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State immunity

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Not to be confused with the doctrine of sovereign immunity, whereby the government of a state may not be amenable before its own courts.

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, re-formulates and harmonises the rules and their exceptions. It does not cover criminal proceedings and it does not allow civil (e.g. financial) actions for human rights abuses against state agents where the abuse has occurred in another country.

Lord Atkin (d.1944) observed in the highest UK court in 1938:

The courts of a country will not impede a foreign sovereign, that is, they will not by their process make him against his will a party to legal proceedings whether the proceedings involve process against his person or seek to recover from him specific property or damages.[1][2]

The rule's wider implication is that a state and any sovereign, unless it chooses to waive its immunity, is immune to the jurisdiction of foreign courts and the enforcement of court orders. So jealously guarded is the law, traditionally the assertion of any such jurisdiction is considered impossible without the foreign power's consent.

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 technical terms, 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; its standard of proof and rules of evidence may also fall short of another's. Civil actions for a state agent's atrocities should be brought in the courts of that state, not in a foreign domestic court; prosecution of crime is rooted in the idea of consent or consensus to that state or body, 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.

A restatement of the above sections couched in international law terms, under customary international law, countries are normally immune from legal proceedings in another state.[3] The US has recognized this rule under the 1976 Foreign Sovereign Immunities Act.

Sovereign immunity is sometimes available to countries in international courts and arbitrations; principally not however if acting more as contracting bodies (e.g. making agreements with regard to extracting oil and selling it) nor in boundaries matters.

On 3 February 2012, the International Court of Justice ruled by a majority of 12 to 3 (12-3) that all attempts by domestic courts, forums and tribunals attempting to supranationally apply jus cogens relating to international humanitarian law are overriden by the immunity in Germany v. Italy: Greece intervening.[4] The case forms case law strongly rooted in earlier decisions and so has not been overturned. The decision was criticized by some commentators for not embracing a nascent movement to waive immunity in cases of human rights violations. 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 (for the European Netherlands), Switzerland and the United Kingdom.[5] 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 may enter into force on the thirtieth day following the date of deposit of the thirtieth instrument of ratification, acceptance, approval or accession. As of 30 September 2015, there are 28 signatories to the Convention and 20 instruments of ratification have been deposited.[6]

See also

References

  1. ^ Foukona, J.D. "State Immunity: A Vanuatu Perspective".
  2. ^ The Cristina [1938] AC 485 at 490
  3. ^ Akehurst's modern introduction to international law, by Peter Malanczuk, Michael Barton Akehurst, Routledge 7th ed., 1997, ISBN 0-415-11120-X, Page 118
  4. ^ Immunité juridictionelles de l'Etat (Allemagne, Italie, Grèce) Archived 2012-06-02 at the Wayback Machine
  5. ^ http://conventions.coe.int/treaty/Commun/ChercheSig.asp?NT=074&CM=0&DF=&CL=ENG
  6. ^ http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=III-13&Chapter=3&lang=en
  • Based on the May 2005 international law programme from speakers Joanne Foakes and Elizabeth Wilmshurst, Chatham House [1]
  • Hazel Fox (2008), The Law of State Immunity, Oxford University Press
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