Part 3 Organs of the states for their international relations, Ch.9 Heads of States and Foreign Offices, Position of Heads of State According to International Law
Sir Robert Jennings qc, Sir Arthur Watts kcmg qc
Edited By: Robert Jennings, Arthur Watts KCMG QC
- Heads of state and other senior officials — Diplomatic privileges
Position of Heads of State According to International Law
Sucharitkul, State Immunities and Trading Activities in International Law (1959), pp 47–50, 294–5 Cahier, Le Droit diplomatique contemporain (1962), pp 333–46 Whiteman, Digest, 7, pp 495–502 Parry, BDIL, 7, pp 3–123 Satow, Chs 2 and 5 Murty, The International Law of Diplomacy (1989), pp 135–46, 333–5.
The highest organ of the state, representing it, within and without its borders, in the totality of its relations, is the Head of State.1 Such Head is the monarch in a monarchy and a president or a body of individuals in a republic. International law prescribes no rules as to the kind of Head a state may have. The position which a Head of State has according to international law is derived from international rights and duties belonging to his state, and not from international rights of his own.
Formerly the Head of State was usually also the effective governing authority in the state, and represented his state internationally in a very real way: relations between states were often synonymous with relations between their heads. However, over the last century or so there has been a tendency in many (but not all)2 states for the Head of State to assume a formal constitutional role, and for the substantive government of the state to be in the hands of a government with its own head, usually known as a Prime Minister, although other titles, such as Chancellor, are also used. Although in such cases the head of government undertakes in many respects the functions formerly performed by the Head of State, he (or she) nevertheless does not represent the international persona of the state in the way in which the Head of State does.3
The Head of a State is competent in international law to act for his state in its international intercourse, and all his legally relevant international acts are attributable to his state. This competence, ius repraesentationis omnimodae, comprises in substance chiefly: reception and dispatch of diplomatic agents and consuls, conclusion of treaties, declaration of war, and conclusion of peace. Heads of States exercise this competence not in their own right but on behalf of and as representing their states. Their competence may be qualified by the internal laws of their states, as for example, in connection with the conclusion of treaties.1
All Heads of State1 must be accorded certain honours and privileges by foreign states.2 Although in this References(p. 1035) matter a distinction has been drawn between monarchs and heads of republics,3 the practical consequences of that distinction are not always clear or substantial, and the traditional rules which sanctioned the pre-eminence of monarchs, in matters of ceremony or otherwise, are to a large extent obsolete. In matters of ceremony it is increasingly the case that a visiting president of a republic is accorded such ceremonial honours as are accorded to a monarch. A Head of State must not abuse the privileged position he enjoys when in another state; in the unlikely event of his doing so the state being visited is not obliged to tolerate his continued presence.4
1 As to the recognition of new Heads of State, see §§ 42–44.
2 Thus the President of the USA is both Head of State and head of government. For a list of 68 states whose heads are also heads of governments, and of 80 in which the two offices are divided, see Parliamentary Debates (Lords), vol 388, cols 1405–6 (written answers, 14 February 1978).
3 The head of government may from time to time conduct international affairs on behalf of the state. Like the Head of State and the Foreign Minister, the head of government does not have to furnish any evidence of authority to negotiate, draw up, authenticate or sign a treaty on behalf of the state: Vienna Convention on the Law of Treaties 1969, Art 7.2. See also Art 7.2 of the Vienna Convention on the Law of Treaties between States and International Organisations 1986 (see § 596). The legal status of special missions abroad led by a head of government (and other senior ministers) is considered at §§ 531–3. A head of government is covered by the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 1973, Art 1(1)(a): see § 492, n 8. In Saltany v Reagan (1988), ILR, 80, p 19, the US State Department delivered to the court a suggestion of immunity in respect of one of the defendants, the British Prime Minister, as the sitting head of government of a friendly foreign state: the court accordingly dismissed the complaint against the Prime Minister.
It is also necessary in some cases to distinguish carefully between a titular Head of State or government and the effective ruler of the state. The latter is not necessarily to be treated as if he had the status of the former. Thus in January 1989 a US federal judge in Miami denied a claim to immunity from criminal jurisdiction put forward by General Noriega, the former effective military leader, but not formally Head of State or government, of Panama (and see further § 129, n 13, para 6, and § 130, n 14).
1 See § 636.
The ‘war power’ of the President of the USA has been the subject of much controversy, especially in the context of the scope of the President’s right to commit US forces to military operations abroad without the consent of Congress, with particular reference to the conflict in Indo-China. See Berk v Laird (1970), ILR, 56, p 21; Sarnoff v Connally (1972), ILR, 60, p 14; Mitchell v Laird, ILM, 12 (1973), p 631; Congressional Report (April 1973), ibid, p 699; State Department Memorandum of 30 April 1973, ibid, p 714; Holtzman v Schlessinger, ibid, pp 783, 822, 829, 842, and Note by Hall, ILM, 13 (1974), pp 446–7; Congressional Joint Resolution of 7 November 1973 (War Powers Resolution), ILM, 12 (1973), p 1521; Drinan v Nixon, AJ, 68 (1974), p 336; Lowry v Reagan, AJ, 82 (1988), p 596; Franck, AJ, 71 (1977), pp 605–41; Sofaer, War, Foreign Affairs and Constitutional Power: The Origins (1976); Wormuth and Firmage, To Chain the Dogs of War (1986); Franck, AJ, 83 (1989), pp 766–77; Reisman, ibid, pp 777–85; Raven-Hansen, ibid, pp 786–95.
1 A state which is not fully independent may not be entitled in international law to claim the same treatment for its head. Other states may, of course, accord to them the same treatment as they accord to a head of a fully sovereign state, even if that is not required by international law. See § 81, n 3 and § 82, n 4.
2 The basis for the special treatment accorded Heads of State is variously ascribed, inter alia, to the dignity which is a recognised quality of states as international persons (§ 115); the respect due to them as representatives of sovereign states; their personal character as sovereigns (in the case of monarchs); the equality and independence of sovereigns and sovereign states and the principle par in parem non habet imperium; the incompetence of municipal law in an essentially international relationship; the practical need to ensure the free exercise by him of his functions as the highest organ of the state; the requirements of satisfactory international intercourse; the implied licence of the state being visited; and the dictates of international comity and courtesy. At one time or another each of these considerations has to a greater or lesser degree played its part, in conjunction in particular countries with purely domestic considerations, such as the English doctrine that the Crown could not be sued in its own courts. The law relating to the position of Heads of State abroad has affinities with, but is now separate from, that relating to state immunity (which has a common origin in the identification of a sovereign with his state) and the treatment of diplomatic envoys (who also represent sovereign states).
4 In 1967 President de Gaulle of France, while on an official visit to Canada, made a speech which was understood as pledging the support of France for the secessionist movement in the Canadian province of Quebec — an impression which the President did nothing to remove. This was regarded as an interference in Canadian internal affairs, and the reaction was such that the President felt it necessary to terminate his official visit. See RG, 72 (1968), pp 164–6.
A case of a state taking formal action to forbid entry to its territory of the Head of State of a friendly foreign country occurred in April 1987 when the US Department of Justice announced that it had placed President Waldheim of Austria on a ‘stop list’ barring him from entry into the USA as a private citizen because of his activities during the Second World War. See RG, 91 (1987), pp 1315–16.