A State can only act through servants and agents their official acts are the

A state can only act through servants and agents

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“A State can only act through servants and agents; their official acts are the acts of the State; and the State’s immunity in respect of them is fundamental to the principle of State immunity” – Lord Bingham in Jones v Saudi Arabia [HL, 2006] Eg Holland v Lampen-Wolfe (HL, 2000) o Immunity covers acts of a state official performed in an official capacity o US army instructor (Lampen-Wolfe) was acting in an official capacity; writing allegedly defamatory memo was in relation to the US armed forces Agencies and instrumentalities of the state As to whether an agency or instrumentality is considered part of the executive government of a foreign state: Eg UK: Trendtex case: o “The doctrine [of sovereign immunity] grants immunity to a foreign government or its department of state or any body which can be regarded as an ‘alter ego or organ’ of the government” – Lord Denning On the particular facts, Central Bank of Nigeria was not a department of the government of Nigeria UN Conv art 2(1)(b)(iii) immunity for “agencies or instrumentalities of the State or other entities, to the extent that they are entitled to perform and are actually performing acts in the exercise of sovereign authority of the State” European Convention legal entity distinct from the state has immunity in respect of acts performed by the entity in the exercise of sovereign authority (acta jure imperii) Treat separate entities virtually the same way as the state itself UK SIA 1978 “separate entity” [any entity which is distin ct from the executive organs of the government] has immunity only in respect ofacts performed by the entity in the exercise of sovereign authority (s14) Australian Foreign States Immunities Act 1985 “separate entity” [an agency or instrumentality that is not a department or organ of the foreign State] is entitled to similar immunity as foreign state Eg PT Garuda Indonesia Ltd v ACCC [2012] HCA 33: o Garuda Airlines (Indonesian state-owned airline) was a separate entity, but not entitled to immunity in a proceeding concerning a “commercial transaction” o Proceedings brought by ACCC alleging anti-competitive conduct concerned
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73 a “commercial transaction” – no immunity Political subdivisions Position of a province, constituent unit of a federation, self-governing territory or other political subdivision (eg an Australian State) unclear, varies between states: o Mellenger v New Brunswick Dev Corp (1971) (ie pre-SIA 1978) UK CA said under Canadian Constitution, provinces are sovereign states and therefore entitled to sovereign immunity (Lord Denning) o UK SIA 1978 constituent units not immune unless specific Order in Council says so or unit is separate entity exercising sovereign authority in circumstances where the state would be immune (s.14) o Alamieyeseigha v CPS (2005) (criminal proceedings for corruption etc) UK HC did not accept that Bayelsa (constituent territory of the Federal Republic of Nigeria) was entitled to immunity no power to conduct foreign relations on its own behalf; not a state Australia: o
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