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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.

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^[update] 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,^[update] the Convention has 28 signatories and 24 parties.^[10]

References

^ Foukona, J. D. "State Immunity: A Vanuatu Perspective".
^ The Cristina [1938] AC 485 at 490
^ 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.
^ 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)
^ Peter Malanczuk, Michael Barton Akehurst (1997), Akehurst's Modern Introduction to International Law (7th ed.), Routledge, 1997, ISBN 0-415-11120-X, p. 118
^ Immunité juridictionelles de l'Etat (Allemagne, Italie, Grèce) Archived 2012-06-02 at the Wayback Machine
^ Public Law 110-18
^ "Full list". Treaty Office. Retrieved 30 July 2019.
^ "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.
^ "United Nations Convention on Jurisdictional Immunities of States and Their Property". United Nations Treaty Collection. Retrieved 17 February 2023.

Based on the May 2005 international law programme from speakers Joanne Foakes and Elizabeth Wilmshurst, Chatham House [1]
Hazel Fox (2008), The Law of State Immunity, Oxford University Press

External links

[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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@@ Line 1: / Line 1: @@
+{{Short description|Legal doctrine}}
-{{distinguish2|the doctrine of [[sovereign immunity]], whereby the government of a state may not be amenable before its own courts}}
+{{Use dmy dates|date=February 2023}}
+{{Distinguish|text=the doctrine of [[sovereign immunity]], whereby the government of a state may not be amenable before its own courts}}
 The doctrine and rules of '''state immunity''' concern the protection which a [[sovereign state|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, 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 abuse]]s against state agents where the abuse has occurred in another 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|2024|lc=y}} 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]]s against state agents where the abuse has occurred in another country.
+In 1938, [[James Atkin, Baron Atkin|Lord Atkin]] observed in the [[House of Lords]], the highest court at the time in the [[United Kingdom]], the following:
-==Immunity against civil proceedings for serious human rights abuses==
-According to some commentators, it is not obvious why states should have [[wikt:immunity|immunity]] in cases relating to serious [[human rights]] 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.
+{{quote|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.<ref>{{Cite web|url=https://www.usp.ac.fj/index.php?id=13176|title=State Immunity: A Vanuatu Perspective|last=Foukona|first=J. D.|date=|website=|publisher=|access-date=}}</ref>{{dead link|date=February 2023}}<ref>''The Cristina'' [1938] [[Law Reports|AC]] 485 at 490</ref>}}
-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.
+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.
-In the [[International Court of Justice]] case ''[[Jurisdictional Immunities of the State (Germany v. Italy)]],'' the court ruled in favor of state immunity.  In that case, decided in 2012, the court found that Italy had breached international law by allowing civil cases against Germany for World War II atrocities to proceed, despite Germany's claimed immunity.  The decision was criticized by some commentators for not embracing a nascent development to waive immunity in cases of human rights violations.  However, others pointed out that the decision reflected the consensus of actual international custom and practice.
+==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.<ref>{{Cite journal|last=Abraham|first=Haim|date=2019-12-01|title=Tort Liability for Belligerent Wrongs|url=https://academic.oup.com/ojls/article/39/4/808/5536343|journal=Oxford Journal of Legal Studies|language=en|volume=39|issue=4|pages=808–833|doi=10.1093/ojls/gqz025|issn=0143-6503}}</ref><ref>{{Cite book |last=Abraham |first=Haim |url=https://academic.oup.com/book/58871 |title=Tort Liability in Warfare: States' Wrongs and Civilians' Rights |date=2024 |publisher=Oxford University Press |year=2024 |isbn=9780198893356}}</ref>
+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.<ref>Peter Malanczuk, Michael Barton Akehurst (1997), ''Akehurst's Modern Introduction to International Law'' (7th ed.), Routledge, 1997, {{ISBN|0-415-11120-X}}, p. 118</ref>{{why|date=October 2024}}
