Pedigree Prosecution: Should a Head of State’s Family Members Be Entitled to Immunity in Foreign Courts?

By Yena Hong

Abstract

States tread carefully in international affairs to maintain mutual respect for sovereignty. In today’s legal order, a head of state is the sovereign state personified. Until the twentieth century, heads of state did not routinely travel outside of their respective domains. Consequently, mutual respect for foreign sovereigns was usually implemented in national courts by recognition of immunity for diplomats and public vessels—paradigmatically, warships. Today, heads of state often travel to other countries, and it is increasingly accepted as customary international law that a head of state cannot be sued or prosecuted in a foreign court on the basis of any of his or her acts, public or private. To permit such prosecution or litigation would invite reciprocal retaliation and ultimately risk a breakdown of relations between the countries involved.

But should a head of state’s family members also have absolute immunity in foreign countries, particularly for private acts with no plausible connection to official functions? Despite progress in crystallizing the scope of customary international law of head-of-state immunity, there is scant discussion regarding the international law basis of immunity for members of a head of state’s family. Some states have invoked the Vienna Convention on Diplomatic Relations (VCDR) to grant head-of-state family members “diplomatic immunity” from local prosecution or litigation. Such action seems plausible when, for instance, first ladies or other family members are accompanying heads of state on official visits or are themselves performing an official act in visiting a foreign nation. Yet, there are many instances involving a head of state’s family members in foreign countries that have nothing to do with official business—such as sightseeing, shopping, or studying. In many notable cases involving similar personal business, host nations have accorded a head of state’s family members immunity for the sake of diplomacy, though they often invoke a legal basis like the VCDR.

This Note distinguishes between two types of immunity for a head of state’s family members: absolute immunity ratione personae and qualified immunity ratione materiae. On the one hand, absolute immunity ratione personae covers both private and official acts that a state official commits during his or her term in office. Qualified immunity ratione materiae, on the other hand, covers only those acts that are official and not private. This Note proposes that the international community should limit foreign immunity for a head of state’s family members to qualified immunity ratione materiae. There will often be compelling reasons to allow a head of state’s family member to exit and escape prosecution or litigation for private acts. There is, however, no legal basis for immunity in such cases, and suggesting that there is only serves to dilute head-of-state immunity more generally and wreak havoc in the development of relevant international law.