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Heads of State

Sir Arthur Watts

Subject(s):
Recognition of states — Sovereignty — Territory, non-self-governing — States, equality — Heads of state and other senior officials — Immunity from jurisdiction, states — Comity
Published under the auspices of the Max Planck Institute for Comparative Public Law and International Law under the direction of Rüdiger Wolfrum.

A.  Basic Concepts and Problems

All independent State[s] normally have a Head of State. Exceptions are temporary and due to extraordinary circumstances, as with a State defeated in an armed conflict, or where the State’s governmental structure has collapsed (Failing States).

The nature of the office of Head of State is a matter for each State to determine for itself although occasionally the maintenance of a particular form of constitutional structure is the subject of a treaty obligation (Peace Treaties). Each State also determines whether its Head exercises substantive executive powers of government, or is a ‘constitutional’ Head of State with only essentially formal representational functions while the substantive government of the State is in the hands of a government headed by a Prime Minister (or equivalent) (Heads of Governments and other Senior Officials). States have adopted a variety of structures and titles for their Heads of State. Although strictly speaking monarchy means rule by a single person and thus includes rule by a president, State practice distinguishes between monarchies which have a hereditary ruler such as a king, queen or prince, to which the terms ‘monarchy’ and ‘monarch’ apply, and republics, which have an elected Head of State, usually a president. Monarchs are in principle themselves the sovereign power in the State (Sovereignty). In republics it is the people who are sovereign: the president is their representative elected for stipulated periods, although the concept of ‘president for life’ is not unknown. Apart possibly from certain ceremonial matters, no distinction is now made between monarchs and presidents as regards their substantive treatment. A person may be Head of State in respect of more than one State (eg the Head of State of the United Kingdom who is also separately the Head of State of several other Commonwealth States). Heads of State are usually single individuals, but (as in Switzerland, and in Bosnia-Herzegovina) the office may be vested in a collegial body of two or more people. All such internal constitutional differences have no substantive bearing on the position of Heads of State in international law (see also International Law and Domestic [Municipal] Law).

Whether a person is entitled to be regarded as a Head of State is primarily a matter for the law of that State. The International Court of Justice (ICJ), however, rather than inquiring into the relevant domestic law, preferred to rely on the fact of recognition by, in particular, the United Nations (UN) (Application of the Convention on the Prevention and Punishment of the Crime of Genocide [Bosnia and Herzegovina v Yugoslavia] [Preliminary Objections]para. 44 [‘Genocide Convention Case’]; Application of the Convention on the Prevention and Punishment of the Crime of Genocide Case [Bosnia and Herzegovina v Serbia and Montenegro]). A person who is the effective ruler of a State without being, or being recognized as, its titular Head of State (or government) is not entitled to be treated as Head of State (cf the arrest and trial by the United States of General Noriega of Panama in 1989–90). To be entitled to treatment as a Head of State the entity of which the person claims to be the Head must indeed be a State: such cases will turn on whether the entity is recognized as such. A Head of a State which is not fully independent (Non-Self-Governing Territories) may not be entitled as a matter of international law to the same treatment as Heads of independent States, although other States may accord that level of treatment as a matter of courtesy (see also Comity).

The position of Heads of State in international law is sometimes difficult to state with confidence. They are essentially sui generis; relevant State practice is sparse and their treatment depends as much on considerations of protocol and usage as on rules of international law. Although a few aspects of their position are now regulated by treaty, it is still essentially a matter of customary international law. Apart from their functional need for special treatment, there are the added considerations that they are the personification of their States and either themselves embody or represent the sovereign power of the State. Useful guidance can sometimes be derived from the treatment accorded to senior State officials or ambassadors or the State itself, although there is no compelling analogy between their positions (Heads of Diplomatic Missions; Consuls; Immunities; Immunity, Diplomatic; State Immunity; Analogy in International Law).

B.  International Functions, Attributes, and Powers of Heads of State

Heads of State’s position in international law derive from international rights and duties of their States, and not from their own personal entitlement (States, Fundamental Rights and Duties). He personifies the State, representing its persona to the outside world. As a matter of international law a Head of State possesses the ius repraesentationis omnimodae, that is the right to represent the State internationally in all respects, and the competence to act for it internationally, with all his legally relevant acts being attributable to the State (see para. 9 below). ‘According to international law, there is no doubt that every Head of State is presumed to be able to act on behalf of the State in its international relations’ (Genocide Convention Case para. 44). In Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda) (Jurisdiction and Admissibility), the ICJ observed that

it is a well-established rule of international law that the Head of State... [is] deemed to represent the State merely by virtue of exercising [his] functions, including for the performance, on behalf of the said State, of unilateral acts having the force of international commitments. (at para. 46; see also Armed Activities on the Territory of the Congo Cases)

The ICJ added that that rule of customary law

finds expression in Article 7, paragraph 2, of the Vienna Convention on the Law of Treaties, which provides that ‘[i]n virtue of their functions and without having to produce full powers, the following are considered as representing their State: (a) Heads of State,... for the purpose of performing all acts relating to the conclusion of a treaty’. (ibid; see also Vienna Convention on the Law of Treaties [1969] [‘VCLT’]).

