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State Immunity under International law: Contemporary Challenges

Basically, a State cannot be sued in the Court of foreign State under International law. Before 20th century, the concept of state immunity was applied without any exceptions. The absolute theory of state immunity was universally accepted. But after the beginning of 20th century, few exceptions were inserted where state immunity could not be invoked. Gradually restrictive theory prevailed over absolute theory and restrictive immunity was accepted by most nations in the world.

States started distinguishing between private and public acts and with prevalence of globalisation, international trade began among different states ever so rapidly. Different States through mutual agreement made an exception that only official acts of the States would be eligible for sovereign immunity and commercial acts and transactions would not be included in the norms of sovereign immunity.

Court of Italy held that in case of any contravention of jus cogens norms, no state immunity will be provided. In cases such as Al-Adsani [1]and Jones[2], the court held that State immunity is unalterable in its stance with regards to civil liability.

Introduction
State immunity is often used by the sovereign states when another state sues them in their own jurisdiction. Since the states are not under any sort of external control. Hence, they cannot be sued on foreign land. State immunity is an important aspect of the international law. So, if anyone wants to sue any foreign state in their own state then they do not have jurisdiction to do that. But if any state is aggrieved from the act of another state then they can knock the doors of International Court of Justice.

For Example, when India felt aggrieved by the action of Pakistan in Kulbhushan Jadhav case then rather than suing them in their own jurisdiction they filed the petition on International Court of Justice. Even if India would have filed the case in Indian Supreme Court against Pakistan then also there could not have been done anything due to the phenomenon of State Immunity in international law.

But before understanding the detailed aspect of state immunity, it is important to understand its definition. State immunity is based on the theory that states have no right to question the act of another state according their own national laws. It is assumed that the sovereignty of each state is equal and hence no state can sue another state as per their national laws in their municipal courts.

Understanding State Immunity

State Immunity is basically related to the sovereign equality of states and bar states to sue each other in their respective municipal courts. It is important to build the healthy relationship among the states and promotes world harmony. However, International Court of Justice is established in order to overcome any dispute between the nations. The concept of State Immunity is based on "Par in Parem Non Habet Imperium" which means that equals have no power against each other.

There are two ways to protect a State:
  1. Immunity form Suit:
    It is considered inappropriate that Court of one state takes action against another state as per their own laws. To prevent this, state is given immunity to get sued in another state's jurisdiction for their actions. But if the state immunity can be waived by the state as per their choice.
     
  2. Immunity from Execution:
    States also get immunity which prevents other states from confiscating their property so as to satisfy the demands of another state's creditors or court's judgement etc. In case of Schooner Exchange vs McFadden, the court said regarding Sovereignty that, a state has absolute jurisdiction within its territory and this immunity can be waived by the state as per situation. This judgement was held in 1812 and after that many countries of European continents along with United States recognized the concept of State Immunity.

National City Bank of New York vs Republic of China [3]

Facts:
  • National Bank was sued by Republic of China for the recovery of $200,000 under section 25(b) of the Federal Reserve Act. This amount was deposited in National Bank in 1948.
  • Further, the National Bank imposed a counter claim on default of $1,634,432 treasury notes of Republic of China in the Federal District Court.
  • China Pleaded for State Immunity under International law against the counter claim of National Bank.
  • In the Federal District Court, the counterclaim of National Bank was dismissed and China was recognized as the Sovereign state. Later, the Supreme Court of US, granted the writ of Certiorari and it was held that Republic of China is not immune from the judgement of Federal District Court of USA.

Court's Decision:
  • Republic of China's decision to sue National Bank in USA waived its state immunity and Republic cannot claim it.
  • Also, the counterclaim bought by the National Bank was held valid and resulting in the elimination of the state immunity enjoyed by the Republic of China.
  • Hence it can be concluded that the state immunity can be rejected on mere ground that China sued the National Bank in United States Court.

Act of State and Sovereign Immunity

Both these terms are important to understand before comparing between them. An act of state can be defined as imposing of national decisions upon its people and property. Generally, the decisions are enforced through any law, such law is an act of state. But these laws are ineffective in another state because each state is sovereign and protects its territory by its own laws. Thus, it can be concluded that the act of state has extraterritorial jurisdiction. One state is not responsible for the protection of rights of the citizen of another state unless there is an agreement between such states. The US Supreme Court said that the act of state and sovereign immunity are two different phenomenon with common origin and close interdependence.

