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Oppenheim's International Law - Volume 1 Peace, 9th Edition edited by Jennings, Robert; Watts KCMG QC, Arthur (19th June 2008)

Part 3 Organs of the states for their international relations, Ch.9 Heads of States and Foreign Offices, Consideration Due to Monarchs and Presidents

Sir Robert Jennings qc, Sir Arthur Watts kcmg qc

From: Oppenheim's International Law: Volume 1 Peace (9th Edition)

Edited By: Robert Jennings, Arthur Watts KCMG QC

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 15 December 2018

Subject(s):
Heads of state and other senior officials — Special missions — Diplomatic immunity

Consideration Due to Monarchs and Presidents

See bibliography preceding §§ 445 and 448.

§ 450  Monarchs and presidents treated similarly

Apart, possibly, from certain matters of ceremony and title, there is now1 no basis for distinguishing between monarchs and presidents as regards their entitlement to substantive treatment reflecting their position as heads of their respective states. It is now usual in treaties touching on their position generally to treat both together as Heads of State, without distinction as to their constitutional nature.2

§ 451  Consideration due to Heads of States abroad

Leaving aside the occasions when a Head of State is abroad in circumstances covered by the Convention on Special Missions,1 a Head of State who goes abroad in his capacity as such (p. 1037) is owed a certain consideration from the state on whose territory he is staying with the knowledge and the consent of its government. This consideration includes the following:2

  1. (1)  His home state has the right to demand that certain ceremonial honours shall be rendered to him. Foreign states must give him his usual and recognised predicates3 in all official communications.

  2. (2)  His home state has a right to insist that he be afforded special protection as regards personal safety and the maintenance of personal dignity. Offences against him must be treated as specially serious.4 The Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 1973, includes Heads of State among ‘internationally protected persons’.5

  3. (3)  The house in which he is residing — whether belonging to him or not — must be granted the same inviolability as the official residence of an ambassador;6 no policeman or other official must be allowed to enter it without his consent. Similarly inviolable is his personal baggage, means of transport and other property he has with him.

  4. (4)  He is exempt from national and local taxation, and from fiscal (p. 1038) regulations,7 and likewise from criminal and civil jurisdiction,8 except when he himself is the plaintiff or otherwise submits to the jurisdiction.9 The same applies where the Head of State, although not visiting another state, is sued in its courts. A distinction is, however, probably now to be made between the personal immunity from the local jurisdiction enjoyed by a Head of State, and that enjoyed in respect of his acts engaged in an impersonal capacity as a state organ or on behalf of the state: the latter is probably limited to the same extent as is his state’s immunity from the local jurisdiction, particularly in respect of acts iure gestionis.10

  5. (p. 1039) (5)  He must be allowed unrestrained intercourse with his government at home. He must also be allowed to perform various administrative acts associated with his continued conduct of affairs of state in his own country,11 even though this amounts to the exercise of sovereign powers in a foreign state. However, his general exemption from the authority and jurisdiction of the state he is visiting does not entitle him (although the older view was different)12 in derogation of that state’s territorial sovereignty, actively to exercise with effect therein rights of authority and jurisdiction which he possesses in his own state, such as the punishment of offenders.13

§ 452  The retinue of Heads of States abroad

As to the position of those who, as part of a Head of State’s retinue, accompany him during his stay abroad, many writers maintain that the home state can claim the same exemptions and inviolability for them as for the Head of State himself;1 but others deny this.2 The former opinion is probably correct, since it is difficult to see why a Head of State abroad should in this matter be in an inferior position to a diplomatic envoy.3

