Par In Parem Non-Habet Imperium
Par In Parem Non-Habet Imperium is a latin term for “an equal does not have power over an equal.” Most commonly, it is a general principle in International Law where a State is being regarded as equal with another State. This principle prohibits the exercise of jurisdiction of one sovereign State over another. However, the application of this principle is not only limited to International Law.
It can also be applied to the exercise of power of courts. Courts of the same jurisdiction are equal. Like for example, in the Philippines, although there are different branches of Regional Trial Court, the decision of one branch cannot be superior to another branch.
Thus, there is the so-called non-forum shopping. An act of filing the same case before different courts seeking a favorable judgement is prohibited because it trifles with the courts and abuses their processes. It also degrades the administration of justice. In the same manner, allowing another state to exercise jurisdiction over a separate sovereign State would result in abuses and chaos.
The exclusion of a sovereign State from the jurisdiction of another State gives rise to what we call State Immunity. The latter principle allows a state to exercise its independence outside the control of another state.
Other principles also arise as a result of state immunity; it may sometimes include the acquisition or non-cognizance of jurisdiction over the person of a citizen of another state residing or sojourning in a different states.
However, State immunity is sometimes confused with other immunities like diplomatic or consular immunities. These different types of immunities should not be confused with one another.
Other immunities arise from different sources such as treaties while state immunity is based on the inherent equality of each state.
Jus Imperii
Jure Imperii is a principle in international law which gives a state the imperious immunity, subject to certain exceptions. As per the doctrine of state immunity, “the State may not be sued without its consent.”
This does not only refer to the exception of the state from the jurisdiction of another state but also applies within its local courts where the government exercises immunity from suits.
The non-suability of state is based on the practical ground that there can be no legal right against the authority which makes the law on which the right depends.
Another reason is that allowing the state to be sued will result in litigation which would divert the time and resources of the State from the more pressing matters demanding its attention, to the prejudice of the public welfare.
However, as wide as it sounds, the doctrine of state immunity is not absolute. Foreign State cannot be at all time immune from all suits filed against it before the courts of a different state or local state.
It has been ruled that a foreign state may be sued in the host state if it engaged regularly therein in a business, or trade or, even if not so engaged, yet the doctrine warrants its application.
On the basis of its contacts in the host state which may be considered purely commercial, private and proprietary acts but not with respect to its contracts entered into by it as government or sovereign acts.
Acts jure imperii are acts of the state in its governmental and sovereign capacity. Acts jure imperii is subject to application of the doctrine of state immunity.
Thus, in order to determine whether a state can be sued, it has to first determine the nature of the act of the state. If the act is an act jure imperii then the doctrine immunity applies and the state will not be sued if not then it can be sued.
In determining whether the act is jure imperii or not a question could be asked: Were the acts undertaken in the discharge of the governmental functions and sovereign acts of the state?
Lastly, acts jure imperii applies both to the immunity of a state from another state and immunity of a state from its local courts.
Jus Gestionis
Historically, independent States have enjoyed an absolute immunity from adjudication by a foreign court. Under international law, it has been a practice not to subject an independent state from once Court jurisdiction so as not to embarrass the same in the international community.
Over time, as globalization is taking place, governments are increasingly becoming involved in the commercial arena thus the doctrine of absolute immunity was viewed by many as an unfair shield operating under the protection of state ownership or control.
This globalization allows the nations to develop a new theory or approach to balance the indestructible shield of State Immunity. Under this approach, immunity extends only to acts jure imperii of the state, and not to acts jure gestionis.
Therefore, whenever a state is engaged in a contract in its proprietary capacity, state immunity may not be invoked. On the other hand, whenever the state is engaged in a contract that is a necessary incident of its prime government function, the state may invoke its immunity.
State Immunity
State Immunity, the principle that is enshrined in the Constitution provides that “State may not be sued without its consent” is a recognition of the sovereign character of the State and an affirmation of the unwritten rule effectively protecting it from the jurisdiction of courts.
This doctrine is based on the very essence of sovereignty. As held by the Court:
“A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends”.
In another case decided by the Court, it held that the doctrine of sovereign immunity may be invoked by any foreign state when it is sued in the country just as the Philippines may invoke sovereign immunity from suit filed in a foreign country, and except when it waives it, the suit will fail.
This rule is, however, subject to exception, such as when the government was engaged in a contract in its proprietary capacity or when the public official is sued in his personal or private capacity for those acts done in bad faith.
In the former, the government is deemed to divest itself of its sovereign immunity and in the latter, because illegal or unauthorized acts of officers are not acts of the state.
Passive Personality Principle
The Passive Personality Principle is directly intertwined with the jurisdiction of sovereign states. Before we delve into this topic, let us first talk a bit about jurisdiction.
In International Law, jurisdiction is that power of sovereign states to affect all subjects and objects within its territory. This means that it is through jurisdiction that a state can affect persons, circumstances, and properties within its geographic territory.
So, how is jurisdiction manifested? It may be exercised through the legislative, executive, and even judicial actions of states.
Generally, International Law covers criminal law matters and leaves all that are civil to the care and jurisdiction of sovereign states.
Additionally, the territorial principle provides that sovereign states have the authority to solve criminal cases within their respective territories.
Nevertheless, this has been modified to adjust to new circumstances and to allow officials from other states to act within the territory of other sovereign states in certain instances.
