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The doctrine and rules of state immunity concern the protection which a
state State most commonly refers to: * State (polity), a centralized political organization that regulates law and society within a territory **Sovereign state, a sovereign polity in international law, commonly referred to as a country **Nation state, a ...
is given from being sued in the
court A court is an institution, often a government entity, with the authority to adjudicate legal disputes between Party (law), parties and Administration of justice, administer justice in Civil law (common law), civil, Criminal law, criminal, an ...
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 can generally be defined as supreme authority. Sovereignty entails hierarchy within a state as well as external autonomy for states. In any state, sovereignty is assigned to the person, body or institution that has the ultimate au ...
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, 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 universally recognized moral principles or norms that establish standards of human behavior and are often protected by both national and international laws. These rights are considered inherent and inalienable, meaning t ...
s against state agents where the abuse has occurred in another country. In 1938, Lord Atkin observed in the
House of Lords The House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...
, the highest court at the time in the
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Northwestern Europe, off the coast of European mainland, the continental mainland. It comprises England, Scotlan ...
, the following: 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 universally recognized Morality, moral principles or Social norm, norms that establish standards of human behavior and are often protected by both Municipal law, national and international laws. These rights are considered ...
abuses. They argue that fundamental human rights such as the
right to life The right to life is the belief that a human (or other animal) 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 ...
and the prohibition against torture should take precedence over rules of state immunity (in technical terms, they constitute norms of ''
jus cogens Jus or JUS may refer to: Language * Jussive mood, in grammar * Yus, two early Cyrillic letters * Jumla Sign Language, of Nepal (ISO 639-3:jus) Law * Jus (law), a right afforded to ancient Romans * Jus (canon law), a Roman Catholic custo ...
''). Others point out that state immunity should be the exception that warrants proper justification, without which all states 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 external ...
. They argue a
sovereign immunity Sovereign immunity, or crown immunity, is a legal doctrine whereby a monarch, sovereign or State (polity), state cannot commit a legal wrong and is immune from lawsuit, civil suit or criminal law, criminal prosecution, strictly speaking in mode ...
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 consists of international legal obligations arising from established or usual international practices, which are less formal customary expectations of behavior often unwritten as opposed to formal written treaties or c ...
, 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; , CIJ), or colloquially the World Court, is the only international court that Adjudication, adjudicates general disputes between nations, and gives advisory opinions on International law, internation ...
ruled by a majority of 12 to 3 that all attempts by domestic courts, forums and tribunals attempting to supranationally apply ''
jus cogens Jus or JUS may refer to: Language * Jussive mood, in grammar * Yus, two early Cyrillic letters * Jumla Sign Language, of Nepal (ISO 639-3:jus) Law * Jus (law), a right afforded to ancient Romans * Jus (canon law), a Roman Catholic custo ...
'' relating to
international humanitarian law International humanitarian law (IHL), also referred to as the laws of armed conflict or the laws of war, is the law that regulates the conduct of war (''wikt:jus in bello, jus in bello''). It is a branch of international law that seeks to limit ...
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) is an intergovernmental organization and International court, international tribunal seated in The Hague, Netherlands. It is the first and only permanent international court with jurisdiction to prosecute ...
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'' 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 generally bars suits against foreign governments, except in cases where state immunity is waived; in certain admiralty claims; or in claims involving commercial activity, a tort inside the United States involving death, personal injury, or damage to or loss of property (such as a traffic collision), 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 a state sponsor of terrorism. The National Defense Authorization Act for Fiscal Year 2008 added exceptions for
torture Torture is the deliberate infliction of severe pain or suffering on a person for reasons including corporal punishment, punishment, forced confession, extracting a confession, interrogational torture, interrogation for information, or intimid ...
,
extrajudicial killing An extrajudicial killing (also known as an extrajudicial execution or an extralegal killing) is the deliberate killing of a person without the lawful authority granted by a judicial proceeding. It typically refers to government authorities, ...
, aircraft sabotage, and hostage-taking. In 2016, the Justice Against Sponsors of Terrorism Act 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, also known as 9/11, were four coordinated Islamist terrorist suicide attacks by al-Qaeda against the United States in 2001. Nineteen terrorists hijacked four commercial airliners, crashing the first two into ...
could sue Saudi Arabia.


European Convention on State Immunity

The European Convention on State Immunity was signed in
Basel Basel ( ; ), also known as Basle ( ), ; ; ; . is a city in northwestern Switzerland on the river Rhine (at the transition from the High Rhine, High to the Upper Rhine). Basel is Switzerland's List of cities in Switzerland, third-most-populo ...
on 16 May 1972 and is currently in force in eight countries: Austria, Belgium, Cyprus, Germany, Luxembourg, Netherlands (for the European Netherlands), Switzerland, and the United Kingdom. Six of those (Austria, Belgium, Cyprus, 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. the Convention has 28 signatories and 24 parties.


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 immuni ...
* Foreign Sovereign Immunities Act (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 external ...


References

*Based on the May 2005 international law programme from speakers Joanne Foakes and Elizabeth Wilmshurst,
Chatham House The Royal Institute of International Affairs, also known as Chatham House, is a British think tank based in London, England. Its stated mission is "to help governments and societies build a sustainably secure, prosperous, and just world". It ...
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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