§ 453  The families of Heads of States abroad

Where a Head of State on a visit to another state is accompanied by members of his family, they too will in large measure enjoy treatment similar to that accorded the Head of State himself. Thus their home state can require certain ceremonial honours to be rendered and request special protection for their person and dignity. Except in so far as they may be regarded as part of the Head of State’s retinue, their exemption from the authority and jurisdiction of the state which they are visiting, and inviolability of residence (if separate from that of the Head of State) are more questionable, (p. 1040) except in the case of the Head of State’s spouse;1 but again the comparison with the position of the family of a diplomatic agent2 suggests their entitlement thereto where they form part of the Head of State’s household. The position would seem to be similar when a member of the Head of State’s family is sued in another state, even if not on a visit there.3 It is, in any case, probably necessary to take special account of the position of those members of a Head of State’s family who have a separate constitutional role of their own (for example, as heir apparent to the throne),4 or who are in their own right engaged on activities on behalf of their state,5 whose entitlement to privileges and immunities in their own right is probably to be acknowledged. Members of a Head of State’s family who accompany him are within the scope of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 1973.6

(p. 1041) Private visits abroad of members of the family of a Head of State unaccompanied by the Head of State himself would seem to attract only such special treatment as the state being visited may offer or agree to give.7

§ 454  Position abroad of a Head of State in a private capacity

Even if a Head of State is in a foreign state with the official knowledge of the government thereof, if he is there on a private visit his position may as a matter of international law be uncertain. He is not then acting as representative of a sovereign state and may thus be thought not entitled to any exemptions from the authority and jurisdiction of the local state.1 On the other hand2 it may be urged that he is at all times in some degree representing his state; and that affairs of state may require prompt and free access to him even when he is abroad in a private capacity, so that he is thus entitled — at least to the extent required to avoid interference with his conduct of such potential affairs of state — to the same exemption and inviolability as when he appears in an official capacity. Doubtless ceremonial courtesies and special measures of protection3 would, unless disclaimed, be afforded by the state being visited. But the entitlement of a Head of State, and even more that of his family and retinue, to legal exemptions from the sovereign authority of the foreign state remains uncertain:4 his privately owned immovable (p. 1042) property5 in that state will in any case be subject to its jurisdiction. The practice of states varies.6 In this context there may be grounds for distinguishing the position of a president from that of a monarch, in that a president, who lacks any personal quality of sovereignty and is even a subject of his own state, is readily acknowledged by writers to be subject to the jurisdiction of a foreign state which he is visiting in a private capacity.7

§ 455  Head of State travelling incognito

Where a Head of State is staying in a foreign country incognito but with the official knowledge of the government of the latter he nevertheless enjoys the same consideration as if travelling not incognito, although many ceremonial observances which are otherwise due will not be rendered to him. But if a Head of State is travelling in a foreign country incognito without the government of the latter having any knowledge thereof, he cannot then, of course, be treated otherwise than as any other foreign individual; but he can at any time make known his real character, whereupon he is entitled to the consideration otherwise due to him.1

(p. 1043) § 456  Deposed and abdicated Heads of States

All privileges mentioned must be granted to a Head of State only so long as he holds that position. Therefore, after he has been deposed or has abdicated,1 he may be sued,2 at least in respect of obligations of a private character entered into while Head of State.3 For his (p. 1044) official acts as Head of State he will, like any other agent of a state, enjoy continuing immunity.4

§ 457  Regents

In monarchies, where there is an infant monarch or an adult monarch who, through illness or absence abroad1 or otherwise,2 is incapable of exercising his powers,3 it is usual to appoint a regent to exercise the monarch’s powers on his behalf. All privileges due to a monarch are also due to such a regent, at home or abroad. It matters not whether the regent is a member of the monarch’s family or not. During the regency, however, the monarch remains the sovereign, and Head of State. Similar considerations apply to a vice-president or other person exercising the powers of a president during his temporary incapacity or inability to act.

§ 458  Heads of States in the service of foreign states

When a Head of State accepts any office in a foreign state — when, for instance, he serves in a foreign army, as did formerly many monarchs of the small German states — he submits to the jurisdiction of such state as far as the duties of the office are concerned, and his home state cannot claim for him the consideration that would otherwise be due to him.1

Footnotes:

Formerly, a president’s lack of sovereignty was urged as a basis for denying him the same privileges as are granted to a monarch: Rivier, i, p 423; Stoerk in Holtezendorff, iii, p 658. On the other hand, the fact that both presidents and monarchs are Heads of State suggests that there should be no difference in their position when abroad: Fauchille, i, § 639; Nys, ii, p 338; Mérignhac, ii, p 298.