This provision deals both with the way in which a person’s function as a State’s representative is established, eg by the production of the document known as a ‘full powers’, and with the extent of that person’s powers when exercising that representative function; and although Art. 46 VCLT protects manifest constitutional limitations on the competence to conclude treaties (Treaties, Conclusion and Entry into Force), a limitation upon a Head of State’s capacity in this respect is not manifest unless properly publicized; see Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) para. 265 (Land and Maritime Boundary between Cameroon and Nigeria Case [Cameroon v Nigeria]). Art. 67 (2) VCLT similarly allows a Head of State to bring a treaty to an end without the need for full powers (see also Treaties, Termination).

The competence of a Head of State to bind the State includes the submission of a valid application initiating proceedings in the ICJ (Genocide Convention Case para. 44). A Head of State’s official statements (including at a press conference) may create international legal obligations binding on the State (Nuclear Tests [Australia v France] paras 37, 41; Nuclear Tests Cases; Armed Activities [Congo v Rwanda] para. 46). But off-the-cuff comments at a press conference will not normally produce the same binding effect (Frontier Dispute [Burkina Faso/Republic of Mali] paras 36, 39–40; Frontier Dispute Case [Burkina Faso/Republic of Mali]).

Most national constitutions confer on their Heads of State various internationally relevant powers. These include in particular the reception and appointment of ambassadors (Diplomatic Relations, Establishment and Severance), the conclusion of treaties, the declaration of war (Humanitarian Law, International) and the conclusion of peace. But the exercise of those powers is often qualified by the internal law of the State. Such domestic provision conferring powers on a Head of State does not preclude the attribution of additional powers by international law, nor are domestic limitations upon his powers necessarily effective on the international plane.

C.  International Accountability of 
Heads of State

A Head of State’s acts or omissions when acting in an official capacity as an organ of the State are attributable to the State itself. If they involve a breach of the State’s international obligations, the State bears international responsibility for them (State Responsibility).

10  Where an international criminal tribunal with jurisdiction over serious international offences such as war crimes, crimes against humanity and genocide indicts a Head of State—or former Head of State, as he may be by that stage—for such offences, any immunity to which he might otherwise in general be entitled will not be available (Individual Criminal Responsibility; Individuals in International Law; see also International Criminal Law).

11  After World War I, Art. 227 Versailles Peace Treaty (1919) arraigned the former German Kaiser William II ‘for a supreme offence against international morality and the sanctity of treaties’, but his trial never took place. Art. 7 Charter of the Nuremberg International Military Tribunal (1945) stipulated that the official position of defendants as Head of State did not free them from responsibility or mitigate punishment (Germany, Occupation after World War II; International Criminal Courts and Tribunals, Defences; International Military Tribunals; see also Principle III of the Nuremberg Principles adopted by the International Law Commission [ILC] in 1950). The equivalent provision in Art. 6 Charter of the International Military Tribunal for the Far East (1946) did not refer to the Head of State since the decision had already been taken not to indict Emperor Hirohito of Japan. Recent practice has followed the Nuremberg precedent. Art. 7 Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY) (1993) provides that the official position of any accused person as Head of State shall not relieve such person of criminal responsibility nor mitigate punishment. The Tribunal duly prosecuted former President Milošević of Yugoslavia, who died in prison before a verdict could be handed down (Milošević Trial). See also Art. 6 Statute of the International Criminal Tribunal for Rwanda (ICTR) (1994) and Art. 27 Rome Statute of the International Criminal Court (ICC) (1998). In 2009 the ICC issued an arrest warrant against a serving Head of State, President Bashir of Sudan. Sudan was not a party to the Rome Statute but the ICC determined that it could proceed on the basis that the UN Security Council had expressly referred the situation in Darfur to the ICC Prosecutor (Prosecutor v Omar Hassan Ahmad Al Bashir [Warrant of Arrest] [4 March 2009] ICC-02/05-01/09). While Charles Taylor was still President of Liberia, the Special Court for Sierra Leone (‘SCSL’) indicted him for various serious international offences committed in Sierra Leone and rejected his attempt to have the indictment quashed on grounds of immunity (Prosecutor v Taylor; Mixed Criminal Tribunals [Sierra Leone, East Timor, Kosovo, Cambodia]).

