외교면제와 국가면제의 관계

The Relationship between Diplomatic and State Immunity from the Perspective of Immunity from Adjudicative Jurisdiction

Diplomatic immunity and State immunity under international law are considered quite similar but not identical. In many cases both immunities have appeared concurrently in the same proceedings of the national courts, but the courts have mostly emphasized the differences rather than the similarities between them. Then why is it that the two immunities are brought up so often together in the same proceedings? What is the relationship between them? This article tried to answer these questions limiting the focus on immunities from adjudicative jurisdiction. Historically, diplomatic immunity was established earlier than State immunity, and both were intended to protect the independence and equality of States. Over time, however, the two immunities have developed to have different rules and exceptions based on different histories and justifications. Due to the recent emergence and the wide acceptance of the restrictive doctrine of State immunity in national legislations and judgments, there has been an increasing tendency to divide acts of State into sovereign acts (acta jure imperii) and acts of commercial or private law nature (acta jure gestionis), and then apply State immunity only to the former. In practice, diplomatic and State immunity are increasingly intertwined, and it is often advised and now common practice to sue against both the diplomat directly involved and his sending State. It is submitted that this is because of the special position of a diplomat who enjoys immunity ratione personae and materiae as a representative of State. Based on the acts performed by a diplomat in the exercise of his official functions, both the diplomat and his sending State could be defendants, and thus whether diplomatic or State immunity or both could be invoked in the same proceedings of a national court can be an issue. The increasing tendency of diplomatic and State immunity being intertwined can become more prevalent under the wide spread of the restrictive doctrine of State immunity. As each domestic law on State immunity varies in the scope of and exceptions to immunity among States adopting the restrictive doctrine, whether a State would be entitled to State immunity could be different under the domestic law or the customary international law in case there is no national legislation on State immunity. This situation makes a plaintiff more confused when choosing a defendant and thus more motivated to strategically sue the diplomat and the sending State together. Real action relating to mission premises is a good example.