Eg Vienna Convention on the Law of Treaties 1969, Art 7.2 (§ 597, n 5); Convention on Special Missions 1969, Art 21 (§ 533); Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents, 1973, Art 1(1)(a) (§ 492, n 8).

See § 533. As to a monarch of a not fully independent state, see § 447, n 1.

See the statements of the position generally of Heads of State in international law by the Supreme Court of Pakistan in Qureshi v USSR (1981), ILR, 64, pp 585, 617, and by the Supreme Court of India in H H Harinder Singh Barar v Commissioner of Income Tax, Punjab (1971), ibid, pp 523, 528. See also the statement of the Canadian Department of External Affairs, Can YBIL (1981), pp 324–5.

As to these predicates, see § 115.

See McNair, Opinions, i, pp 10–14. As to libels and slanders, see § 115, n 2. As to the USA see the Act for the Protection of Foreign Officials and Official Guests of the United States 1972 (AJ, 67 (1973), p 622). As to France see AFDI, 26 (1980), pp 960–1.

Visits by foreign Heads of State may be the occasion for demonstrations against the policies of their states. A distinction must probably be drawn between reasoned criticism and offensive insult to the visiting Head of State: see in this sense the response of the Netherlands to various forms of dissent directed against US President Johnson in 1968 (RG, 72 (1968), pp 1080–81). For a prosecution under a provision of the District of Columbia Code analogous to the US Act of 1972 cited above, for shouting abuse at the Shah of Iran during a visit to Washington, see Zaimi v United States (1973), ILR, 61, p 601: the charge was dismissed on the ground that the Code, unlike the Act, did not apply to harassment by speech. See also RG, 71 (1967), p 391 for a prosecution in Australia arising out of a demonstration against President Johnson involving the throwing of paint at his car; RG, 72 (1968), pp 152–3, for action taken as a result of demonstrations against the Shah of Iran in the Federal Republic of Germany; and JAM v Public Prosecutor (1969), ILR, 73, p 387.

GA Res 3166 (XXVIII); ILM, 13 (1974), p 41.

See § 494. Immovable property owned by a monarch in a foreign country is, however, apart from its inviolability when he is in residence, subject to the jurisdiction of that country: see § 110, n 3.

See Hackworth, ii, p 404; Maharajah Bikram Kishore of Tripura v Province of Assam, ILR, 22 (1955), p 64. In the UK the effect of s 20(1) of the State Immunity Act 1978 is to grant to Heads of State immunity from value added tax, and customs and excise duties; but other questions of exemption from, or immunity respecting proceedings relating to, taxation are left open by s 20(4).

See also H H Harinder Singh Barar v Commissioner of Income Tax, Punjab (1971), ILR, 64, p 523, in which the Supreme Court of India, while denying that the Ruler of Faridkot (a former Indian Princely State) was entitled to whatever immunity from taxation on private income might be enjoyed under international law by a Head of State since rulers of Indian states did not have that degree of sovereignty, considered with some care the entitlement of a Head of State to immunity from taxation. See also Commissioner for Income Tax, Andhra Pradesh v H E H Mir Osman Ali Bahadur, ibid, p 482.

De Haber v Queen of Portugal (1851), 20 LJ (NS) QB 488; Empereur d’Autriche v Lemaitre, 5 RI (1873), p 245; Masser v Emperor of Russia (1870), Calvo, iii, § 1467; Solon v Mehemet Ali (1847), Phillimore, ii, p 145; Prince of X Road Accident Case (1964), ILR, 65, p 13; Re Honecker (1984), ILR, 80, p 365. See also the US Department of State’s suggestion of immunity for King Faisal of Saudi Arabia, in Kendall v Kingdom of Saudi Arabia, AJ, 60 (1966), p 100; and for President Marcos of the Philippines, AJ, 77 (1983), p 305. See also Ryan, Can YBIL, 16 (1978), pp 157, 188–91; and see generally § 109ff as to sovereign immunity from suit. As regards criminal acts committed by a Head of State see cases cited at § 112, n 3.

