By Jacques Bellezit*
Sovereign immunity from jurisdiction and execution are the corollary of the sovereign equality of United Nations Member States.
Following this, the International customary law principle “par in parem non habet imperium” which means that States and their agents cannot be tried before a foreign court and see any foreign legal decision been executed against them in case of acts implying exercise of State’s authority (acta jure imperii) is of pertinent to our discussion under this topic.
This customary law has been codified by the UN Convention on Jurisdictional Immunities of States and their Properties (UNCJISP) of January 17th 2005 (though this convention has not yet entered into force). However, Paragraph 14 of the Preamble of the Constitution of the IVth Republic recognizes that the “French Republic, faithful to its traditions, complies with international public law rules”, customary law being a part of international law.At the moment, the principle of sovereign immunities is in force in France by way of case-laws and not by a positive Act of the parliament, as it may be the case in the USA with the Federal Sovereign Immunity Act.
But the specificity of the French legal system lies in the fact that there is not one single Supreme Court with multiple specialized Chambers but there are three specialized jurisdictions acting as such one Court for different plains.On the civil plain, there is the Cour de Cassation (Court of Overruling), which has the duty to judge the cases in last resort in civil and criminal mattersOn the administrative plan, the same duty is devoted to the Conseil d’Etat (Council of the State)The constitutionality check is ensured by the Conseil Constitutionnel (Constitutional Council), composed of nine members (nominated by the President of the Republic, the President of the Senate and the President of the National Assembly) for 9 years (plus former French Presidents serving has long-life members but their role is not of great significance).
This is to say that the question of sovereign immunity can be treated in France under three main angles:
- Sovereign immunities have been the subject of decisions of the Conseil Constitutionnel (I);
- The immunity issue of certain administrative acts been dealt by the Conseil d’Etat (II);
- The immunity in civil and commercial cases are dealt by the Cour de Cassation (III)
I) The question of sovereign immunities before the Conseil Constitutionnel
The main decision of the Conseil Constitutionnel which is of pertinence in public international law is the Décision 98-208 of January 22nd 1999 about the signature by France of the Rome Statute, creating the International Criminal Court (“The ICC Decision”).The main issue is that Article 27 of the Rome Statute was opposed to the special regime of criminal responsibility imposed by French Constitution on Government Members, on the French President, as well as on MPs.
About the President, Article 67 of the Constitution grants him a judicial immunity in all matters for acts committed during the office, and all judicial procedures in which the President’s role is implied are suspended and can only be resumed one month after his official tenure ends. Article 68 of the Constitution states that the President can only be tried before the Haute Cour (High Court), a specific jurisdiction composed of Parliament, for “obvious breach of duties incompatible with the exercise of office”. Members of the Government are tried for crimes or offences committed during their function before the Cour de justice de la République (Court of Justice of the Republic), a mixed jurisdiction composed of 15 judges (12 MP and 3 Magistrates of the Cour de Cassation).
MPs are also immunized constitutionally against arrests and other forms of detention for criminal or offences unless the Bureau of their assembly agrees.
As Article 27 of the Rome Statute was incompatible with those constitutional provisions, the Constitution had to be changed in order to allow the participation of France in the ICC. The loi constitutionnelle no 99-568 of July 8th 1999 created an article 53- stating that “The Republic can recognize the jurisdiction of the International Criminal Court in the conditions laid in the [Rome Statute]”.
If now France is a full member of the International Criminal Court and contributes to the Victims Funds, we can criticize the formula of the Loi constitutionnelle, which states that France “can recognize the jurisdiction of the International Criminal Court”. A more affirmative formula “The French Republic recognizes the jurisdiction […]” may have been politically stronger and more voluntarist.
II) Sovereign immunities before the Conseil d’Etat : The “Acts of Government” theory.
In France, due to historical reasons, there always has been a fear about the interference of judicial power in administrative matters and the judge was traditionally reluctant to challenge political choices done by the executive authority.
This reluctance has been overcome in 1875 with the decision “Prince Napoleon” in which the Conseil d’Etat agrees to review judicially an administrative act motivated by political reasons.