D.  International Immunities and Privileges of Heads of State

12  How States treat their own Heads of State within their own territories is in principle no concern of international law, which looks rather to their treatment by other States. No multilateral treaty deals directly and in general with the position of Heads of State. The European Convention on State Immunity (1972) has no provision dealing in terms with Heads of State, while Art. 3 (2)United Nations Convention on Jurisdictional Immunities of States and Their Property (2004), expressly provides that the ‘Convention is without prejudice to privileges and immunities accorded under international law to heads of State rationae personae’. That provision says nothing about what those privileges and immunities might be. The same is true of those treaties (eg Art. 21 Convention on Special Missions 1969; Immunities, Special Missions; Special Missions) which, while acknowledging the entitlement of Heads of State to special treatment, including protection and inviolability as well as other immunities and privileges, identify the appropriate level of treatment by an unspecific reference to that which is accorded by international law. Such provisions leave to customary international law the determination of which specific facilities, privileges and immunities are accorded to Heads of State (Arrest Warrant Case of 11 April 2000 [Democratic Republic of the Congo v Belgium] para. 52; Arrest Warrant Case [Democratic Republic of the Congo v Belgium]).

1.  Dignity

13  Since a Head of State personifies the State, an affront to his dignity is in principle an affront to the dignity of the State itself. However, dignity, as a quality deserving of legal protection, is a somewhat elusive concept. The ICJ has found that an invitation to a foreign Head of State to testify as a witness in criminal proceedings did not violate his inviolability and was not in itself sufficient to constitute a breach of the obligation to prevent attacks on his dignity. It noted, however, that the invitation which was sent without prior consultation and which set a short deadline for response did constitute a failure ‘to act in accordance with the courtesies due to a foreign Head of State’ (Certain Questions of Mutual Assistance in Criminal Matters [Djibouti v France] [‘Mutual Assistance Case’] para. 172). It also noted that, if the requesting authorities had passed confidential information regarding the invitation to the press, in the context of an official visit by the foreign Head of State, this could have amounted to a failure to discharge the obligation to protect his dignity (ibid paras 174–75). Formerly the publication of offensive material about a foreign Head of State, or insulting conduct directed against a foreign Head of State, was treated as a violation of his dignity and as such an international wrong. But State practice has become more tolerant of such conduct and pays less regard to such abstract notions as dignity, and the proscription of conduct inconsistent with a Head of State’s dignity has now to be balanced against the public’s entitlement to freedom of expression. This is shown by the decision of the English Court of Appeal in relation to the Sultan of Brunei (Aziz v Aziz and Others HM The Sultan of Brunei Intervening). Although international law still protects the dignity of Heads of State, it may no longer do so, in circumstances where such entitlement is in play, in anything less than extreme circumstances of personal offence or insult.

2.  Protection and Inviolability

14  States have an obligation to protect the person of a visiting Head of State, and to punish those who cause him injury. By Art. 2 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (1973), the person of a foreign Head of State is protected against certain specific serious acts, but by Art. 2 (3) these provisions do not ‘derogate from the obligation of States Parties under international law to take all appropriate measures to prevent other attacks on the person, freedom or dignity of [a Head of State]’.

15  A Head of State’s person, residence, and property in the State being visited are inviolable: officials of that State may not inspect his person or property or enter upon the premises occupied by him. Since an arrest warrant against a Minister of Foreign Affairs infringes the Minister’s inviolability (Arrest Warrant Case paras 70–71), the same would a fortiori be true in relation to a Head of State (Mutual Assistance Case paras 170, 174).

3.  Property

16  Apart from the inviolability which attaches to the property of a Head of State, property owned by a Head of State in a foreign State for official purposes will probably be regarded as the property of the foreign State, and as such subject to the legal regime applying to State property, affording it a wide exemption from measures of attachment, arrest or execution (see Arts 18–21United Nations Convention on Jurisdictional Immunities of States and Their Property [2004]).

17  A Head of State probably enjoys extensive immunity in relation to property owned or held by him in a foreign State for private or non-official purposes, particularly in so far as measures of execution against such property are prohibited when he is in the foreign State in the exercise of his official functions.

4.  Criminal, Civil, and 
Administrative Jurisdiction

18  In the Arrest Warrant Case the ICJ said that ‘in international law it is firmly established that... certain holders of high-ranking office in a State, such as the Head of State... enjoy immunities from jurisdiction in other States, both civil and criminal’ (at para. 51). The application of this general principle will often involve the interplay of various factors, such as whether the Head of State is in the territory of the foreign State in which the question of jurisdiction has arisen, whether if so he is there on official business or on a personal visit, whether the conduct in relation to which the question of jurisdiction arises was official conduct or private conduct, and whether the jurisdiction to be exercised is criminal or civil. If a senior official is granted immunity in given circumstances this suggests, a fortiori, a like conclusion for a Head of State in like circumstances.