The ILC’s 1954 Code of Offences Against the Peace and Security of Mankind did not allow for immunity of Head of States accused of such crimes: Art 3 (YBILC, 1954, vol II, p 152). In reconsidering the Code the ILC is maintaining that provision: see ILC Rep (40th Session, 1988), para 280, draft Art 11.

Hullett v The King of Spain (1828) 2 Bli NS 31; King of Spain v Hullett and Widder (1833) 7 Bli NS 359; King of Greece v Wright (1837) 6 Dowl 12; Rothschild v Queen of Spain (1839) 3 Y & C 594. See also § 109, n 35ff, and the cases there quoted; Phillimore, ii § 113a; Loening, Die Gerichtsbarkeit über Fremde Staaten und Souveräne (1903); and the Projet de règlement international sur la compétence des tribunaux dans les procès contre les États souverains ou chefs d’État étrangers, adopted by the Institute of International Law in 1891 (Annuaire, 11 (1892), p 436). But in municipal law the immunity may be regarded as imposing on the competence of the Court restrictions which it is not for the Head of State to waive: Gaekwar of Baroda State Railways v Hafiz Habib-ul-Haq, AD, 9 (1938–40), No 78; Thakore Saheb Khanji Kashari Khanji v Gulam Rasul Chandbhal, ILR, 22 (1955), p 253.

10  See generally § 110. In the draft Articles on Jurisdictional Immunities of States and their Property under consideration by the ILC in 1989, a Head of State would appear to be within the definition of the term ‘state’ in draft Art 3, and subject as such to the distinction between acts iure imperii and iure gestionis in matters of immunity; but draft Art 4.2 stipulates that the draft articles are without prejudice to the privileges and immunities accorded under international law to Head of State ratione personae: ILC Rep (41st Session, 1989), paras 418, 443.

By the State Immunity Act 1978, English law now provides for the immunity of Heads of State on a statutory basis. In the relevant Part of the Act references to a state include references to the ‘sovereign or other head of that state in his public capacity’ (s 14(1)). A state is immune from the jurisdiction of the courts, subject to certain exceptions provided for in Pt I of the Act (s 1(1)), such as those relating to proceedings in respect of commerical transactions or immovable property. Subject to the application of Pt I of the Act to a Head of State in his public capacity, he, members of his family forming part of his household, and his private servants enjoy the same treatment as that accorded to heads of diplomatic missions and the equivalent members of their families and private servants (s 20(1) and (5)).

11  Some examples are given by Fauchille, i, § 647(1).

12  See Phillimore, ii, § CIV; Pradier-Fodéré, iii, § 1574; Klüber, § 49; Martens, G F, § 172. In 1878 the Shah of Persia, while on a visit to London, condemned to death a member of his suite.

13  During the Second World War many Heads of State and governments in exile had to operate on foreign soil, and special arrangements were made for the exercise of jurisdiction by them: see § 137, n 26.

See Hyde, i, § 246; Satow, p 10; Fauchille, i, § 647; Bluntschli, §§ 145–9; Hall, § 49; and paras 200–208 of the ILC’s Special Rapporteur’s 4th Report on Special Missions (YBILC (1967), vol I, pt 2, pp 31–2). In the UK, s 20(1) of the State Immunity Act 1978 accords to a Head of State’s private servants the equivalent treatment accorded to the private servants of a head of a diplomatic mission; but see n 3 below. For an earlier case involving a member of a Head of State’s suite, see Parry, BDIL, 7, pp 113–16, as to the case of Fazil Pasha in 1868.

See Martens, i, § 83. Section 86(4)(c) of the Indian Civil Procedure Code grants immunities to the retinue of a foreign Head of State to such extent as may be specified by the Government of India.

See § 511ff.

It should be noted that the retinue of a Head of State will include persons whose status and functions go beyond those of private servants. To that extent s 20(1) of the State Immunity Act 1978 (§ 451, n 10), which applies only to Heads of State, their families and private servants, may not wholly cover those who will usually accompany a Head of State on a visit abroad.

