivisions of State.
As such, a collective and well balanced Asian standpoint or perspective may be identifiable, if
not readily attainable.
An early trace of Asian consciousness of the far-reaching implications of State immunities
was evidenced in India’s inscription of an item on the Agenda of the First Session of the
Asian –African Legal Consultative Committee in 1957,87 even prior to the topic being
assigned by the International Law Commission to an Asian Special Rapporteur—the very
first Asian Special Rapporteur ever, a member from Thailand88—to undertake an in-
depth study of the topic of Jurisdictional Immunities of States and Their Property. It was
no coincidence that the Special Rapporteur for the Second Reading of the same Topic
was also another Asian89—a Japanese Ambassador once accredited to Thailand. Asian
85 See UN Doc A/59/508, 59th GA Plenary 65th Meeting (PM), Press Release GA/10309. This topic has had
two successive Asian Special Rapporteurs for its First and Second Readings.
86 ASEAN Agreement on Settlement of Investment Disputes, 1987, Handbook of International Agreements in
ASEAN, the ASEAN Secretariat, 70 A Jalan Sisigamangaraja, Jakarta, Indonesia 12110 (1998).
87 See above nn.71 and 72.
88 The present writer was the first Asian ever appointed as special Rapporteur by the International Law Commis-
sion and submitted altogether nine Reports to the Commission: one exploratory, one preliminary and seven
substantive Reports from 1978 to 1986, containing a complete set of draft articles together with commentaries.
89 Ambassador Motoo Ogiso was appointed Special Rapporteur for the Second Reading in 1987, following the
adoption of the First Reading in 1986, and proceeded to work with the submission of a preliminary report and
two substantive reports based on comments of Governments, and completed the second reading of the draft
articles in 1991.
nations could not have been accused of complacency or indifference to the task of the
progressive development of international law.
To begin with, Asian nations appear to have endorsed the principles of equality of States
and good-neighborliness even from as early as Bandung in 1955, hence the necessity to
recognize immunities of foreign States from the jurisdiction of their national Courts, in
any event, in regard to governmental non-commercial activities. Not unlike their European
and Western counterparts, State immunities tended originally to be viewed in a more abso-
lute light or version, as and when States were still engaged principally in the affairs of
government, jure imperii, and remained outside the business circles or activities, which,
for want of a better term, is known as jure gestionis.

Nonetheless, by 1950, the decision of the Austrian Supreme Court in Dralle v. Republic of
Czechoslovakia (1950)90 sounded the first alarm, announcing, ratione cessante, that there is no
longer any need to nurture the so-called doctrine of ‘‘absolute immunity’’. The retreat of
the absolute doctrine was heralded in by the Tate Letter of 195291 in the United States,
where the first national legislation was enacted in 1976 to put an end to the controversy
over the rejection of an absolute version of State immunities.92
By 1957, the Asian –African Legal Consultative Committee was also aware of the funda-
mental change of circumstances and of the changing or widening concept of the proper func-
tions of a modern State in the field of ‘‘commercial activities’’ in the widest possible sense of
the term, lato sensu. 93 By 1960, with the exception of Indonesia, most Asian Members of the
Committee appear to have opted for a restrictive version of State immunities.94
Unaccustomed as Asian nations had been to the habit of international norm-formulating
or law-making, having been consistently passive in the evolutionary process of norm-
creation, Asian nations, old and newly re-emerged, naturally took some time to overcome
their shyness and to shed whatever awkwardness that might have persisted after regaining
independence or otherwise rejoining the global family of ‘‘civilized’’ nations, based on the
Western-style concept of statehood and Christianity, but without necessarily abandoning
their indigenous cultural philosophy and wisdom. Since the advent of the UN and
General Assembly Res 1514 of 1960, calling for decolonization, the trend has been reversed
in favor of independence and against colonial expansion or Western colonization. No new
State or territory can become colonized; only existing or pre-existing colonies must
90 Supreme Court of Austria, ILR [1950], 155.

91 Letter of 5 May 1952, Jack Bernard Tate, Acting Legal Adviser to the Department of State, 26 Department of
State Bulletin, 984; also letter to Acting Attorney-General, 23 June 1952. See William W. Bishop, Jr, How
United States Policy Limiting sovereign Immunity, 47 AJIL (1953), 53 et seq. signaling an important shift
in the policy of the US State Department.
92 Public Law 94 –583, 90 Stat. 2891. UN Leg. Series, St/Leg/Ser. B/20 (1952), 88; 28 USCA 1602, Foreign
Sovereign Immunity Act 1976.
93 The expression ‘‘commercial activities’’ in this context has been used to embrace all economic, industrial, finan-
cial, production, distribution and related aspects of transnational commercial transactions.
94 By 1960, the Asian African Legal Consultative Committee included a Member from the United Arab Republic,
as well as a new Member from each Pakistan and Iran as observers.
22 CJIL (2005)
ultimately be liberated. The process of decolonization has been so accelerated that member-
ship of the World Organization has invariably grown from some 50 in 1948 to 200 by
2004.95
The process of law-making in its codification and progressive development also has to be
shared by all States equally, whether non-Asian or Asian. Since Asia has the largest population,
the Asian share of material contribution must correspond to its size in quantity and magnitude,
as well as in the height of its quality and substantive importance.96 A common minimum stan-
dard for State immunities needs to be identified, which will serve to promote better and more
orderly international commercial relations throughout the world.
II.B.i. A collective view of Asian nations on State immunities

It is extremely difficult or even unlikely to attain or assess a collective view, if any, that may be
attributable to Asian nations as a community. This is one of the first questions to arise when
an inquiry is being made regarding the plausibility of an Asian Perspective or Perspectives on
rules of international law on Jurisdictional Immunities of States and Their Property. The
answer is probably ambivalent and the results of the survey would appear to be inconclusive.
Replies to the questionnaire prepared by the International Law Commission and circu-
lated to Member States for completion were indecisive. Out of the 2897 or 2998 replies
received from all States after the first reading, only 14, or roughly one half, indicated that
the existing practice of their national Courts tend to be uncertain with readiness on the
part of the territorial jurisdictions to grant immunities to foreign States, regardless of the
merits or the types of activities from which the litigation or contentious claim originated.
The other half would, in practice, require further evidence of the governmental nature of
the activities of the States in question, whether or not also ultimately qualified by an
object or purpose test. Only 22 States submitted their comments on the second reading
of the final draft articles, originally prepared by the first Special Rapporteur.
An earlier indication for a collective view, if such an Asian position would reach sufficient
uniformity to be referred to in its collectivity, could be found in the report of the Third
Session of the Asian–African Legal Consultative Committee, Colombo, Ceylon in 1960.99
95 In the past decade or so, a phenomenal increase in UN membership may be attributable to the massive secession
from the Soviet Union of fifteen Socialist Republics, two of which—Ukrain and Bylorussian—were already
separate members of the UN. The splitting up of former Yugoslavia also entailed similar results, accelerating
the ever-increasing membership of the World Organization.
96 Of the 28 or 29 States that returned and completed the questionnaire distributed by the International Law
Commission, 14 reported that they granted full immunity. See Materials on Juridical Immunities of States
and their Property, UN Doc E/E 87 V.10. Neither Japan nor Thailand returned their respective completed
questionnaire. For Thailand, the Special Rapporteur was in charge of the Treaty and Legal Department and
considered that the draft replies to the questionnaire were inadequate to submit to the Secretariat. For the
second reading, 22 States, including Japan, submitted comments, UN Doc A/47/327 and Add. 1 –5
(1992) A/48/313, A./48/464 (Japan) and A/C.6/48/3 (1993).
97 See International Law in Japanese Perspective, Japan and International Law, Past, Present and Future, Kluwer,
Law International 1999, cited above n.56, 142; cf. YB of ILC (1988), 45, UN Doc A/CN.4 Ser. A/1988.
98 See Louis Henkin, etc., International Law, Cases and Materials, 3rd Edition, 1993, above n.4, 1140; Materials
in Jurisdictional Immunities of States and Their Property, UN Doc No E/F.81 V.10; 30 ILM (1991), 1554.
99 Cited above n.74.
Except for Indonesia, the rest of the Asian members of the Asian–African Legal Consultative
Committee appeared to have agreed on a more limited, less absolute and certainly more restric-
tive rule of State immunities. The reasons given for such preferences related to the practicality
of international trade, fairness and equality of treatment for traders in the international market
place.100 Non-discrimination in the treatment of traders—local and foreign, and entities both
private and public—appears to afford a solid foundation for a general denial or rejection of
State immunities in such a vast field as may be defined as commercial activities across
nations, which may or may not be conterminous with acta jure gestionis.
Asia as a whole is generally non-homogenous and tends to vary in outlook as well as in
other domains of human activities. In as much as international law reflects the consent of

all States, by definition, all Asian nations must be required to express their respective
assent or their acquiescence. When the practice of States in general still lacks uniformity
in several aspects, it is unlikely to find uniformity or unanimity among Asian countries in
all the aspects and manifestations of State immunities. The indication from the 1960
Session of the Asian –African Legal Consultative Committee appears to point to an
almost quasi-unanimity of view, except for Indonesia, which could by now have altered its
position drastically, since a fundamental change of circumstances took place after the 10th
anniversary of Bandung (1965).
Nevertheless, it should be noted, but with cautious optimism, that on the whole, Asian
Courts would more likely be prepared to grant immunities to foreign States for activities
which are sovereign or governmental, befitting the phrase jure imperii, as distinguished
from private commercial activities or acts of private-law administration (acta jure gestionis)
that ordinary individuals could or may conduct as a rule. Precisely where the line should
be drawn between cases of immunity and cases of non-immunity remains still to be
further developed in the practice of Asian Courts, not always uninfluenced by other branches
of the government, legislative and executive.
II.B.ii. A Japanese perspective

