The doctrine and rules of state immunity concern the protection which a
state
State may refer to:
Arts, entertainment, and media Literature
* ''State Magazine'', a monthly magazine published by the U.S. Department of State
* ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States
* ''Our S ...
is given from being sued in the
court
A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance ...
s 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
Sovereignty is the defining authority within individual consciousness, social construct, or territory. Sovereignty entails hierarchy within the state, as well as external autonomy for states. In any state, sovereignty is assigned to the perso ...
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 as of 2015 is not yet in force, would re-formulate and harmonise the rules and their exceptions. It does not cover criminal proceedings and it does not allow civil (e.g. financial) actions for
human rights abuse
Human rights are moral principles or normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for certain standards of hum ...
s against state agents where the abuse has occurred in another country.
Lord Atkin
James Richard Atkin, Baron Atkin, (28 November 1867 – 25 June 1944), commonly known as Dick Atkin, was an Australian-born British judge, who served as a lord of appeal in ordinary from 1928 until his death in 1944. He is especially remembere ...
(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.
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.
Arguments for and against exceptions
Some commentators argue states should not be immune to cases relating to serious
human rights
Human rights are Morality, moral principles or Social norm, normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for ce ...
abuses. They argue that fundamental human rights such as the
right to life
The right to life is the belief that a being has the right to live and, in particular, should not be killed by another entity. The concept of a right to life arises in debates on issues including capital punishment, with some people seeing it as ...
and the prohibition against torture should take precedence over rules of state immunity (in technical terms, they constitute norms of ''
jus cogens
Jus may refer to:
Law
* Jus (law), the Latin word for law or right
* Jus (canon law), a rule within the Roman Catholic Church
People
* Juš Kozak (1892–1964), Slovenian writer
* Juš Milčinski, Slovenian theatre improviser
* Justin Jus Obo ...
''). Others point out that state immunity should be the exception that warrants proper justification, without which state should be subject to liability.
Opponents of this type of exception point out that 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
Extraterritorial jurisdiction (ETJ) is the legal ability of a government to exercise authority beyond its normal boundaries.
Any authority can claim ETJ over any external territory they wish. However, for the claim to be effective in the externa ...
. They argue a
sovereign immunity
Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. A similar, stronger ...
exception should be made in each country's domestic law, so that country's definition of abuse, standard of proof, and rules of evidence apply.
In practice
Under
customary international law
Customary international law is an aspect of international law involving the principle of custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its ...
, countries are normally immune from legal proceedings in another state.
Sovereign immunity is sometimes available to countries in international courts and international arbitration; 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, in the case of
''Germany v. Italy: Greece intervening'', the
International Court of Justice
The International Court of Justice (ICJ; french: Cour internationale de justice, links=no; ), sometimes known as the World Court, is one of the six principal organs of the United Nations (UN). It settles disputes between states in accordanc ...
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
Jus may refer to:
Law
* Jus (law), the Latin word for law or right
* Jus (canon law), a rule within the Roman Catholic Church
People
* Juš Kozak (1892–1964), Slovenian writer
* Juš Milčinski, Slovenian theatre improviser
* Justin Jus Obo ...
'' relating to
international humanitarian law
International humanitarian law (IHL), also referred to as the laws of armed conflict, is the law that regulates the conduct of war (''jus in bello''). It is a branch of international law that seeks to limit the effects of armed conflict by prot ...
are overridden by state immunity. The case affirms case law from earlier decisions. 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.
The jurisdiction of the
International Criminal Court
The International Criminal Court (ICC or ICCt) is an intergovernmental organization and international tribunal seated in The Hague, Netherlands. It is the first and only permanent international court with jurisdiction to prosecute individuals ...
extends to current heads of state and government of states that are members of the court. Though cases might include acts that leaders take in their official capacities (such as ordering the country's military to commit genocide), they are prosecuted against individuals rather than the country's government as a whole.
United States
The 1812 U.S. Supreme Court decision ''
The Schooner Exchange v. M'Faddon
''The Schooner Exchange v. M'Faddon'', 11 U.S. (7 Cranch) 116 (1812), is a United States Supreme Court case on the jurisdiction of federal courts over a claim against a friendly foreign military vessel visiting an American port. The court interpre ...
'' interpreted customary international law to bar a ship owner from suing to regain a vessel seized by the government of France, which had docked for repairs in Philadelphia.