The Private-Public Distinction

State immunity basically shields the state from getting sued in the foreign state unless there is an international custom which permits otherwise. There was a time when state enjoyed sovereign immunity without any restrictions. But over the period of time, it is changed and there are some restrictions in the way of enjoying the complete state immunity.

When the state enjoys sovereign immunity without any limitation then it is termed as absolute immunity and when the state enjoys sovereign immunity with some limitations then it is termed restrictive immunity. When the state acts in accordance with their official duties then they enjoy immunity and when they perform some act on personal capacity or act as a private person then they are not immune from jurisdiction of another state. From the aforementioned statement, the concept of state's conduct is clear and accordingly the immunity is enjoyed by them.

The shift from absolute to restrictive immunity happened over considerable period of time. In 1957, Belgian Court was the first court to recognize that the private acts of the state are not the part of the sovereign immunity and this decision came way back in 1857. The Italian Court adopted the private act exception in the year 1890. However, since then the world has changed with respect to restrictive immunity.

But the distinction between the private and public act is still not clear. Disagreement among the states starts regarding the relevant test for the determination of character of the act as public or private. Whether the purpose of the act should be looked or the nature. The state's conduct is usually determined by the nature of the act but if other state often applies purpose test to determine the character of the act or if the state agrees to apply it then purpose test will be applied.

Now it is very much clear that state started to accept restrictive theory over absolute theory gradually over the period of time. But even when they have started to accept the restrictive theory, its interpretation is different for different states. The parameters that are set for distinguishing the public act from private act also vary from state to state. In what context, the distinction between private and public act should be applied and should it be limited to the commercial and transactional matters or it should include other things as well, is a matter of discussion.

Tort Exception

If any tortious act is committed by any state against any other state then state immunity must be denied. European Convention on State Immunity[4] (ECSI) and United Nations Convention on Jurisdictional Immunities of States[5] (UNCJIS) includes such obligations. But many states differ with this exception.

If we say that State immunity is the default rule and if there is any exception it should reflect customary international law. Tort exception has not evolved into custom yet then the countries such Canada, USA, Australia, United Kingdom etc. that have included tort exception in their state immunity laws are in contravention with the international laws.

Human Rights, State Immunity and Jus Cogens [6]

Protection of fundamental human rights such as torture, crimes against humanity etc. comes under jus cogens but state immunity, which is not evolved as custom yet is considered under ordinary international law. When the human rights of the individuals are violated in any foreign state then claiming sovereign immunity by such state should not be permitted. The jus cogens focuses on the basic values of the international community and it is accepted universally.

But determination of which norms come under the purview of jus cogens and which do not form the part of it, is still debatable. If we try to understand the concept of jus cogens then we will find that the rules that are basic to the functioning of international legal system are part of it. For Example, sovereign equality and pacta sunt servanda[7], independence of states etc. are part of jus cogens.

But the norms such as sovereign equality and independence of states are major element of state immunity hence it is difficult to eliminate the state immunity from ambit of jus cogens. Thus, even if state immunity is recognized as the ordinary international law but its core elements are part of the jus cogens. Hence violation of fundamental human rights and grant of state immunity is conflicting. The conflict between fundamental human rights and state immunity is conflict of ideologies and not the conflict of norms.

Moreover, the legal consequences of the violation of fundamental human rights and violation of state immunity are different. Recognition of certain rules and its enforcement under international law are two different things. Due to absence of enforcement agency in international legal system, relationship between violation of fundamental human rights and grant of state immunity is even more conflicting. Hence it can easily be concluded that presence of any norm is completely unrelated to its enforcement. This remains stand for both customary as well as ordinary international law.

If there is any norm under jus cogen then limiting its enforcement by any other norm may make the later norm invalid. But the chances of implementation are very less. Fundamental human rights is a norm under jus cogen and can it be limited for an ordinary international law like state immunity. However, those scholars who argue that there must be fundamental human rights exception to the state immunity should be aware of the fact that there is neither any case law nor such state practice that state immunity should be in compliance with the norms of jus cogen.

Sovereign Immunity: A Principal

Sovereign Immunity, explained in different literature and jurisprudence from time to time, as principle of international law. The term Principle is often used in place of Rule with certain exceptions. There is no clear cut difference between principles and rules. But the argument which is accepted is that rules are much more specific than principles

If the level of generality is high then it is termed as principle. Since rules are more specific so any deviation from them is not allowed on the other hand principles are wider and they can be interpreted in more than one way and hence some deviation is not prohibited. Hence a principle has a broader scope. If one rule mandates the use of some norm and second rule prohibits the use of same norm then the exception may be inserted in the first rule.