A brief reference to an official and highly authentic view of the position of the most
industrially advanced country in Asia could be cited as an example worthy of the closest
attention. Thus, Ambassador Senjin Tsuruoka, a highly respected Japanese member of the
International Law Commission, once said:101 ‘‘Japan which [is] one of the world’s most
active countries in international trade, clearly favor[s] absolute immunity in its jurispru-
dence, but opt[s] for the doctrine of restricted immunity in its practice . . ..’’, ‘‘The Japanese
Government ha[s] firmly adopted the doctrine of relative immunity, as evidenced by the
Trade Treaties concluded with the U.S.S.R. in 1957 and with the United States in 1953’’
100 See Report of the AALCC 1960, 6.

101 See (1979) Yearbook of the International Law Commission 214, UN Doc A/C/CN.4/1979 (Remarks of
Ambassador Tsuruoka), and ibid., (1981) 1 Yearbook of the International Law Commission, 103, UN Doc.
A/CN.4/181 (Remarks of Ambassador Tsuruoka); cf. International Law in Japanese Perspective, 134, cited
above nn.36 and 37.
24 CJIL (2005)
and ‘‘if the Commission’s draft took a different direction, Japan would have the greatest dif-
ficulty in ratifying it in the form of a convention’’.102
It should be recalled, however, that the task of the Commission is not purely ‘‘codifica-
tion’’, but is also ‘‘progressive development of international law’’.103 First, Japan should
make up its mind as to the direction in which it wishes to proceed, since judicial and
governmental practice of the same nation should not be inconsistent. However, patent
inconsistency appears to present accurately the official view of the Japanese Government,
which, for what it is worth, appears highly ambivalent, inconclusive and non-committal,
apart from being self-contradictory. It appears to be very faithful to the Japanese traditions
and spirits of honesty. There is some truth in the saying, attributable to a Japanese scholar,

that ‘‘confrontation is abhorred and compromises regaining harmony within the group are
valued in Japanese society. For that reason, Japan tends to be more conciliatory than other
Western States in international law-making’’.104
It is hard to ascertain whether such a view is typical of other Asian governments. At times,
a few Asian nations have followed some practice of ‘‘socialist legality’’ which adheres more
rigidly to the doctrine of ‘‘unqualified’’ or ‘‘absolute immunity’’. It should, however, be
recalled that even the former Soviet Union, in its government and treaty practice, had
been inclined to waive its supposedly pre-existing ‘‘absolute’’ immunity in regard to
Soviet trading corporations, even to the extent of execution of property allocated for the
purpose by the accredited Russian trade representative.
Most Asian States are more or less practical, conciliatory and even flexible in their
approach to international trade. Although slightly on the aggressive side, Japan is not tech-
nically opposed to changes or improvements in the progressive development of international
law. It is said from the horse’s mouth that ‘‘the Japanese Government tends to raise objec-
tions wherever the draft is at variance with Japanese law and practice’’.105
It is hoped that this is not the beginning of a new legislative imperialism from the Empire
of the Rising Sun,106 now that Japan, thanks to Prime Minister Chou-en-Lai of China at
Bandung in 1955, has since joined the UN and virtually lost its ‘‘enemy character’’, becom-
ing a regular member of the UN.107
102 See (1980) 1 Yearbook of the International Law Commission, UN Doc. A/CN.4/SER.A/1980 (Remarks of
Ambassador Tsuruoka); cf. International Law in Japanese Perspective, cited above n.58b, 135.
103 See Art.1 of the Statute of the International Law Commission (1947), adopted by GA Res 174(11) and
Art.13(1)(a) of the UN Charter (1945).
104 See International Law in Japanese Perspective, 150. According to a Japanese scholar, the attitude of the Japanese
Government towards the draft articles on State immunities is more constructive than its defensive posture in
international law-making on human rights.
105 Ibid., 135; (1980) 1 Yearbook of the International Law Commission, UN Doc A/CN.4/Ser. A/1980. See also
other remarks of Ambassador Tsuruoka, ibid., 135.
106 Japan was not admitted to the UN until after Bandung in 1955 and was not an original signatory to the San
Francisco Charter of 1945, hence understandably unappreciative of Art.13(1)(a) of the Charter.
107 See, e.g. Art.107 of the Charter. See also Arts 3 and 110 concerning original membership.
II.B.iii. A Chinese perspective

From among the leading nations that practice ‘‘socialist legality’’ or, at any rate, a brand of
‘‘socialist legal doctrine’’, the Celestial Empire deserves our utmost intimate attention. From
any perspective, above all Asian, China has suffered more than any other of its Asian neigh-
bors: first at the hands of ‘‘Western expansionists’’ no less than from ‘‘Marxist–Leninist’’ the-
orists. Both appeared to have combined to mistreat China, from left to right, from North to
South, and certainly from East to West. From one Asian nation to another, Japan has had
more than its fair share of alien domination, intimidation and humiliation to which China
was subjected. Even international law has been unfavorable to China in the sense that the use
of force had been permitted and tolerated above all against China, as an independent sover-

eign State. ‘‘Independence’’ and ‘‘sovereignty’’ came together and were not too difficult to
recognize. Yet, ‘‘equality’’ took a longer time to materialize as a living reality in the inter-
national life of this Celestial Empire. It was not until after the attack on Pearl Harbor on
7 December 1941 that the United Kingdom agreed to remove its extra-territorial rights
over China.108
By 1945, as an original signatory of the Charter, China has not only regained its rightful
place as an equal partner in international law and relations, but has also attained prominence
as ‘‘a permanent member of the Security Council’’, thus further removing itself from the
status of Japan which, in 1945, was regarded as a Second World War ex-enemy of several
original signatories of the Charter of the UN.
China had more than one good reason to insist on a more ‘‘absolute rule’’ of State immu-
nities for itself and its State agencies, not only because of its partial acceptance of ‘‘socialist
legality’’, but, more fundamentally, because it had long endured the enjoyment by foreign
nationals of a regime of extra-territoriality imposed on it by Western Powers as a result of
an earliest application of the ‘‘Gun boat diplomacy’’ by the West against Asia, resulting in
a series of ‘‘unequal treaties’’ concluded under duress.109 Even as late as the 1920s, China
took occasion to appeal to the Permanent Court of International Justice for revision of its
unequal treaties with Belgium, but to no avail; the Court did not have the chance to rule
on the case, as a new treaty was being negotiated between the two countries.110
History abounds with records of injustices or miscarriages of justice and often repeats
itself, time and again confirming China as a victim of Western exploitation, allegedly on
the application—or rather, misapplication—of international law, if only to satisfy private
personal greed or ambition. More recently, a law suit was instituted in a US Court concern-
ing ancient Imperial Railroad Bonds issued by the last Imperial Government of China
almost a century ago. This was revived by Jackson111 in an attempt to subject the new
People’s Republic of China, a Permanent Member of the Security Council, with rightful
108 This decision was not published until 10 October 1942 (Double Ten).
109 See the Treaty of Tientsin (1839) ending the Opium War and the Treaty of Nanjing (1842). See Sen-Yu Teng,
Cheng His and The Treaty of Nanking, 1842, Chicago (1914).
110 See Nocari, Unequal Treaties in International Law (1912).
111 See Jackson v. People’s Republic of China, Dist Ct ND Alabama, 1 September 1982, 27 February 1984, 26
October 1984, Circ. Ct of Appeals 11th Circ. 25 July 1985, 84 ILR, 133 – 154.
26 CJIL (2005)
representation in the UN, to the jurisdiction of a municipal Court, foreign and far away from
China. Obviously, the case was long past any statute of limitation and, as such, clearly time-
barred by any standard, and a lawsuit could be viewed as frivolous, if not indeed malicious.
If ever there was a dispute between China and another State, say the United States, that
dispute would have had to be settled by negotiations between the two Parties and, failing
that, by a third-party procedure, an independent arbitral tribunal or an international
instance. Besides, there would have been a need to exhaust local remedies in China for
the losses incurred by US investors before initiating even an international proceeding. The
United States, as a Party to the dispute in the final analysis, could not take the law into
its own hands and decide the case unilaterally as a judex in sua causa, making a mockery

