A permanent mission (hereinafter "mission") has no legal personality in international law, since it is nothing more than the organ of the accrediting State (sending State) which it represents.
If the alleged litigious act has been performed by a mission or the Head of mission (Ambassador, permanent Representative or someone authorised by the aforementioned) in the name of the mission or the accrediting State, the act is attributed to the accrediting State (sending State).
For example, a contract for the rental lease of a property signed by the Head of mission in the name of the State is considered as binding on the said State, and the latter will be notified through the diplomatic channel of any impending litigation (the competent cantonal authority will contact the Federal Office of Justice which in turn will contact the Federal Department of Foreign Affairs. The DFA will ask the relevant Swiss embassy to notify the country in question about the legal proceedings). The same applies to an employment contract.
The mission will thus not be directly involved in litigation – nor will its members – and the Vienna Convention on Diplomatic Relations of 18 April 1961 (RS 0.191.01), applicable by analogy to permanent missions based in Geneva and their members of personnel, is not relevant.
The problem of immunities (from jurisdiction and execution) concerns the jurisdictional immunity of States.
Immunity from jurisdiction of States
There is no rule in international law that imposes any obligation on the legally competent State to grant absolute immunity from jurisdiction to a foreign State (cf. Müller/Wildhaber, Praxis des Völkerrechts, [The practice of international law], Bern, 1982, p. 299).
Since the beginning of the 20th century, the Federal Supreme Court has consistently favoured a restrictive concept of the immunity of States (Arrêts du Tribunal Fédéral, ATF 44/1918; 56 I 237; 82 I 75; 86 I 23; 104 Ia 43, and more recently ATF 113/1987 Ia 172 c.2).
According to this concept, the principle of the immunity of foreign States is not an absolute rule for general application. On the contrary, a distinction must be made in the case of a State’s acting by virtue of its sovereignty (iure imperii) or according to private law (iure gestionis). The principle of immunity from jurisdiction is applicable only in the first case. In the second case the State can be brought before a Swiss court and, under certain conditions, be subjected to coercive enforcement measures (such as sequestration, seizure, etc.).
Distinction between iure imperii and iure gestionis
In distinguishing between acts of iure imperii (acts of public power) and acts of iure gestionis (acts of administration), the judge must decide on nature of such acts rather than on the basis of their purpose. Within this context, he must determined if the act comes within the competence of public power, or if it approximates an act that any individual might perform (cf. ATF 86 I 29; 110 II 255).
The legal qualification of an act or an activity, its classification either as an act of administration or an act of public power, as well as the determination of its nature is based on case law (lege fori).
Most States subscribe to the restrictive theory of immunity from jurisdiction (cf. Sanchez Rodriguez, Las immunidades de los Estados extranjeros ante los Tribunales espanoles [The immunity of foreign states before Spanish courts], Madrid, 1990; Badr, State immunity, Nijhoff, The Hague, 1984).
The foreign State is summoned through the diplomatic channel, and will be judged by default if it fails to appear. If the foreign State claims immunity, the court must first decide on the question of immunity before considering the matter in hand.
The decision of the court is then communicated to the foreign State through the diplomatic channel.
Litigation in which the mission, representing the State, is the plaintiff
The mission may act on behalf of the State it represents, either through one of its members, or through an attorney or a proxy with the necessary power of attorney.
The State, or the mission on its behalf, may for example lodge a complaint against an increase in rent with the Commission of conciliation for rental leases (Commission de conciliation en matière de baux et loyers), initiate criminal proceedings, etc.
Notification of legal proceedings
If the foreign State elects residence (domicile) near its mission, the mission in question will be notified of legal proceedings (summons, judgement, etc.) by the Swiss Mission (and no longer through the diplomatic channel). If on the other hand, the residence is near a lawyer, the lawyer will be directly notified of proceedings. Finally, if the State does not elect residence, the notification of proceedings will be made through the diplomatic channel.
The foreign State as employer
It is implicit in the foregoing that the principle of the immunity of States cannot prevent a staff member of a mission from taking legal proceedings against the State as his employer, and without necessitating the authorisation of the latter.
Swiss courts have jurisdiction if the work relations between an employee and the State as his employer are not part of the sovereign domain of the foreign State (cf. ATF 110/1984 II 255 ff, affaire S. c. Inde). This would apply for example in the case of an employee whose hiring is clearly a private act and who is not a member of the career personnel of the foreign State.
The Swiss courts are not qualified for cases in which the work relations are covered by the public law of the foreign State (Article 1, par. 1 c of the Law on the Jurisdiction of Industrial Tribunals, Geneva). This is the case for example when an employee has been appointed as a civil servant or a statutory employee in application of the administrative law of the foreign State.
