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State Immunity Jus Cogens

Published online by Cambridge University Press:  17 January 2008


The General Assembly first proposed that the International Law Commission look into the issue of state immunity in 1977. As State immunity, by its very nature, sits at the interface between traditional and contemporary notions of international law, the span of the negotiations over three decades inevitably exposed the resulting Convention to gaps and inconsistencies with evolving areas of international law. In 1999 the International Law Commission established a Working Group on Jurisdictional immunities of States and their property,

Shorter Articles, Comments and Notes
Copyright © British Institute of International and Comparative Law 2006

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1 Annex to the Report of the international Law Commission on the Work of its Fifty-First Session, A/54/10 (3 May–23 July 1999) para 4 (quoting General Assembly Resolution 53/98, 8 Dec 1998).

2 ibid para 7 (outlining the five outstanding substantive areas requiring clarification as: ‘(1) the concept of a State for the purposes of immunity: (2) Criteria for determining the commercial character of a contract or transaction; (3) Concept of a State enterprise or other entity in relation to commercial transactions; (4) Contracts of employment and (5) Measures of Constraint against State property.)’

3 (n 1) para 9.

4 General Assembly Convention on jurisdictional immunities of States and their property: Report of the Chairman of the Working Group, A/C.6/54/L.12 (12 Nov 1999) para 47.

5 ibid para 48

6 General Assembly Resolution 59/38 United Nations Convention on Jurisdictional Immunities of States and Their Property A/RES/59/38 (16 Dec 2004).

7 General Assembly Report of the International Law Commission on the Work of Its Forty-Third Session A/46/10 (29 Apr–19 July 1991) 38.

8 ibid (n 68) p 37 (citing the surge in the adoption of domestic legislation on immunity).

9 Appendix to the Report of the International Law Commission (n 1) para 3 (discussing, Al-Adsani v Government of Kuwait 107 ILR 536 (1996); Ex parte Pinochet R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 3) [2000] 1 AC 147; Controller and Auditor General v Sir Ronald Davidson [1996] 2 NZLR 278; and the series of cases in the United States of Argentine Republic v Amerada Hess Shipping Corp 109 SCt 683 (1989), Siderman de Blake v the Republic of Argentina 965 F 2d 688 (9th Cir 1992), Saudi Arabia, King Faisl Specialist Hospital and Rovspec, Petitioners v Scott Nelson et ux 507 US 349, 113 SCt 1471 (US Fla 1993), the dissenting opinion of Justice Wald in Princz v Federal Republic of Germany 26 F 3d 1166 (DC Cir 1994) as well as s 221 of the Anti-Terrorism and Effective Death Penalty Act 1996 which amends the Foreign Sovereign Immunities Act of 1976 in the United States and the Report of the International Law Association Committee on State Immunity (1994).)

10 Appendix, ibid 6–7.

11 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law UN Doc E/CN.4/RES/2005/35, Annex (20 Apr 2005) (‘Van Boven-Bassiouni Principles’); Economic and Social Council Promotion and Protection of Human Rights: Impunity: Report of the Independent Expert to Update the Set of Principles to Combat Impunity, Diane Orentlicher: Addendum: Updated Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity E/CN.4/2005/102/Add 1 (2005) (‘The Joinet–Orentlicher Principles’); Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-Third Session UN GAOR 56th Sess, Supp No 10, UN Doc A/56/10 (2001).)

12 Ferrini v Federal Republic of Germany (Cass Sez Un 5044/04) (reproduced in the original Italian text in (2004) 87 Rivista di diritto internazionale 539

13 Prefecture of Voiotia v FRG Case No 11/2000, Areios Pagos. (Gavouneli, Maria and Bantekas, Ilias, Sovereign Immunity—Tort Exception—Jus Cogens Violations—World War II Reparations—International Humanitarian Law (2001) 95 AJIL 198204, 200 (translating the judgment of the court).CrossRefGoogle Scholar

14 Al-Adsani v Kuwait (n 9).

15 Bouzari v Iran (Islamic Republic) Ont CA (2004).

16 See Section II below.

17 Al-Adsani v The United Kingdom (35763/97) [2001] ECHR 752.

18 Ferrini (n 12).

19 Judgment (n 12) para 9. (The court distinguished the two decisions of Presidenza Consiglo ministry e al c federazione italiana lavoratori trasporti e al; Stati Uniti d 'America c fedrazione italiana lavoratori trasporti e al, Italian Court of Cassation, 530/2000 (3 Aug 2000) and Presidenza Consiglio ministry v Markovic Order No 8157, 5 June 2002 (2002) 85 Rivista di diritto internazionale which provided immunity in cases involving personal injury to civilians during military activities).

20 For further discussion of the ‘trumping’ argument or normative hierarchy theory, see Caplan, LeeState Immunity, Human Rights and Jus Cogens: A Critique of the Normative Hierarchy Theory (2003) 97 AJIL 741–81.CrossRefGoogle Scholar

21 Ferrini v Germany (n 12) para 5 (translated in Pasquale De Sena and Francesca de Vittor State Immunity and Human Rights: The Italian Supreme Court Decision on the Ferrini Case (205) 16 EJIL 89–112, 94).