See Rivier, i, p 421; Pitt Cobbett, i, p 92; Pradier-Fodéré, iii, § 1576; Fauchille, i, § 647; Heyking, Hag R (1925), ii, p 285; Strisower, ibid (1923), i, p 269. But according to Martens, i, § 83 and Bluntschli, § 154, such exemptions need not in strict law be granted even to the wife of a sovereign, a view followed by an Indian court in 1945 in Rani Amrit Kunwar v Commissioner of Income Tax, ILR, 22 (1955), p 73: that decision, however, may turn on the limited nature of the rights enjoyed by the wife of a Ruler of a vassal state, and there is an implication (at p 74) that the wife of a fully sovereign Head of State would enjoy the like immunity as her husband. Canada in 1943 granted ‘extraterritoriality’ to the Queen of the Netherlands’ daughter in respect of the birth to her in Canada of the heir presumptive to the throne of the Netherlands: McNair, Opinions, i, p 127. As to the application of British nationality laws to the birth in the UK of a foreign Head of State’s child, see Parry, Nationality and Citizenship (1957), pp 234–5. See also Ex-King Farouk of Egypt v Christian Dior Sarl, ILR, 24 (1957), p 228, in which the ex-King was held responsible for purchases of clothes for his wife while she was Queen.

See § 513. But note the view of the ILC’s Special Rapporteur on Jurisdictional Immunities of States and their Property that the privileges and immunities of members of families of Heads of States are granted on the basis of international comity rather than in accordance with established rules of international law: ILC Rep (41st Session, 1989), paras 446, 450.

In the UK, the State Immunity Act 1978, s 20(1), applies to ‘members of [a Head of State’s] family forming part of his household’ the provisions of the Diplomatic Privileges Act 1964 (giving effect to the Vienna Convention on Diplomatic Relations) as that Act applies to members of the family of a head of a diplomatic mission forming part of his household. The application of the 1964 Act is ‘subject to any necessary modifications’. Neither ‘family’ nor ‘household’ is defined in either Act, and their application to particular cases would depend on the facts (see § 513). It is possible that, particularly in the context of the household, differences between the position of Heads of State and heads of diplomatic missions would lead to different conclusions, eg in relation to adult members of the immediate Royal family who live separately from the monarch but who continue to share with and assist in the exercise of certain Royal constitutional and representational functions, and can be regarded as forming part of the ‘Royal household’ in the wider, constitutional sense.

See the US Department of State’s suggestion of immunity for the wife of President Marcos of the Philippines in Estate of Silme G Domingo v Ferdinand Marcos: AJ, 77 (1983), p 305.

Thus in Kilroy v Windsor, Prince of Wales (1978), ILR, 81, p 605; US Digest, 1978, pp 641–3, a US District Court for the Northern District of Ohio, Eastern Division, in delivering judgment on 7 December 1978 dismissing a complaint against Prince Charles on grounds of immunity as a special envoy, attached some weight to the fact that Prince Charles was not just a minister or special envoy but Heir Apparent to the throne of the UK.

Thus they may serve their states as members of diplomatic missions, or as envoys on special missions. In Kilroy v Windsor, Prince of Wales (previous note) the State Department’s suggestion of immunity was based on the view that Prince Charles’ visit to Cleveland, Ohio, to which the proceedings related, was as a special diplomatic mission, and that he was considered to have been an official diplomatic envoy on that special mission; the court accepted that view.

See § 492, n 8.

When in March 1988 Prince Charles, Prince of Wales, was involved in a skiing accident in Switzerland resulting in the death of one person and injuries to others, the Swiss authorities carried out their normal inquiries into the incident, without any question of immunity becoming an issue.