of international law and violating every due process of law. Nor had China, by 1985, ratified
the Washington Convention of 1965, which, in any event, could not have reactivated,
let alone resuscitated, a claim as long dead and buried as the railroad bonds.
Nonetheless, US Courts have demonstrated their ingenious legal talent in the exercise of
judicial deliberation. The case law of the United States needed the United States Foreign
Sovereign Immunities Act 1976 to alter its course from The Pesaro case112 in 1926, which
upheld a more absolute immunity when compared to the current legislative enactments,
introducing a series of exceptions of trading activities or commercial transactions and
others. The legislative act of 1976 and its amendments could not operate to revive a cause
of action which was a non-starter long before The Pesaro in 1926. The Court could not
have applied a restrictive rule of State immunity retrospectively and arbitrarily against
China. It would be highly arbitrary, unjustifiably discriminatory and, in any case, inconcei-
vable for the cause of action to be seriously considered by any US Court in 1984, as the
dispute long predated the executive intervention, known as the Tate Letter in 1952,113
when the first attempt was made by the executive branch of the government to bring the
case law of the United States into conformity with the general restrictive trend in State
practice since the landmark decision of the Austrian Supreme Court in Dralle v. Republic
of Czechoslovakia (1950).114 The restrictive trend could not have retroactive effect beyond
1952, in any event.
Embarrassed and plagued by such vexatious litigation, China could not be expected to
have embraced international legal developments unfolding before its very eyes. But China
is, after all, Chinese and, as such, appears to be much more pragmatic and practical, as
well as flexible and enduring, than anyone could have imagined. Indeed, China entered
the international community in good faith, with integrity and good intention. China
would have liked to have been able to participate in world trade on fairer terms and had
sought admission to the World Trade Organization which, after trying times and tribu-
lations, was eventually successful. China was accustomed to the inevitable relativity of the
112 271 US, 562; 46 S.Ct, 611.

113 Dated 19 May 1952, Jack Bernard Tate, Department of State Bulletin, Vol.26, 984. See also above n.89.
114 41 ILR (1950), 155 –166; 77 Clunet (1950), 747; 54 OJZ (1950), 341, No. 356. See also the Kammergericht
of Berlin in the Republic of Latvia Case, ILR (1955), 231 – 234.
doctrine of State immunities. China had been able clearly to observe that even the Soviet
Union had to make exception to its State trading activities by making pre-arrangements
for a waiver of immunity.
As a faithful Member of the Asian – African Legal Consultative Committee, China would
very likely follow the overwhelming majority of the enlightened developing countries that
have learned to accept a more restrictive doctrine of State immunity. Certainly, the
People’s Court of China appear ready to adjudge any claims against a foreign State which
has voluntarily submitted to Chinese jurisdiction. Nevertheless, it would be too harsh to
expect the current regime of the popular Government of the People’s Republic of China
to accept State responsibility and liability incurred by the Chinese Empire and already

rejected by the intermediate Nationalist Republican Government. Indeed, in normal prac-
tice, a successor State is not always expected to make reparation for the ‘‘odious’’ debts
incurred by its predecessor, which in the Jackson case was twice removed.115
II.B.iv. A Thai perspective

The position of Thailand on State immunity is very difficult to assess and, indeed, very diffi-
cult even to predict. Thailand was not able to submit any replies to the Questionnaire cir-
culated by the International Law Commission on State immunities. All draft answers were
invariably highly speculative. On the whole, it is the courts of law that have to determine
the nature and extent of State immunities in a dispute submitted to them in a given case.
On questions of status and recognition, Thai courts tend to rely principally on a certificate
from the Ministry of Foreign Affairs. However, the Protocol Department would perfuncto-
rily certify the listing of names in the Ministry’s Diplomatic Blue Book without advising the
courts of the view of the executive branch of the Government. More often, the Treaty and
Legal Department, through its Director-General, better known as His Majesty’s Legal
Adviser, would have to give clearer advice to the courts on the applicable provisions of
the relevant agreement or convention and the extent of the immunities envisaged,
whether in the case of State or diplomatic immunities or, indeed, the functional immunities
of an accredited international organization.116
Not unlike other jurisdictions, such as the United States and the United Kingdom,
the judiciary, in spite of its jealously guarded autonomy and independence, prefers to
follow the lead of the executive, at any rate to avoid embarrassing the political arm of
the government in the conduct of foreign relations. But, as another faithful Member of
the Asian –African Legal Consultative Committee, it is more likely that Thailand will
recognize the need for some practical exceptions to State immunities, but the precise
extent of immunities to be accorded will ultimately depend on the final outcome of inter-
national negotiation of progressive legal developments.
115 See, e.g. David Little, State Immunity in Hong Kong, in Asian Dispute Review, August 2004, 36, commenting
on China’s position on State immunity in Jackson v. People’s Republic of China, 550 F.Supp. 869 (ND Ala.
1982); 25 ILR (1986), 1466.
116 See Sections III and IV below, in particular the case of Vichai Itthikamchorn, a chauffeur, employee of ECAFE,
and the case of an automobile accident involving a Director of an international organization.
28 CJIL (2005)
II.C. Conclusion
Asian perspectives other than those attributed to Japan, China and Thailand are probably
discernible if not readily ascertainable from the preceding examination of the State practice
of Asian nations. In as much as generalization is possible and plausible, some conclusions
may be borne out by the foregoing study.
In the first place, Asian nations are more sophisticated than any attempt to identify
their practice as ‘‘absolute immunity’’. To begin with, even the most conservative or,
quite the reverse, the most radical of all Asian countries—even of socialist legality—do
not support an absolute doctrine of immunity. No legal system in Asia tolerates or
labors under the misapprehension that State immunity is in any sense absolute.

Even Japanese courts are prepared to exercise jurisdiction against a foreign sovereign
State or its agencies which have either submitted to their jurisdiction or waived
their intrinsic immunity.
Far from being a rule of jus cogens, State immunity can be waived. States could
agree to opt out of the application of this somewhat practical and relative doctrine.
It is by no means a peremptory norm that admits of no derogation. On the contrary,
Asia has worked out many exceptions in its long years of practice. Even the strictest of
all the so-called countries of virtually absolute immunity would readily shed their own
sovereign immunity or like privileges in exchange for a fair or ever fairer trade practice.
It should be recalled that Asian nations have learned to survive even the most hideous
practices of gunboat diplomacy.
Secondly, many Asian countries of the British Commonwealth of nations have found it
useful to enact legislation recognizing a number of areas where no foreign State immunities
will be accorded. The fact that in exceptional cases, immunity is still granted does not reflect
any opinio juris on the part of the forum State of Asia. A State could give more immunity
from the jurisdiction than is required of it under international law. Asian States tend to
be very generous in their hospitality; that does not imply their ignorance or disregard of
the law.
Thirdly, if the position of the Asian African Legal Consultative Committee since the early
1960s is any indication, it clearly portends a practical policy of restrictive immunity for Asian
countries in general, although they tend to be more brotherly and hence generous in their
mutual treatment and reception, well above and beyond the level or any minimum standard
established by customary international law, as attested by subsequent endeavors at codifica-
tion and borne out by growing State practice concretizing norms of international law,
including those in statu nascendi.
Finally, Asian jurisprudence collectively is well prepared to recognize the exception
of commercial activities as an acquired practice. However, other exceptions, such as
non-commercial torts and contracts of employment, still await more massive endorsement
by Asia.
Whatever the international community, such as the UN, is prepared to accept, it is clear
that Asia would have no difficulty in implementing such a ruling by way of acknowledged
exceptions to the general norms of State immunities.
III. Diplomatic and consular immunities in international practice