+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|date=October 2019}}
+On 3 February 2012, in the case of [[Jurisdictional Immunities of the State (Germany v. Italy)|''Germany v. Italy: Greece intervening'']],<ref>[http://www.icj-cij.org/docket/files/143/16884.pdf Immunité juridictionelles de l'Etat (Allemagne, Italie, Grèce)] {{webarchive|url=https://web.archive.org/web/20120602202330/http://www.icj-cij.org/docket/files/143/16884.pdf |date=2012-06-02 }}</ref> 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 ''[[ius cogens|jus cogens]]'' relating to [[international humanitarian law]] are overridden by state immunity. The case affirms case law from earlier decisions.{{which|date=October 2019}} The decision was criticized by some{{who|date=November 2023}} commentators for not embracing a nascent movement to waive immunity in cases of human rights violations. Others{{who|date=November 2023}} 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 law|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<!--not "accident", which implies no one is at fault, i.e. not tortious-->), 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]].<ref>[http://www.gpo.gov/fdsys/pkg/PLAW-110publ181/html/PLAW-110publ181.htm Public Law 110-18]</ref> 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 May 16, 1972 and is currently in force in 8 countries: Austria, Belgium, Germany, Luxembourg, Netherlands (incl. European Netherlands), Switzerland and the United Kingdom.<ref>http://conventions.coe.int/treaty/Commun/ChercheSig.asp?NT=074&CM=0&DF=&CL=ENG</ref> 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]].
+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.<ref>{{Cite web|url=https://www.coe.int/en/web/conventions/full-list|title=Full list|website=Treaty Office|language=en-GB|access-date=2019-07-30}}</ref> 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 [[United Nations General Assembly|General Assembly]] on 2 December 2004 but is yet to come into force.
+The United Nations Convention on Jurisdictional Immunities of States and Their Property was adopted by the [[United Nations General Assembly|General Assembly]] on 2 December 2004 but is yet to come into force.<ref>{{Cite web|url=https://legal.un.org/avl/ha/cjistp/cjistp.html|title=United Nations Convention on Jurisdictional Immunities of States and Their Property|website=Audiovisual Library of International Law |publisher=United Nations Office of Legal Affairs |access-date=2019-07-30}}</ref>
-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 19 instruments of ratification have been deposited.<ref>[http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=III-13&Chapter=3&lang=en ]</ref>
+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|2024|10|post=,}} the Convention has 28 signatories and 24 parties.<ref>{{cite web |url=https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=III-13&chapter=3&clang=_en |title=United Nations Convention on Jurisdictional Immunities of States and Their Property |website=United Nations Treaty Collection |access-date=17 February 2023}}</ref>
 ==See also==
 * [[Immunity from prosecution (international law)]]
 * [[Foreign Sovereign Immunities Act]] (United States)
+* [[Extraterritorial jurisdiction]]
 ==References==
-{{reflist}}
+{{Reflist}}
-*Based on the May 2005 international law programme from speakers Joanne Foakes and Elizabeth Wilmshurst, [[Chatham House]] [http://www.chathamhouse.org.uk/pdf/research/il/BPstateimmunity.pdf]{{Dead link|date=August 2011}}
+*Based on the May 2005 international law programme from speakers Joanne Foakes and Elizabeth Wilmshurst, [[Chatham House]] [https://web.archive.org/web/20070404031939/http://www.chathamhouse.org.uk/pdf/research/il/BPstateimmunity.pdf]
-*{{cite|author=Hazel Fox|title=The Law of State Immunity|publisher=Oxford University Press|date=2008}}
+*{{citation|author=Hazel Fox|title=The Law of State Immunity|publisher=Oxford University Press|date=2008}}
 ==External links==
 *[http://conventions.coe.int/Treaty/en/Treaties/Html/074.htm Text of European Convention on State Immunity]
 *[http://legal.un.org/ilc/texts/instruments/english/conventions/4_1_2004.pdf Text of United Nations Convention on Jurisdictional Immunities of States and Their Property]
+{{Authority control}}
 [[Category:International law]]
-[[Category:Immunity (law)]]
+[[Category:Legal immunity]]

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