See Hall, § 49; Calvo, iii, § 1461; Pradier-Fodéré, iii, §§ 1582, 1584; Heyking, Hag R (1925), ii, p 285; Martens, i, § 82; Bluntschli, § 140. Both the 1891 Project of the Institut de Droit International, Arts II and III (Annuaire, 11 (1892), p 436), and the 1932 Harvard Research Draft on the Competence of Courts in Regard to Foreign States, Arts 1(a) and 7–12 (AJ, 26 (1932), Spec Suppl, p 451), would allow suits against foreign Heads of States in respect of their (broadly speaking) non-sovereign activities. See also Sialelli, Clunet, 84 (1957), pp 719–23. Article 21 of the Convention on Special Missions 1969 (see § 533) provides that a Head of State who leads a special mission enjoys ‘the facilities, privileges and immunities accorded by international law to Heads of State on an official visit’, which suggests that on a private visit the treatment accorded to them could be different (and less).

A Head of State visiting an international organisation in a foreign state may not be, in relation to that state, on an official visit to it, although he would normally be granted by it a level of welcome and treatment appropriate to a non-official visit to that state: see AFDI, 30 (1984), p 979. Such visits may, of course, be covered by a special agreement between the organisation and the host state.

See Hall, §§ 48, 49; Sucharitkul, State Immunities and Trading Activities in International Law, p 27; Pitt Cobbett, i, p 90; Nys, ii, p 339; Strisower, Hag R (1923), i, p 266; Gabba, 15 Journal du Droit International Privé (1888), pp 180–91.

The ILC has expressed the view that ‘a Head of State … is entitled to special protection whenever he is in a foreign state and whatever may be the nature of his visit — official, unofficial or private’: Commentary on Art 1 of the draft Articles on the prevention and punishment of crimes against diplomatic agents and other internationally protected persons (YBILC (1972), vol II, pp 312–13). Under the Convention itself (§ 492, n 8) a Head of State is an internationally protected person ‘whenever’ he is in a foreign state: Art 1(a). In 1978 the British Government stated, in connection with a visit to the UK of King Hussein of Jordan, that the King ‘receives all the courtesies due to the head of a friendly foreign Government and is entitled to certain exemptions from immigration control’: Parliamentary Debates (Commons), vol 954, col 311 (written answers, 20 July 1978).

Nothing prevents the state being visited from granting such exemptions if it wishes, and there might even be a tacit or express agreement to that effect.

Perhaps also privately owned movable property abroad: see Pitt Cobbett, i, p 93; Hall, § 49; Satow, p 10; Phillimore, ii, p 140; Rivier, i, p 417.

In English law, immunity has long been recognised for private activities, and is now, by s 20 of the State Immunity Act 1978 (§ 451, n 10) accorded on the same basis as it is to a head of a diplomatic mission. See Mighell v Sultan of Johore [1894] 1 QB 149; Statham v Statham and the Gaekwar of Baroda [1912] p 92; Sayce v Ameer Ruler of Bahawalpur State [1952] 2 QB 390. Duke of Brunswick v King of Hanover (1844) 6 Beav 1, 2 HLC 1, was a special case in that the King was also a British subject. But in respect of private matters just as in official ones, immunity may be waived, as by the Head of State appearing as plaintiff: Emperor of Brazil v Robinson (1837) 5 Dowl 522; Sultan of Johore v Abubakar [1952] AC 318. Italian courts have declined to grant immunity to a Head of State in respect of obligations incurred by him in a private capacity before becoming Head of State, although he assumed that office during the course of the proceedings: Nobili v Charles I of Austria, AD, 1 (1919–22), No 90; and French courts have, obiter, strongly suggested that they would have jurisdiction in respect of acts done by a Head of State in his private capacity: Wiercinsky v Sayyid Ali Ben Hammond, Clunet, 44 (1917), p 1465, and some older French cases referred to by Sucharitkul, State Immunities and Trading Activities in International Law (1959), p 49, n 2. Indian courts have regarded probate proceedings as not constituting a ‘suit’ from which a foreign Head of State is immune under Art 86 of the Indian Civil Procedure Code (Maharaj Indrajitsinghji Vijaysinghji v H H Maharaja Rajendrasinghji Vijaysinghji, ILR, 22 (1955), p 244), but have held that Article to grant immunity to a Head of State sued in respect of land of which he was trustee (Rewa Shankar and Another v Narasinghji Maharaj and Others, ILR, 24 (1957), p 229): and for an Indian decision concerning proceedings against a partnership, of which one of the partners was entitled to the immunities of a Head of State, see Mandalsa Kumari and Others v M Ramnarain Private Ltd, ILR, 27 (1958), p 109. A Belgian court in 1870 declined jurisdiction in proceedings against the Emperor of Austria as tutor of the minor children of the Princess of Tour and Taxis (Strisower, Hag R (1923), i, p 265). See also a Hungarian decision, X v Prince Lippe-Schaumburg, AJ, 26 (1932), Special Suppl, p 477. As to the status of marriages between members of reigning families of different states, see Fauchille, i, § 6472.

