CYIL Vol. 7, 2016

PAVEL CABAN CYIL 7 ȍ2016Ȏ in pursuance of a certain state policy and by using the apparatus of the state. Thus, immunity ratione materiae is a mechanism for diverting responsibility (liability) from the individual official to the state. 7 Despite this very close connection of immunity ratione materiae to a state, it should be noted that immunity ratione materiae of state officials and immunity of the state itself are different legal concepts with their own, different function and objective, adressees and scope (including different exceptions to immunity). It means that, i.a. , immunity ratione materiae of state officials is not coextensive, but broader than the immunity of the state – the official is immune in respect of all acts performed in the exercise of official functions, whether these official acts, performed on behalf of the state, are sovereign ( acta iure imperii ) or non-sovereign ( acta iure gestionis ), while the home state of the official is, according to the restrictive theory of state immunity, protected by state immunity in general only in respect of its sovereign acts ( acta iure imperii ). 8 Immunity ratione materiae has the same characteristics whether it protects low- ranking official or a head of state; its scope is determined only by the scope of the exercise of official functions of the state official in question, without regard to the position of the official within the state hierarchy. 9 In addition, on the basis of its characteristics, this type of immunity is effective erga omnes , which means that it protects state officials in relation to jurisdictions of all other foreign states. (It can be added that customary 7 D. AKANDE, S. SHAH, op. cit. sub 4, p. 825; H. FOX, The Law of State Immunity , 2nd edition, Oxford Unversity Press, 2008, pp. 94-97; A. CASSESE, op. cit . sub 4, pp. 863-4. 8 D. AKANDE, S. SHAH, op. cit. sub 4, p. 827; Second Report of the Special Rapporteur, Mr. Roman Anatolevich Kolodkin, 63rd session, 2011, doc. A/CN.4/631, p. 16; ILC, Memorandum by the Secretariat, Sixtieth session, 2008, doc. A/CN.4/596, pp. 106-107. As stated by the ILC already within the context of the immunities of states from foreign civil jurisdiction, the civil actions directed against foreign officials in respect of their acts performed in the exercise of official functions are to be regarded as the actions directed against the state, on whose behalf the officials acted; Report of the ILC, forty- third sesssion, 1991, UN doc. A/46/10, pp. 24-25. 9 See i.a. D. AKANDE, S. SHAH, op. cit. sub 4, p. 825; J. FOAKES, The Position of Heads of State and Senior Officials in International Law , Oxford International Law Library, 2014, pp. 136-137. As pointed out by J. Foakes, despite this clear theoretical concept, the treatment received by former high ranking officials may be different based upon perceptions of their continuing importance and the potential impact on relations with their home state if any action is taken against them. According to some other opinions, immunity ratione materiae protecting the heads of state and possibly other high-ranking officials (the troika) could or should be somehow distinguished from immunity ratione materiae enjoyed by “ordinary” state officials (see for example H. FOX, The Pinochet Case No. 3, The International and Comparative Law Quarterly , Vol. 48, 1999, No. 3, pp. 694-5). However, from the theoretical point of view, such an approach, according to which there might exist a special category of immunity ratione materiae accorded to former heads of state, heads of government and ministers of foreign affairs, is very problematic and theoretically not justified. The head of state and other high- ranking officials may, in fact, enjoy wider immunity ratione materiae , but this would be based simply on the fact that the range of their activities performed in the exercise of their official functions is wider than in the case of lower ranking state officials.

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