III.A. Diplomatic and consular immunities before national courts of the
States of accreditation
III.A.i. The current situation
Before the courts of the receiving States or the States of accreditation, diplomatic and con-
sular immunities had become relatively settled by a general practice of States, as evidenced by
a few sets of generally accepted customary rules of international law.
III.A.i.a. Diplomatic missions. In the first place, norms of time-honored general acceptance
by States regulating diplomatic privileges and immunities can now be found compiled sys-

tematically in the Vienna Convention on Diplomatic Relations of 1961,117 which reflects the
existing rules of customary international law as confirmed by the diplomatic practice of
modern States.
The Vienna Conference on Diplomatic Intercourse and Immunities was attended by 81
States from 2 March to 14 April 1961. Newly emerged States have lost no time in their
internal deliberation before adhering or formally acceding to the Vienna Convention of
1961.118 The Vienna Convention on Diplomatic Relations 1961 has been considered to
be declaratory of the current norms and State practice of international law.
By 7 October 2003, 180 States had become parties to the Convention, with 50 States as
parties to the Protocol on Nationality and 62 to the Dispute Settlement Protocol.119
III.A.i.b. Consular missions. A second set of principles governing consular relations sub-
mitted to the Vienna Conference on Consular Intercourse and Immunities from 4 March
to 22 April 1963, together with two additional protocols, was adopted and open for signa-
ture as the Vienna Convention on Consular Relations of 1963,120 from 31 October 1963
until 31 March 1964. The Consular Convention and its two additional protocols came
into force on 19 March 1967.121 By October 2003, 165 States had become parties to the
Vienna Convention on Consular Relations, 39 States were parties to the Optional Protocol
concerning Acquisition of Nationality and 46 States to the Optional Protocol concerning the
Compulsory Settlement of Disputes.122
117 See Vienna Convention on Diplomatic Relations 1961 (UNTS, Vol.500, 95), adopted and open for signature
on 18 April 1961 until 31 March 1962. The Convention and its two Optional Protocols, one concerning
Acquisition of Nationality (UNTS, Vol.500, 223), and another concerning the Compulsory Settlement of Dis-
putes (UNTS, Vol.500, 241). The Convention and its two Optional Protocols entered into force on 24 April
1964.
118 For instance, several new States acceded to the Convention upon becoming members of the UN after the entry
into force of the 1961 Convention on 24 April 1964.
119 See The Work of the International Law Commission, 6th edition, Vol.I, UN; NY 2004, 128 –129; for the text
of the Convention, see ibid., Vol.II, instruments at 39 –56.
120 See UNTS, Vol.596, 261.
121 See UNTS, Vol.596, 469 and 487.
122 See The Work of the International Law Commission, cited above n.117, 131; for the text of the Convention, see
ibid., Vol.II, 57 –89.
30 CJIL (2005)
III.A.i.c. Special missions. A third set of norms closely related to diplomatic intercourse
and immunities, initially prepared by the International Law Commission, was adopted
by the General Assembly Resolution 2273 (XXII) of 1 December 1967, as draft
articles on which Member States were invited to submit comments and observations.
The Convention on Special Missions was finally adopted by the Sixth (Legal)
Committee of the General Assembly on 8 December 1969 in Resolution 2531
(XXIV), with a recommendation in favor of waiver of immunity ‘‘when it can do
so without impeding the performance of the functions of the special mission, and
that when immunity is not waived, the sending State should use its best endeavors
to bring about a just settlement of the claims’’.

The Convention on Special Missions and its Optional Protocol on Compulsory Settle-
ment of Disputes were open for signature and for ratification or accession from 16 December
1969 until 31 December 1970, and entered into force on 21 June 1985.123 ‘‘A Special
Mission’’ or an ‘‘ad hoc mission’’ has been defined as a ‘‘temporary mission, representing
the State, which is sent by one State to another State with the consent of the latter for the
purpose of dealing with it on specific questions in relation to its specific task’’.124 By
October 2003, 32 States had become parties to the Convention on Special Missions
1969125 and 15 to the Optional Protocol.126
This last set of draft articles on ad hoc missions, which came into force among a handful of
States, is of no less significance than the two preceding Conventions on Diplomatic (1961)
and on Consular (1963) Relations, although of much subsequent growth and later
development. Today, Heads of State very frequently chair or lead their ad hoc or special
missions to confer with their counterparts on a bilateral127 or multilateral basis,128 often
also on a regional129 or sub-regional130 level, as well as, indeed, on an inter-regional
platform.131
III.A.ii. Historical developments

The foregoing presentation of a picture of diplomatic and consular relations as they are actu-
ally taking place in practice today has rendered the task of referring to the remote past of State
practice in the area less arduous and of relatively little or no consequence. Diversity existed in
the ancient diplomatic and consular practice. From time immemorial, nations or nation
123 Ibid., Vol.I, 143 and Vol.II, 89 –109.

124 Ibid., 142 –143. For the adoption of the Convention by the General Assembly, see GA Res 2530 (XXIV) of 8
December 1969; Switzerland attended the Sixth Committee sessions as an observer without the right to vote,
but became a member of the UN on 10 September 2002.
125 UNTS, Vol.1400, 231.
126 See The Work of the International Law Commission, cited above n.117, 131.
127 See, e.g. the Summit Meeting between the United States and the Soviet Union Leaders in Iceland in 1987.
128 For instance, the Summit Meetings of Representatives of the Coalition Forces in Iraq.
129 The Summit Meeting of EU Council is an excellent example.
130 The ASEAN Summit provides an outstanding example of Sub-Regional Special Summit Meetings.
131 The APEC Summit Conference requires the recognition of diplomatic immunities for members of their
missions.
States conducted their mutual relations through visiting envoys or other forms of represen-
tation, such as envoys extraordinary or plenipotentiaries, accredited as ministers, or ambas-
sadors, or consuls general, consuls and vice-consuls, as the case may be.
The practice of permanent resident or rotating resident envoys has been more recent.
Originally, embassies were exchanged on an ad hoc, occasional and provisional, or temporary
basis, for a shorter and less continuous or uninterrupted mission. Nonetheless, the questions
of immunities and privileges accorded to diplomatic and consular agents were not insignif-
icant. At first, they were accorded as a matter of comitas gentium or courtoisie internationale
rather than as a binding legal obligation, but, gradually, as an international requirement that
would be understood and taken for granted, admitted and accepted in practice by States in
their earliest legislative enactments, as shown through the Act of Anne 1708,132 the United

States Act of 1790133 and the French decree of 1789,134 which served to confirm the state of
the legal practice of extending immunities to foreign accredited diplomats, consuls and
foreign potentates of ranks.
In the context of the modern law of nations, whose origins are traceable back to the Treaty
of Westphalia in 1648, the rules of customary international law governing diplomatic and
consular relations had been known to be more or less settled well before the start of the
current rules of contemporary European-based international law. Gentili in 1594,135
Grotius in 1646136 and Bijnkershoek in 1744137 in their respective Latin publications are
considered to be among the classics of the international law on embassies, invariably referring
to the well established rules respecting the treatment of accredited members of foreign
embassies in the practice of State preceding the Thirty Year’s War, which started in 1618.
Asian practice did exist even earlier than the European, although one is not truly very
divergent from the other. More thorough attention will be given to the Asian Perspectives
of Diplomatic and Consular immunities in ancient and current practice of international
law with an eye for its progressive development.138
III.B. Diplomatic and consular immunities before an international

judicial instance
Most frequent of the causes célèbres for diplomatic and consular immunities relate to litiga-
tion or adjudication of disputes by the national courts of the receiving States or States of
132 See the Act for Preserving the Privileges of Ambassadors and Other Public Ministers of Foreign Princes and
States, 7 Anne, C. 12, ss.1 and 3 (1708).
133 The United States Statute of 1790, ss.252 –255; 22 USCA, RS, s.4063; cf. Hackworth, Digest of International
Law, Vol.IV, 534 –535.
134 A decret du 13 Ventôse, an II, of the Assemblée constituante of 11 December 1789.
135 Alberico Gentili: De Legationibus libri Tres (1594), liv. II, Chap.XVI, concerning the contracts of ambassadors.
136 Hugo Grotius (de Groot): De Juri belli ac pacis (1646), liv. II, Chap.XVIII, s.IV, concerning inviolability of
ambassadors. The first edition is believed to have appeared in 1625 (Paris).
137 Cornelius van Bijnkershoek: De Foro Legatorum (1744), Chaps XIII, XIV, XV and XVI, concerning the immu-
nities of ambassadors from jurisdiction, and Chaps IV and V regarding the immunities of foreign sovereign and
their property, and De Foro Competente Legatorum (1723), 43 –46.
138 See below, the Section entitled ‘Asian Perspectives of Diplomatic and Consular Immunities’.
32 CJIL (2005)
accreditation, for these are the courts which have had to determine the extent of their own
competence and jurisdiction, including all questions of exemption or immunity therefrom.
However, in the ultimate analysis, diplomatic and consular immunities are questions of
international law, and, as such, should be decided, ruled or adjudicated upon by an inter-
national tribunal or an international judicial instance. On the other hand, submissions of
disputes before an international adjudicative instance are not matters of very frequent
occurrence.
For that reason alone, it is most interesting to examine international judicial decisions
on the topic under review. The following cases of violations of rules of international
law as incorporated in the Vienna Convention on Diplomatic Relations (1961) and the

