The doctrine and rules of state immunity concern the protection which a state is given from being sued in the courts of other states. The rules relate to legal proceedings in the courts of another state, not in a state's own courts. The rules developed at a time when it was thought to be an infringement of a state's sovereignty to bring proceedings against it or its officials in a foreign country.
There is now a trend in various states towards substantial exceptions to the rule of immunity; in particular, a state can be sued when the dispute arises from a commercial transaction entered into by a state or some other non-sovereign activity of a state. The United Nations Convention on Jurisdictional Immunities of States and their Property, which is not yet in force, formulates the rules and the exceptions to them. It does not cover criminal proceedings, and it does not allow civil actions for human rights abuses against state agents where the abuse has occurred in another country.
Immunity against civil proceedings for serious human rights abuses
According to some commentators, it is not obvious why states should have immunity in cases relating to serious human rights abuses. The argument is made that fundamental human rights such as the right to life and the prohibition against torture should take precedence over rules of state immunity. The argument goes that these rights have a higher ranking and importance (in lawyer-speak they constitute norms of jus cogens) than a rule of state immunity, and that the recent focus on ending impunity for serious human rights abuses should ensure that the law develops to allow states to be sued.
The argument on the other side is that immunity should be ended, but other ways exist to accomplish this. Ending immunity should not be at the expense of proper conduct of relations between states; one country's perception of abuse may not be another’s; civil actions for a state agent's atrocities should be brought in the courts of that state, not in a foreign court; prosecution of crime lies in the hands of the state, whereas civil proceedings are brought by individuals for their own ends; civil actions brought by disgruntled individuals in one country against another state can have grave political and economic repercussions for both states; and civil proceedings can raise difficult issues of enforcement and extraterritorial jurisdiction. The arguments on both sides reflect different perceptions of how to strike a balance between protection of state interests and protection of the human rights of individuals.
In the International Court of Justice case Jurisdictional Immunities of the State (Germany v. Italy), the court ruled in favor of state immunity. In that case, decided in 2012, the court found that Italy had breached international law by allowing civil cases against Germany for World War II atrocities to proceed, despite Germany's claimed immunity. The decision was criticized by some commentators for not embracing a nascent development to waive immunity in cases of human rights violations. However, others pointed out that the decision reflected the consensus of actual international custom and practice.
European Convention on State Immunity
The European Convention on State Immunity was signed in Basel on May 16, 1972 and is currently in force in 8 countries: Austria, Belgium, Germany, Luxembourg, Netherlands (incl. European Netherlands), Switzerland and the United Kingdom. Five of those (Austria Belgium, Netherlands, Luxembourg and Switzerland) also are parties to its Additional protocol, that establishes the European Tribunal in matters of State Immunity.
United Nations Convention on Jurisdictional Immunities of States and Their Property
The United Nations Convention on Jurisdictional Immunities of States and Their Property was adopted by the General Assembly on 2 December 2004 but is yet to come into force.
The Convention was open for signature by all States until 17 January 2007 and would have entered into force on the thirtieth day following the date of deposit of the thirtieth instrument of ratification, acceptance, approval or accession. As of 7 May 2013, there are 28 signatories to the Convention and 13 instruments of ratification have been deposited. (According to its Article 30, the Convention requires 30 states parties in order to come into force.)
- Based on the May 2005 international law programme from speakers Joanne Foakes and Elizabeth Wilmshurst, Chatham House [dead link]
- Hazel Fox (2008), The Law of State Immunity, Oxford University Press