State immunity

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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.

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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 2024 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 abuses against state agents where the abuse has occurred in another country.

In 1938, Lord Atkin observed in the House of Lords, the highest court at the time in the United Kingdom, the following:

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] [ dead link ] [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.

Arguments for and against exceptions

Some commentators argue states should not be immune to cases relating to serious human rights abuses. They argue that fundamental human rights such as the right to life and the prohibition against torture should take precedence over rules of state immunity (in technical terms, they constitute norms of jus cogens ). Others point out that state immunity should be the exception that warrants proper justification, without which all states should be subject to liability. [3] [4]

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. They argue a sovereign immunity 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, countries are normally immune from legal proceedings in another state. [5] [ why? ]

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.[ citation needed ]

On 3 February 2012, in the case of Germany v. Italy: Greece intervening, [6] the International Court of Justice ruled by a majority of 12 to 3 that all attempts by domestic courts, forums and tribunals attempting to supranationally apply jus cogens relating to international humanitarian law are overridden by state immunity. The case affirms case law from earlier decisions.[ which? ] The decision was criticized by some[ who? ] commentators for not embracing a nascent movement to waive immunity in cases of human rights violations. Others[ who? ] pointed out that the decision reflected the consensus of actual international custom and practice.

The jurisdiction of the International Criminal Court 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 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, extrajudicial killing, aircraft sabotage, and hostage-taking. [7] 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 could sue Saudi Arabia.

European Convention on State Immunity

The European Convention on State Immunity was signed in Basel 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. [8] 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. [9]

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 October 2024, the Convention has 28 signatories and 24 parties. [10]

See also

Related Research Articles

Personal jurisdiction is a court's jurisdiction over the parties, as determined by the facts in evidence, which bind the parties to a lawsuit, as opposed to subject-matter jurisdiction, which is jurisdiction over the law involved in the suit. Without personal jurisdiction over a party, a court's rulings or decrees cannot be enforced upon that party, except by comity; i.e., to the extent that the sovereign which has jurisdiction over the party allows the court to enforce them upon that party. A court that has personal jurisdiction has both the authority to rule on the law and facts of a suit and the power to enforce its decision upon a party to the suit. In some cases, territorial jurisdiction may also constrain a court's reach, such as preventing hearing of a case concerning events occurring on foreign territory between two citizens of the home jurisdiction. A similar principle is that of standing or locus standi, which is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case.

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Customary international law are international 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 conventions. 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 member states to be among the primary sources of international law.

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The Schooner Exchange v. M'Faddon, 11 U.S. 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 interpreted customary international law to determine that there was no jurisdiction.

<span class="mw-page-title-main">Immunity from prosecution (international law)</span> Doctrine of 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 immunity granted to people who perform certain functions of state. The second is personal immunity, or immunity ratione personae. This is an immunity granted to certain officials because of the office they hold, rather than in relation to the act they have committed.

Saudi Arabia v. Nelson, 507 U.S. 349 (1993), is a United States Supreme Court case in which the Court considered the term "based upon a commercial activity" within the meaning of the first clause of 1605(a)(2) of the Foreign Sovereign Immunities Act of 1976.

<i>Schillinger v. United States</i> 1894 United States Supreme Court case

Schillinger v. United States, 155 U.S. 163 (1894), is a decision of the United States Supreme Court, holding that a suit for patent infringement cannot be entertained against the United States, because patent infringement is a tort and the United States has not waived sovereign immunity for intentional torts.

<span class="mw-page-title-main">Sovereign immunity in the United States</span> Legal protection of federal, state and tribal governments

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<i>Jurisdictional Immunities of the State</i> International Court of Justice decision

Jurisdictional Immunities of the State was a case concerning the extent of state immunity before the International Court of Justice. The case was brought by Germany after various decisions by Italian courts to ignore the state immunity of Germany when confronted with claims against Germany by victims of Nazi-era war crimes. The court found that Italy was wrong to ignore German immunity, and found that Italy was obligated to render the decisions of its courts against Germany without effect.

OBB Personenverkehr AG v. Sachs, 577 U.S. ___ (2015), is a decision by the Supreme Court of the United States, holding that the Foreign Sovereign Immunities Act barred a California resident from bringing suit against an Austrian railroad in federal district court. The case arose after a California resident suffered traumatic personal injuries while attempting to board a train in Innsbruck, Austria. She then filed a lawsuit against the railroad in the United States District Court for the Northern District of California in which she alleged the railroad was responsible for causing her injuries. Because the railroad was owned by the Austrian government, the railroad claimed that the lawsuit should be barred by the Foreign Sovereign Immunities Act, which provides immunity to foreign sovereigns in tort suits filed in the United States. In response, the plaintiff argued that her suit should be permitted under the Foreign Sovereign Immunity Act's commercial activity exception because she purchased her rail ticket in the United States.