Convention on Consular Relations (1963) are worthy of the closest attention.
(1) The very first decision relates to the United States Embassy Hostages Case
between the United States of America and Iran in 1979 –80.139 The case was of the
greatest interest in the speed with which the ICJ in December 1979 was able to reach
a decision to indicate provisional measures ordering Iran to release forthwith the
hostages taken from the staff of the embassy of the United States in Teheran and the
United States Consulate General in Iran, as well as to cease and desist from occupying
the diplomatic and consular premises of the United States in Iran.
These acts constituted violations of the Vienna Conventions on Diplomatic and on
Consular Relations of 1961 and 1963, respectively, as well as the relevant provisions of
the bilateral consular convention between Iran and the United States,140 engaging the
State responsibility of Iran for failure to protect the inviolability of the premises and per-
sonal inviolability of members of a diplomatic mission and consular post.
Iran did not comply with the above-cited provisional measures indicated by
the Court. The United States resorted to a number of counter-measures, including pro-
hibition of Iranian students from movements within the United States, which yielded
no concrete results, and President Carter’s decree freezing the Iranian assets within the
US territories, which led to further negotiations through the good offices of the Perma-
nent Representative of Algeria to the UN in New York. As a consequence, the Accord of
Algiers was adopted which created the Iran –US Claims Tribunal in The Hague in order
to determine outstanding disputes between the two countries.
Meanwhile, President Carter authorized a Rescue Mission to release US hostages in
Iran, which did not achieve its designed objective and was reprimanded by the President
of the ICJ as an act of self-help, unlawful in international law and undermining the
respect for the highest international judicial instance.141
139 See ICJ Reports 1979 and 1980.

140 See the indication of provisional measures in ICJ Reports 1979, 7 and on the merits. See also ICJ Reports 1980,
3 et seq.
141 The judgment of Sir Humphrey Waldock, President of the Court in ICJ Reports 1980, paras 93 and 94;
compare the decision of the same Court in the Corfu Channel Case regarding the Counter-Claim by
Albania of violation of its Territorial Waters by the act of self-help on behalf of the United Kingdom in sweeping
the mines in the channel.
(2) Equally deserving of a closest attention is a series of three successive cases of violations
of the Vienna Convention on Consular Relations (1963), notably Article 36(1)(b)
concerning the United States’ failure to inform the foreign nationals under arrest
and detention of their right to give notification to their respective consular posts of
their arrest and detention by the US authorities in the United States: The Breard
Case (Paraguay v. USA) (1998);142 the Walter LaGrand Case (Federal Republic of
Germany v. USA) (1999);143 and the Avena and other Mexican Nationals Case
(Mexico v. USA) (2003)144, involving some 54 Mexican nationals awaiting execution
in prisons in the United States. In the Breard case, as well as in the ensuing LaGrand
case, the ICJ had indicated provisional measures ordering the United States to under-

take whatever measures necessary to suspend the execution of Breard in the case insti-
tuted by Paraguay, and Walter LaGrand in the case instituted by Germany, pending
consideration of the proceedings on the merit. In each of these first two instances,
the detainee in question was executed despite the provisional measures order by
the Court.
In the Breard case, once the accused was executed, there appeared to be no point for
Paraguay in continuing the proceeding, as the accused was deceased and could not be
brought back to life. No restitutio in integrum would seem possible.145
In the Walter LaGrand case, his brother was earlier executed and Walter was
executed on the very day the Federal Republic of Germany endeavored to resort to
the US Supreme Court to order a stay of execution in compliance with the World
Court’s order of provisional measures. The US Supreme Court ruled that there was
no provision for judicial review in such a case, while the US Solicitor-General’s
Office took the position that the Order of the provisional measures indicated was
not binding.146 The Court was at pains to go into all the arguments presented by
the Parties to determine once and for all that the provisional measures indicated by
the Order of the Court were binding on the Parties to the Proceedings. Germany
did not make any claim for indemnification but, instead, demanded satisfaction in
the form of assurances to be ultimately agreed by the Parties. An apology alone
would be no assurance against future repetitions of the failure to give Consular
notification.
142 See ICJ Reports 1998, Order of April 9, 1998; see 37 ILM (1998), 819 and 92 AJIL (1998), 679 –712.
143 See ICJ Reports 1999, 9, para.6, Order of 3 March 1999; see 93 AJIL (1999), 924.
144 See ICJ Reports 2003, Order of 5 February 2003.
145 For interesting comments by members of the American Society of International Law, see 37 ILM (1998), 810
and 92 AJIL (1998), 679 –712.
146 Order of 3 March 1999 of the ICJ; see ICJ Reports 1999, 9, para.6. The Solicitor-General’s Office found that
the word ‘‘indicate’’ was not prescriptive, and that the Order of the ICJ was not binding either on the US
Supreme Court, or on the Governor of Arizona or any other State within the United States. With the greatest
respect, the ICJ Order was obviously binding on the United States itself as a member of the UN, Party to the
Statute of the ICJ and the Charter of the United Nations. Under Art.36(2) of the Consular Convention 1963,
the United States was under an obligation to ensure that its municipal laws and regulations enable full effect to
be given to the purposes for which the rights accorded under this article are intended.
34 CJIL (2005)
In the Avena (Mexico v. USA) case (2003),147 Mexico asked that, pending judgment
in the case, the Court indicated that the United States take all measures necessary to
ensure that no Mexican national be executed in violations of Articles 5 and 36 of the
Consular Convention of 24 April 1963, with respect to some 50 Mexican nationals
who had been sentenced to death in certain States of the United States.148 The Court
held public hearings on 21 January 2003 and gave its Order indicating provisional
measures on 5 February 2003,149 with respect to Mr César Fierro Reyna, Mr
Roberto Moreno Ramos and Mr Osvaldo Torres Aguilera, of Mexican nationality.
Of the 54 Mexican nationals sentenced to death, the above-named detainees are
not to be executed pending a final judgment of the Court.150 Thus far, there has

been no complaint on the part of Mexico of non-compliance of the Court’s indication
of the above provisional measures by the United States.
III.C. Asian perspectives of diplomatic and consular immunities

III.C.i. International jurisprudence
The preceding survey of the most recent case law of the ICJ in regard to the application of the
Vienna Conventions on Diplomatic Relations (1961) and on Consular Relations (1963)
amply demonstrates the still primitive character of contemporary international law in spite
of several millennia of State practice in diplomatic and consular relations.
States, young and old, Asian, African, American and European alike, without much dis-
tinction, are still capable of violating even the most sacred and most fundamental of all
norms established in diplomatic and consular intercourse. Relations between nations are
filled with episodes of misuses, abuses and misapplications of diplomatic and consular regu-
lations, privileges and immunities.
In one notorious case,151 an Asian State, Iran, not only tolerated and acquiesced in, but
also subsequently endorsed, the invasion and occupation of the US Embassy premises in
Teheran by angry Iranian mobs, breaking and entering embassy grounds and also the com-
pounds of the US Consulate in Iran. Furthermore, having condoned the acts of violence by
Iranian mobs against the inviolability of diplomatic and consular premises and personal
inviolability of diplomatic and consular staff resident in Iran, the Iranian administration
deliberately ignored the provisional measures ordered by the ICJ. The only excuse provided
147 2003 ICJ Report, Press Release 2001/1, 10 January 2003.