See Martens, i, § 80; Bluntschli, §§ 128, 134; Hall, § 97; Rivier, i, p 424; Pitt Cobbett, i, p 92; Heyking, Hag R (1925), ii, pp 283–4; Pradier-Fodéré, iii, § 1576.

Mighell v Sultan of Johore [1894] 1 QB 149. So also King William of Holland, when travelling incognito in Switzerland in 1873, was condemned to a fine for some slight offence, but the sentence was not carried out as he gave up his incognito. See Lawrence, Commentaire sur Wheaton, iii, p 428; Pradier-Fodéré, RI, 5 (1873), p 246. For an instance of a Head of State (in casu, a president) travelling incognito in a country between his own and which diplomatic relations had been broken off, see RG, 16 (1909), pp 95–9.

The death of a Head of State may also give rise to problems. For two older instances concerning the estate in England of a deceased President of France, see Journal du Droit international privé, 21 (1894), p 1142, and 22 (1895), p 691; and for various problems concerning the assets of the Shah of Iran, who died in 1980, see RG, 84 (1980), pp 1110–12; see also n 2 below.

As to payment of estate duty or inheritance tax on the property abroad belonging to a deceased monarch see 26 Journal du Droit international privé (1899), p 214 (estate in England of the late Empress of Austria); Lehr, ibid, p 311; and Hackworth, ii, p 404 (estate in the USA of the late Prince of Monaco). See also In the Estate of the King of Siam, deceased (1912) 29 TLR 40, for a grant of letters of administration in the estate in England of a deceased monarch on behalf of his successor to the throne; Secretary of State in Council of India v Kamachee Boye Sahaba (1859) 7 Moo Ind App 476, concerning the succession to the property, both public and private, of a deceased independent sovereign ruler who died intestate.

In Re Estate of King Faisal (1960), ILR, 31, p 395, the Court dismissed on grounds of sovereign immunity an application by the administrator of the late King’s estate seeking to compel certain consular officers of Iraq to submit to examination concerning property allegedly belonging to the late King.

Mellerio v Isabelle de Bourbon, Clunet, 1 (1874), p 33; Wiercinsky v Sayyid Ali Ben Hammond, Clunet, 44 (1917), p 1465; Thakore Saheb Khanji Kashari Khanji v Gulam Rasul Chandbhal, ILR, 22 (1955), p 253. Such immunity as he may still have may be waived by the current government: Re Grand Jury Proceedings, Doe No 700 (1987), ILR, 81, p 599; Re Doe, AJ, 83 (1989), p 371. See generally as to the position of ex-Heads of State, Decaux, AFDI, 26 (1980), pp 101–39.

After the Shah of Iran had been deposed in 1979 (as to which see RG, 83 (1979), pp 803–14), the USA and Iran resolved certain differences which existed between them (the so-called ‘hostages crisis’: see § 494, n 21) by the Algiers Accords of 1981: ILM, 20 (1981), p 223. By Point IV of the Declaration of the Algerian Government (at pp 227–8; and see also pp 285, 292) the US Government agreed to freeze the assets of the former Shah or any close relative, and to notify US courts that any claim by Iran to recover those assets should not be barred either by sovereign immunity principles or by the act of state doctrine. This did not amount to a guarantee that proceedings in US courts would be allowed to proceed where they would be dismissed on other grounds, such as forum non conveniens: Islamic Republic of Iran v Pahlavi (1984), ILR, 81, p 557.

