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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.