148 See Press Release 2003/7, 30 January 2003.
149 See Press Release 2003/9, 5 February 2003.
150 The Order indicating provisional measures was adopted unanimously, and President Gilbert Guillaume read the
Order on 5 February 2003. César Fierro Reyna, Roberto Moreno Ramos and Osvaldo Torres Aguilera were the
three prisoners whose execution was ordered to be suspended pending the Court’s consideration of the merit
regarding failure of the United States to fulfil its obligation under Arts 5 and 36 of the Vienna Convention
on Consular Relations of 24 April 1963. The Court stated that Mexico successfully identified the above-
named individuals as being victims of a violation of the Consular Convention, and that no provisional
measure could be adopted in respect of other individuals.
151 See USA v. Iran, Hostages Case, 1979 and 1980, ICJ Reports 1979, 7 et seq. and ICJ Reports 1980, 3 et seq.
was that the premises seized were not used for legitimate diplomatic and consular functions,
but merely operated as intelligence agencies, contrary to acceptable diplomatic and consular
practices.
On the other hand, the other Party to the dispute, the United States of America, a rela-
tively recent civilized nation from the Western hemisphere, while refraining from undertak-
ing like measures in reprisal directly against the Iranian Embassy and staff in Washington
DC, took the law into its own hands by carrying out a series of counter-measures which
could be viewed as illegitimate and disproportionate—notably, the rescue operations were
found by the Court to be unlawful measures of forcible self-help in violation of the very
same provisional measures ordered by the Court, and were viewed as measures tending to
undermine respect for the integrity of the highest international judicial instance.152

III.C.ii. Asian attitude towards State practice
From one vantage point, Asian nations are generally peace-loving and law-abiding, and, as
such, cannot help but being disappointed if not indeed disenchanted by the unseemly
conduct of both Parties to this unfortunate dispute. The older Asian nation, Iran, should
have known better, been more seasoned and learned its lesson by respecting the sanctity
of the time-honored principle of the inviolability of diplomatic and consular premises, as
well as the personal inviolability of diplomatic agents and consular officials. In case of com-
plaints of misuses or abuses of diplomatic and consular privileges by accredited foreign
embassies, representation could have been made to the other Party.
The United Kingdom did not violate the Libyan diplomatic mission in London when a
British policewoman was shot by the Libyan security officer in a frenzy, attempting to calm
down demonstrations outside Libyan Embassy compounds.153 Nor did the French gendar-
merie apprehend the Iraqi Embassy security guard for shooting the Iraqi terrorist and, in the
process, killing a French policeman.154
The United States, on its part, did not do what the United Kingdom or France did in
similar circumstances, but instead resorted to measures of forcible self-help in the face of
the very provisional measures it had earlier requested the Court to prescribe, which Order
was of equal validity and binding force to both Parties. Both the United States and Iran
were ordered equally to refrain from any acts that would permit the existing situation to
deteriorate.155
152 Ibid., ICJ Reports 1980, paras 93 –94; see also above n.139.
153 The United Kingdom respected the inviolability of Libyan diplomatic premises but found a legitimate solution
to the problem by severing diplomatic relations with Libya.
154 In 1978, France was tempted to arrest and prosecute the Iraqi security guard for killing the Iraqi terrorist as well
as the French police officer but decided to declare the offender a persona non grata. However, upon his repatria-
tion to Baghdad, he was greeted as a national hero.
155 ICJ Reports 1979, 7, especially the provisional measures indicated by the Court. The United States might have
felt frustrated by its failure to obtain help or relief from the Security Council which was incapacitated by a poss-
ible use of veto, while Iran simply refused to release the American hostages as ordered by the Court.
36 CJIL (2005)
Apart from Iran and Iraq over the past two decades or so, Asian nations on the whole have
been steadfastly adhering to the practice of observing diplomatic and consular status, privi-
leges and immunities, at any rate, in their mutual inter or intra-Asian relations. The obser-
vance of customary rules of diplomatic and consular practices has been continuous and
uninterrupted from the start. These long-standing and well established Asian usages and
customs were grounded upon the necessity of orderly intercourse and relations between
nations and on the need for international courtesies and comity, unaffected by the occasional
use of superior military force which has repeatedly been denounced as illegal by European
international legal standard. This principle of non-use of force is embodied in Article 2,
paragraph 4, of the UN Charter.156

III.C.iii. Conclusion
Asian nations are entitled to reach their own conclusions regarding the moral to be derived
from an examination of State conduct and practice in this area of diplomatic and consular
immunities. In the face of existing rules of international law as clearly formulated and embo-
died in codification conventions such as the two Vienna Conventions on Diplomatic (1961)
and on Consular (1963) Relations, and the General Assembly Convention on Special Mis-
sions (1969), there can be no uncertainty about the norms regulating diplomatic and con-
sular relations.
Despite the doubts that may linger regarding the sanctity of the rules of international law on
diplomatic and consular immunities, and in the absence of any lack of authority or clarity of the
rules in force, there continues to persist the occurrence of countless cases of violations, misuses
and abuses, both by the Sending States and by the Receiving States, in regard to the necessity to
recognize and accord diplomatic and consular privileges and immunities and the obligation on
the part of diplomatic agents and consular officials to respect the local law of the receiving State.
It is clear that immunities and privileges constitute, in a sense, significant exceptions to
the Rule of Law and must, as far as possible and practicable, be confined and restricted
to the criterion of functional necessities, as the list of beneficiaries of such privileges
and immunities appear to be on the rise. A fair and reasonable balance or proportion must
be struck and maintained for future successful progressive developments of international law.
It is perfectly understandable that—from an Asian perspective, and only where there are
rules of international law, even clearly and indisputably established—breakages, violations
and infringements are visible and perceptible. Thus, instead of being discouraged by the
violations and abuses of such privileges and immunities by States as recipients as well as gran-
tors of immunities, Asian States should share an objective perspective that such violations
and abuses, once caught and established, could engage the State responsibility in respect
of the violations committed by recalcitrant individuals attributable to that State. Violations
and perpetrations of such abuses should not go unnoticed and should be declared and pun-
ished accordingly, whether Asian or otherwise. There is no exception to the rule that every
156 See, e.g. the case of Military and Paramilitary Activities against Nicaragua (Nicaragua v. USA), ICJ Reports
1986.
State is responsible for every internationally wrongful act attributable to it, in the field of
diplomatic and consular immunities as well as in all others.
IV. Jurisdictional immunities in connection with international

organizations
IV.A. Types of immunities
International organizations are the creatures of States. Each has come into existence as a result
of an international agreement concluded by States. This agreement serves as a constituent
instrument which invariably contains provisions establishing its international legal personal-

ity and its legal status, capacities and functions, as well as its privileges and immunities.
Admittedly, the extent of immunities from the jurisdiction of the national courts of the
Member States, especially the State of its headquarters, is circumscribed by functional
necessities, to be negotiated and agreed upon among member nations on the one hand,
and bilaterally between the international organization concerned and its host State on the
other. Thus, the status, privileges and immunities of the UN Organization are, in principle,
prescribed in the San Francisco Charter (1945), which is its constituent instrument.157 They
are further elaborated in the Convention on the Privileges and Immunities of the United
Nations (1946)158 and in another Convention on the Privileges and Immunities of the
Specialized Agencies of the United Nations (1947).159 However, the most crucial rules on
immunities are those contained in the respective Headquarters Agreements, such as the
one between the UN and the United States (1947).160
Without further detailed specifications, immunities pertaining to an international organ-
ization may be generally classified under the following headings:
(1) Immunities of the organizations, eo nomine, from the jurisdiction of the national
authorities of the host State, where the organization has its headquarters.
(2) Immunities of the organization as such from the jurisdiction of the national
authorities of its member States, especially where there are regional headquarters
and periodic meetings.
(3) Inviolability of the headquarters and immunities in respect of other properties, buildings,
assets and archives of the organization from seizure, search and other measures of
constraint by the national authorities of the host State, as well as of other Member States.
(4) Immunities from legal processes of the various categories of members of the staff of
the organization, including ‘‘experts on mission’’, with respect to words spoken
and acts performed in the course of official functions.
157 The Charter of the United Nations, UNTS; Jenks, BYIL (1945), 267.
158 Adopted 13 February 1946, UNTS, Vol.I, 15, entered into force for the United States on 29 April 1970, 21
UNTS 1418, TIAS No.6900.
159 ST/LEG/SER. B./10 UN, NY, 1959, Col. I, 184; adopted 21 November 1947; UNTS, Vol.33, 262, entered
into force 2 December 1948.
160 11 UNTS, June 26, 1947; 61 Stat. 3416, TIAS No. 1676, 43 Supp. 8 AJIL (1949).
38 CJIL (2005)
(5) Immunities of resident permanent missions accredited to the organization, including

inviolability of their offices and residences, and personal immunities for members of
the permanent representative missions and observer missions from the jurisdiction of
the national authorities of the host State.
Thus, in the main, the principal legal burden to be borne by member States rests more exclu-
sively on the host State, which is expected to provide necessary facilities as well as the extent
of privileges and jurisdictional immunities needed for the exercise of official functions of the
international organization in residence. This may depend to a considerable extent on the
nature and scope of the functions and activities of the international organization hosted,
either on a permanent basis, or for periodic missions or conferences.161 Apart from the