With the overthrow of President Marcos of the Philippines in 1986, and his flight to exile in Hawaii (where he died in 1989), steps were taken by the successor Government in the Philippines to recover assets held abroad by Marcos and his wife and allegedly belonging not to them personally but to the State of the Philippines. As to cooperation between the US and Philippines governments in this context, see ILM, 25 (1986), pp 403–9. See also Azurin v von Raub, AJ, 80 (1988), p 961; Republic of the Philippines v Marcos (1986), ILR, 81, p 581; Republic of the Philippines v Marcos (No 2) (1987), ibid, p 609 (and for comment on the two last cases, Meagher, Harv ILJ, 29 (1988), pp 127–34); In re Grand Jury Proceedings, Doe No 700 (1987), ILR, 81, p 599; Re Doe, AJ, 83 (1989), p 371. See also RG, 92 (1988), pp 127, 162–3, and 93 (1989), p 438.

As to the overthrow of King Constantine of Greece in 1967, see § 43, n 1. As to the status in France of ex-President Bokassa of the Central African Republic after his overthrow in 1979, see AFDI, 26 (1980), pp 878–9.

As to the exile in France of ex-president Duvalier of Haiti see RG, 90 (1986), pp 999–1000, 91 (1987), pp 1345–6, and, as to his property in the USA, ibid, pp 956, 1334; and Jean-Juste v Duvalier, AJ, 82 (1988), p 594; Republic of Haiti v Duvalier [1989] 1 All ER 456.

Ex-King Farouk of Egypt v Christian Dior Sarl, ILR, 24 (1957), p 228 (and Note by Siatelli in Clunet, 84 (1957), pp 719–23); Société Jean Dessès v Prince Farouk and Mrs Sadek (1963), ILR, 65, p 37. For the extradition of an ex-president for crimes committed while in office, see Jimenez v Aristeguieta (1962), ILR, 33, p 353; and see also First National City Bank v Aristeguieta(1960), ILR, 31, p 374. Nothing, of course, prevents a state from granting to a foreign ex-Head of State the same privileges as it grants to a current Head of State, but international law does not exact any such courtesy.

As to the legal position of the former German Emperor in Holland and the Dutch refusal to surrender him, see vol II of 7th ed of this work, § 253. For some older opinions of the Law Officers of the Crown on the subject of abdicated monarchs, see McNair, Opinions, i, pp 104–10.

See Hatch v Baez (1876) 7 Hun 596, granting immunity in an action against the former President of the Dominican Republic in respect of his official acts. In the USA, the Act for the Protection of Foreign Officials and Official Guests of the United States 1972 (AJ, 67 (1973), p 622) includes in the definition of ‘foreign official’ benefiting from the protection of the Act not only a Head of State but also ‘any person who has previously served in that capacity’.

As to the position in the UK, see the Regency Acts 1937–53.

Thus, after a monarch has been deposed, a regent may be appointed for the period until a republic has been proclaimed and established. As to the regency established in Greece in 1967, when King Constantine was removed from power but not formally deposed as monarch, see § 43, n 1, and § 466, n 3.

For the lack of competence of the natural guardian of an infant Head of State to perform political acts on his behalf, see McNair, Opinions, i, p 29. See also Salaman v Secretary of State in Council for India [1906] 1 KB 613, in which it was alleged that the authority which assumed the custody of an infant sovereign ruler assumed obligations as trustee or guardian.

As to responsibility for his acts, when a monarch is at the same time the subject of another state, see vol I of 3rd ed of this work, § 353, and Duke of Brunswick v King of Hanover (1844), 6 Beav 1; 2 HLC 1. See also Fauchille, i, § 6321; McNair, Opinions, i, pp 15–26. Even if a monarch is a subject of another state, his entitlement to immunity in a third state is apparently unaffected: see Sayce v Ameer Ruler of Bahawalpur State [1952] 2 QB 390, 398.