Points of law

- immunity of foreign States is restricted to acts jure imperii alone, where the State exercises its sovereignty

- honorary consuls enjoy immunity from jurisdiction for acts practised in the exercise of the consular function since it is a public administrative function

Summary of the case

In an appeal before the Supreme Court by one individual against the Republic of Bolivia, the Court considered that:

According to customary international law, foreign States are entitled to immunity from jurisdiction, based in the principle par in parem non habet imperium, automatically received in the Portuguese domestic law in accordance with article 8º/1 of the Constitution of the Republic. Acts of a public nature – acta jure imperii – are those which derive from the exercise of public power and constitute the realisation of a public function of the collective person, regardless of whether they are accompanied or not of coercive means and of technical or other rules that should be applied. Acts of a private nature – acta jure gestionis – are those comprised in an activity of the collective person that, in the absence of the public power, acts in a position of parity with private persons, in the same conditions and regime that would apply to a private person, the private law rules being applicable. Immunity of foreign States is restricted to acts jure imperii alone, for this rule having its basis in the principle of equality and autonomy, it is logical that such immunity is only to exist where the State exercises its sovereignty. Honorary consuls, that perform a merely administrative role, enjoy immunity from jurisdiction for acts practised in the exercise of the consular function since it is a public administrative function.

Sources

Boletim do Ministério da Justiça, 1997, No. 464

Additional information (explanations, notes, etc.)

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