If the exception is not inserted then the conflict may be resolved with help of legal maxim lex posterior (legal rule arising after the conflicting rule) or lex specialis (more specific rule will prevail over more general rule). In case of principles, the use of one principle over another is very common and this does not make the other principle invalid. But in case of rules, if the emphasis is given to one rule over another then it may be the case that the other rule is invalid.

If the treaty or custom do not resolve the conflict then the principles are used to resolve such conflict. Hence it only serves as a back-up in case there is absence of any custom or treaty in international law.

Most of the states accept the concept of State Immunity and it is applied as something which is legally binding in nature under international law. Each state understands the concept of state immunity in their own way. But now there is gradual change from absolute immunity to restrictive immunity.

States which are adopting the restrictive theory are also distinguishing between private and public acts of states based on different norms. If we consider the state immunity as a rule then those states, which are applying the state immunity with tort exception and it not being part of the customary international law, are actually violating the international law.

But if we consider state immunity as the principle then it includes broader spectrum and hence states could make distinction between public and private acts as per their own norms even if such norms are not part of the customary international law. Hence state immu8nity is considered as a Principle and not a rule.

Presently, the international law focuses more on sovereign equality than independence of state and the norms which distinguish the public and private acts are also interpreted by states as per their choice. It is favourable to accept state immunity as principle due to the current practice in international community.

Conclusion
Earlier when the States were in favour of absolute immunity then the crimes committed by the officials were not punishable. They were under the ambit of state immunity. Later with the introduction of restrictive immunity, certain norms such as tortious act, human rights violation, commercial and transactional matters were made exceptions under state immunity. Even today, if officials commit any crime then they try to take the defence under state immunity. Presently, the state immunity is not given for criminal offences but for civil offences it is given. State immunity should also be restricted in cases when the civil wrong is committed.

The present concept of restrictive theory should not be restricted to few exceptions but it should include those norms as exceptions, violation of which is not acceptable globally. In States, where the common law is followed, the concept of state immunity developed only through the case laws but in civil law nations, the case laws are not binding. From the beginning of the 20th century, there was considerable rise in the communist states and this was also one of the reasons why there was some need to restrict the state immunity. Since there was no remedy available in international law, in case there was any dispute arising out of trading activities, tortious act or gross human rights violations.

Restricting the doctrine of state immunity was needed. During the time of Second World War there was complete human rights violations and if the officials of such states were given the privileges of state immunity then it would have been great injustice to the victims. Therefore, it was necessary to insert few exceptions in defence of state immunity.

References:
  1. Lee M Caplan, State Immunity, Human Rights and Jus Cogens: A Critique of the Normative Hierarchy Theory, 97 Am. J. Int. Law (2003)
  2. Curtis A. Bradley, Foreign Officials and Sovereign Immunity in U.S. Courts, 13 (3) ASIL (2009).
  3. Malcolm N. Shaw, International Law, 5 th ed., 2003
  4. Robert L. Jackson, International Law Favors 'Sovereign Immunity' for Plane Experts say (Apr. 4, 2001) (http: articles.latimes.com/2001/apr/04/news/mn-46596)
  5. European Convention on State Immunity, May 16, 1972
  6. Johannes van Aggelen, Nowhere to Hide: Defeat of the Sovereign Immunity Defense for Crimes of Genocide and the Trials of Slobodan Milosevic and Saddam Hussein, 5 (1) Chin. J. Int. Law (2006)
  7. Kerstin Bartsch, Bjorn Elberling, Jus Cogens vs. State Immunity, Round Two: The Decision of the European Court of Human Rights in the Kalogeropoulou et al. v. Greece and Germany Decision, 04(05) GLJ (2003)
  8. Stacy Humes-Schulz, Limiting Sovereign Immunity in the Age of Human Rights, 21 Harv. Hum. Rts. J. 105, 106 (2008)
  9. Burkhard Heb, The International Law Commission's Draft Convention on the Jurisdictional Immunities of States and Their Property, 4 EJIL (1993)
  10. Markus Rau, State Liability for Violations of International Humanitarian Law - The Distomo Case Before the German Federal Constitutional Court, 07(07) GLJ (2006)
  11. European Convention on Human Rights, Nov. 04, 1950, ETS No. 005
  12. Al-Adsani v United Kingdom, Merits, App No 35763/97
  13. Jones v United Kingdom
  14. 208 F.2d 627 (2d Cir. 1953)
  15. European Convention on State Immunity - Basle, 16.V.1972
  16. A/RES/59/38
  17. compelling law
  18. agreements must be kept

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