However, two categories of administrative decisions (called “Acts of Governement” (Actes de Government)) remain impossible to challenge and thus give the benefit of an immunity of jurisdiction. The first one is one which deals with the relationship between constitutional organs (that we will exclude from this study as they only affect domestic law) and those implied closely with international relations of France ( the “relationships of the government with a foreign State or an international organ or organization”)
Whether or not it is possible make an exhaustive list of those Actes de Gouvernement is a discussion mostly restricted to scholars. However, the case-law is clear here: in order to avoid the invocation of Raison d’Etat to escape judicial review, Actes de Gouvernement in the field of international relationships must “not be detachable from the exercise of the French international relations”.
From an international law point of view, most of the Actes de Gouvernement in the field of international relations can be seen as acta de jure imperii: such as testing of nuclear weapons but also establishment of security zones in international waters around such tests as well as exercise of military force, alone or in cooperation with other States, life of international conventions and obligations
However, the French Conseil d’Etat, with this criteria of an act being detachable or not from the exercise of international relations, adds a shade to the well known distinction in public international law between acta jure imperii and acta jus gestionis.
A lot of extradition cases are said to be detachable from the exercise of international relations. For instance the Conseil d’Etat recognized its jurisdictions on refusal by French authorities to reject an extradition request from a foreign State assuming that extraditions requests are detachable from international relations. We can see here a surprising fact as extraditions and asylums cases are highly sensitive cases on a political plain and involve sovereignty issues, whoever they are concern with, and thus exclude the hypothesis of a State acting as a simple economic , “private and non-sovereign” actor.
Is it comfortable enough to say that the French Conseil d’Etat has managed to create a distinction which could concur with the traditional ones, namely with acta jure imperii and acta jus gestionis? Of course not, as domestic law is considered merely to to be of factual importance in international law with France further being a special case as under its national law there is an important – and maybe unique – place for administrative actions which might give France the false image of a Communist country to some liberal spirits
However, it shows that this summa divisio may be plagued with weaknesses, as it is not always easy, either at domestic or international level, to classify it in categories.
Moreover, the will of the 20th century was to move towards accountability, gradually, bring citizens and administration closer to the necessities of a fair trial and to have right of a citizen to hold the administration accountable of its actions, led to a restriction of immunities toward administrative acts.
III) Sovereign Immunities before the Cour de Cassation
Here’s the most important part of the sovereign immunities which forms a part of the bulkload of cases arising in France.
For the Cour de Cassation, which from a long time ago held that “independence of States is an universally recognized principle of jus gentium”, the principle of sovereign immunities of foreign States (and their dismemberments) is not absolute and the judge has not the duty ex officio to look for the existence of an immunity of jurisdiction and/or execution. A State party put to a trial before French judicial courts has to invoke the immunities it wants to benefit from them, unless an international convention biding France and this State partes mention the existence of such immunities.. This will involve a future change in jurisprudence when the UCSJISP will enter into force as this Convention impose to “give effect to State immunity […] by refraining exercise jurisdiction in proceedings before its courts […]”.
In absence of waiver of immunity (either of jurisdiction or execution), the Cour de Cassation is a valid international customary law abiding and protect the immunities of States in civil liability actions and of Chiefs of States against criminal liabilities actions in cases of non-renunciation. However, the issue is more complex when there is a renunciation of immunities. In the “NML v République Argentine judicial saga”, which led to the rendition of three judgements from the Cour de Cassation the same day, the waiver of sovereign immunity of jurisdiction and execution had to be “special and express”, the waiving of immunities had to be specifically expressed for the particular object of the litigation (specific Argentine’s assets).
But in a further decision, the Cour de Cassation put away the criteria of the specificity of the waiver, holding that the renunciation has to be clearly expressed.
This actual solution is a way to prepare the entrance into force of the UNCSJISP as Article 7 of this convention states that the consent of the State must be express and , in accordance with international customary law, no State can be forced to do or recognize something it has not agreed to.
The entering into force of the UNCSJISP will undoubtedly mark an evolution on the liability and clarity in international public which is codifying this international customary law.
Without pretending to be either Nostradamus or Cassandra, we have to say that the entrance into force of this Convention would not drastically change the overall position of French supreme Courts as Actes de Gouvernement are less and less strictly appreciated, especially with their less occurrence in jurisprudence, as other acts being immune against judicial review is “strictly restricted” and sovereign immunity cases do not come up daily at the Cour de Cassation.
(*Jacques Bellezit is law student at the Law Faculty of Strasbourg (France). His areas of interest are Human Rights, political sciences, and military affair and international public law. He can be reached at email@example.com)