Rubin v. Islamic Republic of Iran, 583 U.S. ___ (2018), was a United States Supreme Court case brought against the state of Iran by the families of American victims of the Ben Yehuda Street bombings which occurred in September 1997. Under the Foreign Sovereign Immunities Act of 1976, nations cannot typically be sued unless the state can be proved to have provided support for terrorists or acts of terrorism. After a district judge ruled Iran owed $71.5 million to the families of the victims, the families brought several cases to court in an attempt to attach and execute on assets owned by the state of Iran located in the United States.

Franchise Tax Board of California v. Hyatt, 587 U.S. 230 (2019), was a United States Supreme Court case that determined that unless they consent, states have sovereign immunity from private suits filed against them in the courts of another state. The 5–4 decision overturned precedent set in a 1979 Supreme Court case, Nevada v. Hall. This was the third time that the litigants had presented their case to the Court, as the Court had already ruled on the issue in 2003 and 2016.

Republic of Sudan v. Harrison, 587 U.S. ___ (2019), was a United States Supreme Court case from the October 2018 term. The Court held that civil service of a lawsuit against the government of Sudan was invalid because the civil complaints and summons had been sent to the Embassy of Sudan in Washington, D.C. rather than to the Sudanese Foreign Minister in Khartoum.

Jam v. International Finance Corp., 586 U.S. ___ (2019), was a United States Supreme Court case from the October 2018 term. The Supreme Court ruled that international organizations, such as the World Bank Group's financing arm, the International Finance Corporation, can be sued in US federal courts for conduct arising from their commercial activities. It specifically held that international organizations shared the same sovereign immunity as foreign governments. This was a reversal from existing jurisprudence, which held that international organizations had near-absolute immunity from lawsuits under the Foreign Sovereign Immunities Act and the International Organizations Immunities Act.

<i>Cicippio-Puleo v. Islamic Republic of Iran</i> 2004 US federal appeals court case

Cicippio-Puleo v. Islamic Republic of Iran was a 2004 case in the United States Court of Appeals for the District of Columbia Circuit related to the Foreign Sovereign Immunities Act (FSIA). The DC Circuit Court ruled that while 1996 amendments in FSIA made exceptions from sovereign immunity for states known for supporting state-sponsored terrorism, as listed by the State Department, foreign nations were still immune from private cause of action, preventing lawsuits from private individuals levied at the state based on such terrorism. As a result of this ruling, Congress significantly amended FSIA in 2008 to greatly expand the exceptions from sovereign immunity for state-sponsored terrorism and specifically allowing for causes of actions against foreign countries.

Federal Republic of Germany v. Philipp, 592 U.S. ___ (2021), was a United States Supreme Court case that dealt with the applicability of the Foreign Sovereign Immunities Act (FSIA) for heirs of victims of the Holocaust to sue Germany in the United States court systems for compensation for items that were taken by the Nazi Party during World War II. At issue in the case was whether claims fell within the FSIA's exception to sovereign immunity for “property taken in violation of international law,” 28 U.S.C. §1605(a)(3), given that the sovereign here was alleged to have engaged in a taking of its own nationals’ property; and whether courts can invoke the doctrine of international comity under the FSIA to abstain from exercising jurisdiction based on prudential considerations. In a unanimous opinion by Chief Justice Roberts, the Court held that FSIA does not allow these survivors to sue Germany in U.S. court, as the sale was an act of expropriation of property rather than an act of genocide, though other means of recovery are still potentially available.

References

  1. ↑ Foukona, J. D. "State Immunity: A Vanuatu Perspective".
  2. ↑ The Cristina [1938] AC 485 at 490
  3. ↑ Abraham, Haim (1 December 2019). "Tort Liability for Belligerent Wrongs". Oxford Journal of Legal Studies. 39 (4): 808–833. doi:10.1093/ojls/gqz025. ISSN   0143-6503.
  4. ↑ Abraham, Haim (2024). Tort Liability in Warfare: States' Wrongs and Civilians' Rights. Oxford University Press. ISBN   9780198893356.{{cite book}}: CS1 maint: date and year (link)
  5. ↑ Peter Malanczuk, Michael Barton Akehurst (1997), Akehurst's Modern Introduction to International Law (7th ed.), Routledge, 1997, ISBN   0-415-11120-X, p. 118
  6. ↑ Immunité juridictionelles de l'Etat (Allemagne, Italie, Grèce) Archived 2012-06-02 at the Wayback Machine
  7. ↑ Public Law 110-18
  8. ↑ "Full list". Treaty Office. Retrieved 30 July 2019.
  9. ↑ "United Nations Convention on Jurisdictional Immunities of States and Their Property". Audiovisual Library of International Law. United Nations Office of Legal Affairs. Retrieved 30 July 2019.
  10. ↑ "United Nations Convention on Jurisdictional Immunities of States and Their Property". United Nations Treaty Collection. Retrieved 17 February 2023.
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