The 1976
Foreign Sovereign Immunities Act
The Foreign Sovereign Immunities Act of 1976 (FSIA) is a United States law, codified at Title 28, §§ 1330, 1332, 1391(f), 1441(d), and 1602–1611 of the United States Code, that established criteria as to whether a foreign sovereign nation ( ...
generally bars suits against foreign governments, except in cases where state immunity is waived; certain
admiralty
Admiralty most often refers to:
*Admiralty, Hong Kong
*Admiralty (United Kingdom), military department in command of the Royal Navy from 1707 to 1964
*The rank of admiral
*Admiralty law
Admiralty can also refer to:
Buildings
* Admiralty, Traf ...
claims; or the suit involves commercial activity, a tort inside the United States (such as a traffic accident), or expropriation of property in violation of international law. Section 221 of the
Antiterrorism and Effective Death Penalty Act of 1996
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), , was introduced to the United States Congress in April 1995 as a Senate Bill (). The bill was passed with broad bipartisan support by Congress in response to the bombings of th ...
added an exception for U.S. victims of terrorism, for any government designated by the State Department as
state sponsor of terrorism
State-sponsored terrorism is terrorist violence carried out with the active support of national governments provided to violent non-state actors. States can sponsor terrorist groups in several ways, including but not limited to funding terrorist ...
. The
National Defense Authorization Act for Fiscal Year 2008 The National Defense Authorization Act for Fiscal Year 2008 is a law in the United States signed by President George W. Bush on January 28, 2008. As a bill it was H.R. 4986 in the 110th Congress. The overall purpose of the law is to authorize fundin ...
added exceptions for
torture
Torture is the deliberate infliction of severe pain or suffering on a person for reasons such as punishment, extracting a confession, interrogation for information, or intimidating third parties. Some definitions are restricted to acts c ...
,
extrajudicial killing
An extrajudicial killing (also known as extrajudicial execution or extralegal killing) is the deliberate killing of a person without the lawful authority granted by a judicial proceeding. It typically refers to government authorities, whether ...
,
aircraft sabotage
An aircraft is a vehicle that is able to fly by gaining support from the air. It counters the force of gravity by using either static lift or by using the dynamic lift of an airfoil, or in a few cases the downward thrust from jet engines. ...
, and
hostage-taking
A hostage is a person seized by an abductor in order to compel another party, one which places a high value on the liberty, well-being and safety of the person seized, such as a relative, employer, law enforcement or government to act, or r ...
. In 2016, the
Justice Against Sponsors of Terrorism Act
The Justice Against Sponsors of Terrorism Act (JASTA) () is a law enacted by the United States Congress that narrows the scope of the legal doctrine of foreign sovereign immunity. It amends the Foreign Sovereign Immunities Act and the Anti-Ter ...
removed the requirement that a state sponsor of terrorism be officially listed, so that victim families of the
September 11 attacks
The September 11 attacks, commonly known as 9/11, were four coordinated suicide terrorist attacks carried out by al-Qaeda against the United States on Tuesday, September 11, 2001. That morning, nineteen terrorists hijacked four commercia ...
could sue Saudi Arabia.
European Convention on State Immunity
The European Convention on State Immunity was signed in
Basel
, french: link=no, Bâlois(e), it, Basilese
, neighboring_municipalities= Allschwil (BL), Hégenheim (FR-68), Binningen (BL), Birsfelden (BL), Bottmingen (BL), Huningue (FR-68), Münchenstein (BL), Muttenz (BL), Reinach (BL), Riehen (BS ...
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. 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
A general assembly or general meeting is a meeting of all the members of an organization or shareholders of a company.
Specific examples of general assembly include:
Churches
* General Assembly (presbyterian church), the highest court of presby ...
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.
See also
*
Immunity from prosecution (international law)
Immunity from prosecution is a doctrine of international law that allows an accused to avoid prosecution for criminal offences. Immunities are of two types. The first is functional immunity, or immunity '' ratione materiae''. This is an immunit ...
*
Foreign Sovereign Immunities Act
The Foreign Sovereign Immunities Act of 1976 (FSIA) is a United States law, codified at Title 28, §§ 1330, 1332, 1391(f), 1441(d), and 1602–1611 of the United States Code, that established criteria as to whether a foreign sovereign nation ( ...
(United States)
*
Extraterritorial jurisdiction
Extraterritorial jurisdiction (ETJ) is the legal ability of a government to exercise authority beyond its normal boundaries.
Any authority can claim ETJ over any external territory they wish. However, for the claim to be effective in the externa ...
References
*Based on the May 2005 international law programme from speakers Joanne Foakes and Elizabeth Wilmshurst,
Chatham House
Chatham House, also known as the Royal Institute of International Affairs, is an independent policy institute headquartered in London. Its stated mission is to provide commentary on world events and offer solutions to global challenges. It is ...
br>
*
External links
Text of European Convention on State ImmunityText of United Nations Convention on Jurisdictional Immunities of States and Their Property
{{Authority control
International law
Legal immunity