19  So far as concerns criminal proceedings in foreign courts, a Head of State enjoys absolute immunity. This follows a fortiori from the Arrest Warrant Case, where the ICJ said, in relation to a Foreign Minister, that

throughout the duration of his or her office, he or she when abroad enjoys full immunity from criminal jurisdiction and inviolability.... In this respect, no distinction can be drawn between acts performed by a Minister for Foreign Affairs in an ‘official’ capacity, and those claimed to have been performed in a ‘private capacity’, or, for that matter, between acts performed before the person concerned assumed office... and acts committed during the period of office. (at paras 54–55)

To the same effect was the decision of the French Cour de Cassation in relation to Colonel Ghadaffi, the then Head of State of Libya (Arrêt relatif aux poursuites engagées contre le colonel Kadhaffi). Given the attitude of international tribunals in respect of senior State officials it seems that the customary law rule of absolute immunity applies even if the criminal offence of which the Head of State is accused involves the commission of war crimes and crimes against humanity, or even the violation of a rule of ius cogens (but see paras 21–22 below, regarding former Heads of State; and note the readiness of some national courts to deny immunity to foreign States in respect of conduct involving serious international offences and violations of ius cogens).

20  So far as concerns the civil and administrative jurisdiction of a foreign State, the extent of a Head of State’s immunity is controversial, and State practice is not uniform. In cases involving conduct performed in a sovereign and official capacity a Head of State will be entitled to immunity, either rationae personae or by virtue of his conduct being equated with that of the State so that questions of immunity are determined on the basis of rules on State immunity. Beyond that, and in particular in relation to conduct performed in a private capacity, a Head of State is probably entitled to at least the degree of immunity to which an ambassador is entitled under Art. 31Vienna Convention on Diplomatic Relations (1961), namely full immunity subject to certain very limited exceptions of peculiarly local and personal significance; although it may be that such immunity only applies while the Head of State is in the receiving State’s territory in the exercise of official functions.

5.  Former Heads of State

21  The conduct of former Heads of State before they attained office or after they have left office will almost by definition be conduct performed in their private capacities. Once they have ceased to hold office there would seem to be no sound grounds for them to enjoy any immunity in respect of such conduct: their immunity rationae personae has come to an end, and their private acts will not benefit from immunity rationae materiae. If after leaving office they are given some special international function to perform, then any question of immunity will fall to be determined on the basis of that special function rather than on the basis of their former capacity as a Head of State.

22  As regards their entitlement to immunity in respect of their conduct while in office, a former Head of State enjoys no immunity if charged before an international criminal tribunal with serious international offences (see para. 10 above). His continuing immunity rationae materiae will not benefit him, after leaving office, in respect of his private conduct while in office, but it will continue to protect him in respect of his official conduct as Head of State, since his official conduct (like a diplomat’s) is beyond the purview of the courts of foreign States. However, the decision of the House of Lords in the Pinochet Cases suggests that former Heads of State may not enjoy immunity in respect of acts of torture (see also Torture, Prohibition of) or other crimes under international law—especially if they violate a rule of ius cogens—committed or authorized by them while in office since such acts may in principle be incapable of falling within the category of ‘official acts’. Some national courts have denied immunity to foreign States themselves in respect of conduct involving serious international offences and violations of ius cogens. On the other hand, there are decisions upholding immunity in such circumstances in respect of senior State officials still in office.

E.  Assessment

23  It is only relatively recently that the international legal position of Heads of State has come under close scrutiny. Heads of State used to be regarded as enjoying a very wide, and perhaps absolute, immunity from any jurisdiction outside their own States, partly because of their special sovereign representative character, reinforced by the still widespread absolute jurisdictional immunity enjoyed by States. But a general decline in the deference paid to holders of high offices of State, the general replacement of absolute immunity by qualified immunity in the case of States, and the increasing emphasis on functional needs rather than personal status as the proper basis for immunity have led to the international legal position of Heads of State being looked at more critically. The details, however, remain uncertain. Heads of State are sui generis, and analogies drawn with the position of Foreign Ministers, or the State’s ambassadors abroad, or the State itself, are far from perfect.

24  Since no treaty deals generally with the position of Heads of State, for the most part their position is a matter of customary international law. Certain basic principles—such as the equality of States (States, Sovereign Equality), and considerations of State or sovereign immunity—are helpful but inadequate as a basis for the coherent evolution of this branch of the law. The last quarter of a century in particular has seen the growth of a marked sense of unease with notions of anything near the extensive immunity previously thought to be enjoyed by Heads of State as a matter of international law. A heightened interest in the protection of human rights and the emergence of rules of ius cogens have together opened the door to the possibility of challenging the conduct of Heads of State in the courts of foreign States and seeking to override the immunity to which they may be entitled in customary international law.

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