Another principle in International Law is the nationality principle which provides that a state can exercise criminal jurisdiction over its people even outside its territory.
Now that we are more acquainted with the concept of jurisdiction, let us discuss the Passive Personality Principle. This principle allows sovereign states to claim jurisdiction which would allow them to try foreign nationals for offenses committed outside their territories, wherein their own nationals are affected.
Because of its importance, this principle has been integrated into several conventions and treaties including the following:
- The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)
- The Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons (1973)
- The International Convention Against the Taking of Hostages (1979)
As a case study, this principle has been applied by an American court for the arrest of the de facto Panaman leader, Manuel Noriega, owing to his involvement in cocaine trafficking, racketeering, and money laundering, which are acts deemed to have affected American citizens. Generally, this principle has been used in prosecuting terrorists.
International Comity
The Doctrine of International Comity, in its most legal sense, is the recognition that a state shows to the legislative, executive, and judicial acts of another sovereign state.
The word comity, in its simplest sense, refers to the courtesy and the considerate behavior that one shows towards another.
So how is International Comity actually applied? This provides that a state should apply foreign law or limit domestic jurisdiction out of respect for foreign sovereignty.
The application of International Comity requires local courts to strike a balance between competing public and private interests that considers the possible conflict of public policies of one’s state and that of another sovereign state.
Courts, and even scholars, have applied the doctrine of International Comity inconsistently as a matter of choice of law. It is considered by many as a synonym for Private International Law or Conflict of Laws.
Moreover, it is even referred to as that rule under Public International Law as the moral obligation, courtesy, diplomacy, reciprocity, or expediency that a sovereign state has to afford other states.
What is clear is that authorities have disagreed as to the correct application of International Comity, that is to say that others have even argued that International Comity should not be treated as a rule of law at all.
The disagreements and inconsistent applications of the doctrine led to the view that it has become too incoherent, illusory, or even vague. While this may seem like a problem, this vagueness led to the gradual evolution of the doctrine.
This allowed the International Comity to adapt and respond to different geopolitical situations. Scholars argued that the continuous evolution of the doctrine can be explained in three respects.
First, the definition of the doctrine itself has mutated over time, that is to say that International Comity used to be a discretionary doctrine but as of today, courts are already obligated to apply foreign law in specific instances.
Second, the subject of the doctrine also changed, that is to say that as of today, courts already justify limiting the application of their respective local laws mainly due to their obligation to defer to foreign sovereigns.
And third, the function of comity has already changed, that is to say that International Comity is no longer merely a doctrine for deciding on the application of foreign laws, but it has now become a justification for the deference to local courts in a wide range of issues regarding jurisdiction.
Conclusion
International law has numerous and important principles/doctrines which can be used for the application and interpretation of principles of International Law. It is important to know the basics as these principles are grounded principles.
To name the following are, Par In Parem Non-Habet Imperium, Jus Imperii, Jus Gestionis, State Immunity, Passive Personality Principle, and International Comity.
Par In Parem Non-Habet Imperium is a general principle in International Law where a State is being regarded as equal with another State.
This principle prohibits the exercise of jurisdiction of one sovereign State over another sovereign State. This application of this principle is not only limited to International Law but can also be applied to the exercise of power of courts.
Jure Imperii on the other hand is a principle which serves as an exception to the doctrine of state immunity. Foreign State cannot be at all times immune from all suits filed against it before the courts of a different state or local state.
Acts jure imperii are acts of the state in its governmental and sovereign capacity. Acts jure imperii is subject to application of the doctrine of state immunity.
Thus, in order to determine whether a state can be sued, it has to first determine the nature of the act of the state. If the act is an act jure imperii then the doctrine immunity applies, and the state will not be sued if not then it can be sued.
Acts jure imperii applies both to the immunity of a state from another state and immunity of a state from its local courts.
Acts Jure gestionis, unlike jure imperri, are acts relating to commercial acts in respect of which the state is not immune but is subject to the jurisdiction of the territorial sovereign. Jus gestionis are non-soverign activities. These acts are regarded as waiver of immunity.
State immunity is the exclusion of a sovereign State from the jurisdiction of another State. This principle allows a state to exercise its independence outside the control of another state.
Jurisprudence provides that the doctrine of sovereign immunity may be invoked by any foreign state when it is sued in the country just as the Philippines may invoke sovereign immunity from suit filed in a foreign country, and except when it waives it, the suit will fail.
The Passive Personality Principle allows sovereign states to claim jurisdiction which would allow them to try foreign nationals for offenses committed outside their territories, wherein their own nationals are affected.
Owing to its importance, this principle has been integrated into several conventions and treaties including the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons (1973), and the International Convention Against the Taking of Hostages (1979). Generally, this principle has been used in prosecuting terrorists.
The Doctrine of International Comity is the recognition that a state shows to the legislative, executive, and judicial acts of another sovereign state. This principle provides that a state should apply foreign law or limit domestic jurisdiction out of respect for foreign sovereignty.
The application of International Comity requires local courts to strike a balance between competing public and private interests that considers the possible conflict of public policies of one’s state and that of another sovereign state.
For the Scholars, the continuous evolution of the doctrine can be explained in three respects. First, the definition of the doctrine itself has mutated over time, Second, the subject of the doctrine also changed, and third, the function of comity has already changed.
