State immunity
Encyclopedia
The doctrine and rules of state immunity concern the protection which a state
is given from being sued in the court
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
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 2004, 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.
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.
on 2 December 2004. 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 14 June 2010, there are 28 signatories to the Convention and 10 instruments of ratification have been deposited. (According to its Article 30, the Convention requires 30 state parties in order to come into force.)
Sovereign state
A sovereign state, or simply, state, is a state with a defined territory on which it exercises internal and external sovereignty, a permanent population, a government, and the capacity to enter into relations with other sovereign states. It is also normally understood to be a state which is neither...
is given from being sued in the court
Court
A court is a form of tribunal, often a governmental 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 with the rule of law...
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
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
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 2004, 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 rightsHuman rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
abuses. The argument is made that fundamental human rights such as the right to life
Right to life
Right to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being...
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
Impunity
Impunity means "exemption from punishment or loss or escape from fines". In the international law of human rights, it refers to the failure to bring perpetrators of human rights violations to justice and, as such, itself constitutes a denial of the victims' right to justice and redress...
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.
European Convention on State Immunity
The European Convention on State Immunity was signed in Basle on May 16, 1972 and is currently in force in 8 countries.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 AssemblyUnited Nations General Assembly
For two articles dealing with membership in the General Assembly, see:* General Assembly members* General Assembly observersThe United Nations General Assembly is one of the five principal organs of the United Nations and the only one in which all member nations have equal representation...
on 2 December 2004. 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 14 June 2010, there are 28 signatories to the Convention and 10 instruments of ratification have been deposited. (According to its Article 30, the Convention requires 30 state parties in order to come into force.)