UN and its Specialized Agencies, there are a host of other international organizations162
operating in all fields of human endeavors.
IV.B. Immunities pertaining to international organizations as endorsed by

advisory opinions of the International Court of Justice
Before proceeding further, it is opportune at this point to refer to a series of advisory
opinions of the highest international judicial instance, directly on some of the aspects of
the status and immunities from national jurisdiction, rationalized by the principles of auton-
omy, independence and functional necessities of the international organization. Without
attempting a survey of established case law in national legal systems upholding such immu-
nities as are deemed necessary for the performance of official functions of the international
organization, suffice it to single out three significant advisory opinions of the Court.
IV.B.i. Reparation for injuries suffered in the service of the United Nations, 1949163
In no uncertain terms, the Court confirmed the international legal personality of the UN,
and its capacity to prosecute and to pursue its claim of right for reparations for injuries
suffered by its official in the service of the UN.
IV.B.ii. Applicability of Article VI, section 22, of the Convention on the Privileges and
Immunities of the United Nations (1946)164
In 1989, the Court unanimously upheld the applicability of the provisions of section 22,
requiring Romania to grant freedom of movement to Mr Dimitru Mazilu, a Romanian
161 See, for instance, Diez de Velasco, M., Las Organizaciones Internacionales, 12th edition, Madrid: Editorial
Tecnos: Las organizaciones, y sus agentes gozan de una serie de privilegios e inmunidades destinados a garantizar
la independencia necesaria para el ejercicio de sus funciones.
162 See also Vienna Convention on the Representation of States in Their Relations with International Organizations
of Universal Character, 14 March 1975, DOC A/Conf. 67/16, not yet in force; 35 ratifications or accessions
required for entry into force.
163 ICJ Reports 1949, 174; see also Advisory Opinion concerning Certain Expenses of the United Nations, ICJ
Reports 1962, 151.
164 15 December 1989, ICJ Reports 1989, 179. See also another advisory opinion of 26 April 1988, ibid., 1988,
12, for the obligation to arbitrate, the dispute between the UN and the United States regarding PLO Permanent
Observers Mission in New York and the facilities to be accorded with regard to accessibility of observers to the
UN Headquarters.
national who was elected to serve as member of the sub-commission for a term of three years,
later extended but prevented from attending and reporting on ‘‘Prevention of Discrimination
and Protection of Children’’. The status of the Special Rapporteur was recognized by the
Court in spite of his poor health and his being placed on the retirement list, and he
should be free to attend and report as ‘‘an expert on mission’’ under the Convention.
IV.B.iii. Difference relating to immunity from legal process of a Special Rapporteur of the
Commission on Human Rights, 1999165
This case relates to the immunity from legal process of Dato Param Cumaraswamy, a Special
Rapporteur on the Independence of Judges and Lawyers of the Commission on Human
Rights, in connection with lawsuits against him before Malaysian courts claiming compen-

sation for defamation in the total amount of over 100 million US dollars. The ICJ pro-
nounced upon the availability of immunity for the Special Rapporteur from legal process
in respect of words spoken during the interview in London which the Secretary-General
of the UN, Kofi Annan, later affirmed to have been given in the performance of the official
functions of the Special Rapporteur.
In this instance, the Court ventured an advisory opinion on the limits of the jurisdiction of
the national courts of Malaysia, a fully sovereign State member of the UN, and was unan-
imously of the opinion that the Dato shall be held financially harmless for any costs
imposed upon him by the Malaysian courts, in particular taxed costs. The Court was not
unaware of the universal rule that each tribunal, national or international, must determine
the limits of its own jurisdiction. Compétence de la compétence is exclusively within the
inherent power of the Malaysian courts.
In any event, a national of a State is not generally exempt from any taxed costs imposed by
his own State. Besides, the immunity at issue was only functional and, if it was performed in
his UN official functions ratione materiae, and if it amounted to an abuse of right or any
other type of wrongful acts under national or international law, it would admittedly
engage the responsibility of the UN itself. The Court took the trouble to make this last obser-
vation per curiam, but suggested that the responsibility of the UN was a matter for nego-
tiations and settlement between Malaysia and the UN elsewhere—not for an advisory
opinion of the ICJ.166 The ICJ felt shy of reminding the UN of its duty to co-operate at
all times with the appropriate authorities of Member States to facilitate the proper admin-
istration of justice, secure the observance of police regulations and prevent the occurrence
of any abuse in connection with the privileges, immunities and facilities.167
165 29 April 1999, ICJ Reports 1999, 62. The ICJ requested the Government of Malaysia to communicate its advi-
sory opinion to the Malaysian Courts in order that Malaysia’s international obligation be given effect and
Cumaraswamy’s immunity be respected.
166 See ICJ Reports 1999, 87, last two paragraphs before the operative para.67, s.23 of the Convention on the
Privileges and Immunities of the United Nations (1946) imposes a duty on the Secretary-General to waive
this immunity in any case where immunity can be waived without prejudice to the integrity of the UN and
insistence on immunity would impede the course of justice.
167 See s.21 of the 1946 Convention on the Privileges and Immunities of the United Nations, cited above nn.157
and 165.
40 CJIL (2005)
IV.C. Immunities of international organizations in Asian practice

IV.C.i. The United Nations and specialized agencies
Immunities pertaining to the UN and Specialized Agencies involve several important legal
issues and questions for Member States of the UN, particularly in the region in which the
organization in question operates, and especially the host State where the organization has
its regional office or headquarters. Thus, for the Regional Commission for Asia and
the Pacific, it is the Asian and Pacific countries that are involved in the grant of
immunities. The Economic and Social Commission for the region (ESCAP, formerly
ECAFE) essentially requires immunities in the territory of its host country, under the
national legal system of the host State. So also do the regional offices of various Specialized

Agencies of the UN, notably FAO, UNESCO, ILO, UNEP ICAO, WHO, WMO, etc., as
well as other regional offices of the subordinate organs of the UN, such as UNDP, UNICEF,
UNHCR and UNHCHR.
In this connection, the heaviest burden appears to have fallen upon one Asian nation
above all others: Thailand. From the beginning, ECAFE, the Economic Commission for
Asia and the Far East, was to be established in China, at Shanghai. However, the situation
in the original host country was not conducive to this location. Bangkok, Thailand, was
chosen instead, at first as ‘‘temporary headquarters’’ after the liberation of mainland
China in 1949. The Regional Headquarters in Bangkok was established in 1950, virtually
exclusively with funding from the Government of Thailand until 1970. For two decades
or so, the executive secretary of ECAFE repeatedly complained that the Regional Commis-
sion was the ‘‘Unwanted Child of the United Nations’’.
It was not until the fire incident of 1969—almost at the same time as the inability of
ECAFE to hold its annual ministerial session in Kabul, Afghanistan, for failure of Afghani-
stan to allow the Israel observer delegation to attend—that the question was once again reo-
pened for the permanent headquarters to be set up for good in Bangkok, Thailand, under the
new name of ESCAP with more land to be acquired and a new building to replace the old
Sala Santitham that was totally burnt down. This time, the expenses for the new UN head-
quarters were borne principally by the UN, like other regional headquarters, such as those of
the ECA, ECLA and ECE. This does not mean, however, that Thailand as a host country did
not have to put up a sizeable share of the initial cost, as well as the exclusive responsibility for
according all the immunities necessary for the exercise of official functions and the attain-
ment of the mandate of the Organization.
To this end, Thailand already concluded an agreement with the UN in 1954168 and
adopted legislation to give effect to the regional office agreement as well as the General Con-
ventions of 1946 for the UN and the 1947 for its Specialized Agencies with their respective
regional offices in Thailand.169
Another Asian country that has played host to the UN is Japan. In connection with the
Korean conflict, Japan hosted the UN Command (Rear) for the UN Forces in Korea, at
168 Geneva, 26 May 1954. See Legislative Texts and Treaty provisions, ST/LEG/SER. b/10, 1989, 224 –236.
169 See ibid., Vols I and II, 1969 and 1961.
various military, naval and airbase facilities, such as Yokota, Asugi and Tashikawa.170 Japan
also hosted the United Nations University, which has served as a Centre for collection of
advanced research data undertaken by many academic institutions around the world.171
IV.C.ii. Other sub-regional, regional and inter-regional organizations

