736
i n t e r nat i o na l l aw
The situation of immunity before domestic courts is more complex.
209
First, the question of the determination of the status of head of state be-
fore domestic courts is primarily a matter for the domestic order of the
individual concerned. In
Republic of the Philippines
v.
Marcos
(
No. 1
),
210
for example, the US Court of Appeals for the Second Circuit held that
the Marcoses, the deposed leader of the Philippines and his wife, were
not entitled to claim sovereign immunity. In a further decision, the Court
of Appeals for the Fourth Circuit held in
In re Grand Jury Proceedings,
Doe No. 770
211
that head of state immunity was primarily an attribute of
state sovereignty, not an individual right, and that accordingly full effect
should be given to the revocation by the Philippines government of the
immunity of the Marcoses.
212
Also relevant would be the attitude adopted
by the executive in the state in which the case is being brought. In
US
v.
Noriega
,
213
the District Court noted that head of state immunity was
grounded in customary international law, but in order to assert such im-
munity, a government official must be recognised as head of state and
this had not happened with regard to General Noriega.
214
This was con-
firmed by the Court of Appeals for the Eleventh Circuit, who noted that
the judiciary deferred to the executive in matters concerning jurisdiction
over foreign sovereigns and their instrumentalities, and, in the Noriega
situation, the executive had demonstrated the view that he should not
be granted head of state status. This was coupled with the fact that he
had never served as constitutional ruler of Panama and that state had
not sought immunity for him; further the charges related to his private
enrichment.
215
In
First American Corporation
v.
Al-Nahyan
, the District
Court noted that the Foreign Sovereign Immunities Act did not affect the
right of the US government to file a Suggestion of Immunity asserting
209
See e.g. the observations submitted by the UK government to the European Court of
Human Rights concerning
Association SOS Attentats
v.
France
, regarding the immunity
of President Gaddafi of Libya in criminal and civil proceedings in France, UKMIL, 77
BYIL, 2006, pp. 735 ff.
210
806 F.2d 344 (1986); 81 ILR, p. 581. See also e.g.
Re Honecker
80 ILR, p. 365.
211
817 F.2d 1108 (1987); 81 ILR, p. 599.
212
See also
Doe
v.
United States of America
860 F.2d 40 (1988); 121 ILR, p. 567.
213
746 F.Supp. 1506, 1519 (1990); 99 ILR, pp. 143, 161.
214
See also Watts, ‘Legal Position’, pp. 52 ff. See also H. Fox, ‘The Resolution of the Institute
of International Law on the Immunities of Heads of State and Government’, 51 ICLQ,
2002, p. 119.
215
117 F.3d 1206 (1997); 121 ILR, p. 591. See also
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