Worster on the immunity of foreign forces in host states
I recently read this article by William Worster on the immunity of peacekeepers operating without a Status of Forces Agreement – it’s an interesting read, especially the discussion of the general law on the immunity of foreign forces in host States.
Relying on the US case of the Schooner Exchange, Worster writes that when a host State allows a foreign aircraft or ship to enter its territory, immunities can be implied to be granted, due to the host State consenting to the presence of the foreign forces.
What surprised me was that this was also extended to situations where a host State is forced to allow entry of a foreign ship or aircraft (e.g. because it is in a state of emergency) – not an entirely hypothetical situation if you remember the 2001 incident of the US Navy plane that made an emergency landing in China.
A strong tension arises in that scenario, because the foreign State has no choice but to enter the host, given that their vessel is in a state of emergency; and the host State has no choice but to allow entry, as in the case of the US Navy plane it virtually crash-landed. Thus, no consent has been issued to either grant immunity or to enter on terms excluding immunity.
Worster resolves this tension in favour of the foreign State, “where consent to the immunity regime cannot be accepted freely, yet consent to the presence of the foreign organ must be granted, we can conclude that the host State is precluded from denying the usually applicable rules of State immunity.”
This seems to me to be slightly at odds to the general principles underlying immunity and State sovereignty, which emphasise that grants of immunity must be traced back to the consent of the host State, whether that consent is implied or explicit. I don’t quite see why the foreign State can’t be precluded from denying any claim to immunity due to their entry – especially as the “usually applicable rules of State immunity” would indicate that grants of immunity are entirely discretionary.
Perhaps Worster’s view is a more pragmatic interpretation of the law – States probably don’t want to have to be at risk of searches and detention when their vessels are in a state of emergency. And if immunities are all about encouraging comity between nations and easing the interaction between States, then certainly forcing immunity could be understandable.
I also think that this may be another instance where the theory of international law, that immunity is only granted with the consent and at the exceptional discretion of the host State, doesn’t quite reflect the reality of its practice, where immunity for foreign forces can be so easily implied that it virtually is the status quo.
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