Being the largest continent and the vastest region of all, it is not unnatural for Asia to serve as
host for countless other international organizations. For the sub-region of South East Asia,
Indonesia (Jakarta) has provided the seat for the Association of South East Asian Nations
(ASEAN). The South Asian Association for Regional Cooperation (SAARC) also has its
head office in south Asia. Several Asian capitals have seated the headquarters of several
inter-regional organizations. To cite a few examples, India and Qatar played host to the Sec-

retariat of the Asian –African Legal Consultative Committee, while Singapore has hosted the
main Secretariat Office of the Asian Pacific Economic Cooperation (APEC), while the Asia –
Europe Meetings (ASEM) have been staged in Bangkok, Singapore, Shanghai, Hanoi and
other European capitals, in rotation.172
IV.D. Conclusion
Asian nations are known for their generous hospitality. It is not astonishing that the stan-
dards of treatment, including the privileges, immunities and facilities accorded to the ben-
eficiaries under this heading of international organizations, albeit confined to the region,
sub-region and inter-regional relations, represent but the very minimum expected of the
Asian host countries which treat other Asians and friends of Asia as sisters and brothers;
hence, more ample immunities are, in reality, accorded.
Care should be taken, however, lest undue advantage be taken of the best of intention and
the height of generosity of Asian hospitality to the extent that enjoyment of such privileges,
immunities and facilities, already burdensome for the host countries in Asia, necessarily
entails intolerable abuses, misuses, misapplications or misconstructions of the genuine pur-
poses for which immunities were accorded in the first place. For this reason, immunities
should not be invoked beyond the limits necessary for the performance of official functions,
or above the standards required to achieve the object and purpose of the international
organization.
V. Closing observations
The foregoing survey of the practice of Asian States relating to the three distinct areas of
international law of jurisdictional immunities before national courts—namely, State
170 See ibid., ST/LEG/SER. B/10, 1989, 268 –294; 25 July 1952 and for UN Forces, 19 February 1954.
171 See ibid., 266 – 267.
172 Before ASEAN had its headquarters in Jakarta, Indonesia, it rotated its Secretariat for the Ministerial Meetings
among member countries. This has become a practice for other organizations in the region and inter-regional
meetings to follow by rotation. In this way, the UN Convention of 1975 has provided useful guidance in terms
of minimum standards of treatment, Vienna, 14 March 1975, DOC.A/Conf.67/16 in addition to the
Convention on Special Missions of 1969 above nn.121 –122.
42 CJIL (2005)
Immunities, Diplomatic and Consular Immunities, and Immunities pertaining to Inter-

national Organizations—warrants the following closing observations, which may provide
an appropriate ending for the present study.
In the first place, it should be observed that the study of the three areas of jurisdictional
immunities under review has yielded an unexpected result. It is possible, as a consequence, to
detect the hidden inner basis of the three areas of immunities. In each case, the relevance of
the role of States cannot be exaggerated.
For State immunities, it is the sovereign equality of States that justifies the granting of jur-
isdictional immunities. For diplomatic and consular immunities, in addition to the principle
of non-impediment or non-obstruction of the mission, diplomatic and consular, there is

inevitably the element of reciprocity, which is a derivative of the equality of sovereign
States that has come into play with regard to the immunities enjoyed by international
organizations.
Indeed, international organizations are in the ultimate analysis but creatures of States,
hence a trace of equality and reciprocity, not with the organizations, but among Member
States. Without the participation of sovereign States, international organizations could not
ever have come to life. They cannot be born. The criterion of functional necessities is but
another manifestation of the product of the collective will of the States which has served
to breathe life into the organization. The immunities of representatives accredited to such
organizations are in no way different from diplomatic or consular immunities. Besides, reci-
procity dictates and delineates the limited measures of the immunities justified by the need to
exercise official functions and to attain the common avowed objectives. Rotation of the
venues of meeting places among Asian capitals and cities serves to emphasize the significance
of the principle of reciprocity, and the existence of sisterly or brotherly co-operation as well as
friendly relations among Asian Member States of the organizations operating within the
Asian continent, in Asian sub-regions or in inter-regional organizations which include
Asian membership or participation.
It is to be observed in the second place that in each of the three areas of jurisdictional
immunities under consideration, Asian States have not advocated ‘‘absolute immunity’’ in
any sense of the expression. Immunities accorded by and to be expected from Asian
Courts are qualified: first, by the unwillingness of the Asian State in dispute to submit to
the jurisdiction of the foreign territorial Court; secondly, by the principle of equality of
States and reciprocity of treatment; thirdly, by functional necessities; and fourthly, by the
distinction between the governmental and non-governmental nature of the act or the
purpose of the transaction in question. On the whole, it is not true to assert that Asian
States insist on an ‘‘unqualified rule’’ of immunities, even for themselves, although, in prac-
tice, some of the Asian nations would have liked to enjoy ‘‘more unqualified’’ immunities.
Nonetheless, neither China, nor Japan, nor Indonesia would currently be seeking ‘‘absolute’’
immunity for itself, or its agencies or instrumentalities.
Thirdly, true it is in any event that State practice in general, and the practice of Asian
States in particular, is far from uniform in every area and aspect of jurisdictional immunities.
Yet, there is emerging an increasingly clear picture of the minimum standards required for
the national Courts of Asian States in the application in each of the three areas of jurisdic-
tional immunities. Asian States may not and will not invoke immunities beyond what is nor-
mally recognized in general practice. This does not preclude Asian national Courts from
granting greater measures of jurisdictional immunities over and above the limits or exceeding
the minimum standards universally recognized by the overwhelming majority of States.
Fourthly, it is also to be observed that Asian nations, as well as Asian national Courts, are
striving to assimilate and at least to harmonize their positions and attitude in regard to the
three areas of jurisdictional immunities under review. An Asian State is expected to take care
that it remains consistent in its treatment of the subject matter. It is inevitable that each Asian
State is bound to be recipient, as well beneficiary, of jurisdictional immunities. Inconsisten-

cies within any Asian State will reduce credibility in the eyes of the world, and certainly more
so in the critical eyes of a fellow Asian nation.
It follows in the final analysis that, not unlike other non-Asian members of the global
community, Asian nations too must see to it that a delicate balance is struck and maintained,
in their practice, between the need to exercise official functions without impediment or
obstruction and the need to reciprocate equality of treatment, with the necessity and desir-
ability of preserving the Rule of Law within a given national society. Without respect for the
integrity of the Rule of Law, the application of jurisdictional immunities under contempor-
ary international law will cease to have its raison d’être. It is accordingly ever so vital to main-
tain this equilibrium at any cost, so as to prevent and deter possible abuses, misuses and
misapplications of jurisdictional immunities of any kind, or, in any case, in each of the
three areas under current examination.

Jurisdictional Immunities in Comtemporary International Law From Asian Perspectives

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# The Author 2005. Published by Oxford University Press. All rights reserved.

Advance Access publication 26 April 2005

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I.B. Limited role of Asia in the initial making of international norms

I.C. Non-Asian origin of contemporary international law

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I.D. Entitlements of the United States of America

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5 See the Congress of Vienna (1815).

I.E. Gradual extension of international law to Asian nations

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Treaty of Nanjing (1842);13 Japan as a consequence of Commodore Perry’s display of

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I.F. Order of treatment of the subject matter

II. Jurisdictional immunities of States from national courts of

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22 7 Cranch 116 (1812), cited above n.4.

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II.A.ii. Asian States as beneficiaries of State immunity in the formation of rules of

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Again, Philip J. of the Supreme Court of Queensland, Australia, in Van Heyningen

33 Ibid., 809 –810.

II.A.ii.f. State immunities extended to properties of Asian governments. In an action instituted

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43 (1878) 9 Ch.D. 357.

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It is beyond doubt under international law that, in as much as no State acknowledges

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referred to as ‘‘Restriction of Immunities of States in respect of commercial transactions

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80 See the Singapore State Immunities Act 1979.

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II.B. Asian perspectives on various aspects of State immunities

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90 Supreme Court of Austria, ILR [1950], 155.

II.B.i. A collective view of Asian nations on State immunities

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II.B.ii. A Japanese perspective

100 See Report of the AALCC 1960, 6.

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II.B.iii. A Chinese perspective

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112 271 US, 562; 46 S.Ct, 611.

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II.B.iv. A Thai perspective

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III. Diplomatic and consular immunities in international practice

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III.A.ii. Historical developments

123 Ibid., Vol.I, 143 and Vol.II, 89 –109.

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III.B. Diplomatic and consular immunities before an international