22 Judgment (n 12) para 7 (translated in De Sena and De Vittor, ibid 98) (emphasis in translation and original).

23 Judgment (n 12) 9.2 (translated in De Sena and De Vittor (n 21) 102).

24 Prefecture of Voiotia v the Federal Republic of Germany (n 12). See Gavouneli and Bantekas (n 12) 198 (translating the decision of the Areios Pagos).

25 Gavouneli and Bantekas (n 12) 200 (translating the decision of the Court, 15).

26 ibid 200 (translating the decision of the Court at 10).

27 ibid 203. For further discussion on the concept of implied waiver, see Belsky, Adam C, Merva, Mark, and Roht-Arriaza, NaomiImplied Waiver under the FSIA: A Proposed Exception to Immunity for Violations of Peremptory Norms of International Law’ (1989) 77 Calif L Rev 365415 andCrossRefGoogle ScholarO'Keefe, RogerEuropean Convention on State Immunity and International Crimes’ (1999) 2 Cam YB of Euro Legal Studies 507–20, 512–18. However, this theory has recently lost support. In Ferrini v the Federal Republic of Germany, the Italian Corte di Cassazione supported the Areios Pagos' findings but noted that ‘a waiver cannot… be envisaged in the abstract, but only encountered in the concrete’ (n 11) para 8.2. (translated in De Sena and De Vittor (n 21) 101–2 (emphasis in translation and original). Notably, in line with the separation under international law, the Areios Pagos upheld the plea of immunity at the enforcement stage, Decision of the Greek Supreme Court No 36/2002 (2003) 51 Nomiko Vima 856. The German Federal Court of Justice also held that the Greek courts did not have jurisdiction to hear the case as the underlying acts constituted acta jure imperii, their illegality notwithstanding, and therefore it did not recognize the judgment. Distomo, Bundesgerichtshof (BGH), decision of 26 June 2003, III ZR 245/98, published in (2003) NJW 3488. The European Court of Human Rights subsequently rejected the survivors’ claim that the German and Greek courts had violated their right of access to a court under Article 6(1) as inadmissible in kalogeropoulou et al v Greece and Germany (App 59021/00).CrossRefGoogle Scholar

28 Under Art 100(1F) of the Greek Constitution.

29 Federal Republic of Germany v Miltiadis Margellos Case 6/17-9-2002, The Special Highest Court of Greece (Decision of 17 Sept 2002).

30 See Panezi, MariaSovereign immunity and violation of ius cogens norms AED 6/2002 56 RHDI 199 (2003).Google Scholar

31 Under Art 87 of the Greek Constitution.

32 Under Art 10(1) of the Italian Constitution and Art 28(1) of the Greek Constitution Respectively.

33 This position has been contested by a range of courts and scholars who maintain that State immunity reflects an exception to the full and absolute jurisdiction that the forum State would otherwise be entitled to exercise, rather than an exception itself. The Schooner Exchange v McFaddon 11 US 116; 7 Cranch 116 (1812) 137; Separate Opinion of Judges Higgins, Kooijmans and Buergenthal) in Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) (ICJ 2002) reprinted in (2003) 42 ILM 852; SirSinclair, IanThe Law of Sovereign Immunity: Recent Developments (1980-II) 167 Recueil des Cours 113284, 215;Google ScholarHiggins, RosalynCertain Unresolved Aspects of the Law of State Immunity (1982) 29 Neth Int'l L Rev 265–7, 271.CrossRefGoogle Scholar

34 Bouzari v the Islamic Republic of Iran (n 15) para 44 (finding that the commercial exception (s 6) did not apply although the purpose of the torture could have been for commercial gain, due to Canada's application of the ‘nature’ of the act test and at paras 46–7, finding that tort exception did not apply due to the territorial nexus requirement).

35 ibid para 67.

36 Committee Against Torture Summary Record of the Second Part (Public) of the 646th Meeting, 6 May 2005. CAT/C/SR.646/Add 1, para 67.

37 Al-Adsani v Kuwait (n 9) 4.

38 ibid 5.

39 Leave to Appeal refused on 27 Oct 1996.

40 Al-Adsani v United Kingdom (n 17). See Orakhelashvili, AlexanderState Immunity in National and International Law: Three Recent Cases Before the European Court of Human Rights’ (2002) 15 Leiden Journal of Intl Law 703–14;CrossRefGoogle ScholarVoyiakis, EmmanuelAccess to Court v State Immunity’ (2003) 52 ICLQ 297332.CrossRefGoogle Scholar

41 Jones v Ministry of Interior Al-Mamlaka Al-Arabiya (The Kingdom of Saudi); Mitchell and others v Al-Dali [2004] All ER (D) 418 (Oct).

42 ibid para 16.

43 ibid para 17.

44 Brownlie, IanPrinciples of Public International Law (6th ednOUP Oxford 2003) 34 (‘A State cannot plead provisions of its own law or deficiencies in that law in answer to a claim against it for an alleged breach of its obligations under international law’); See also Human Rights Committee, General Comment 31 CCPR/C/21/Rev1/Add.13 (adopted on Mar 2004) (‘Where there are inconsistencies between domestic law and the Covenant, Article 2 requires that the domestic law or practice be changed to meet the standards imposed by the Covenant's substantive guarantees’).Google Scholar

45 See Fox, Hazel QC The Law of State Immunity (The Oxford International Law Library 2002) 525;Google ScholarZimmerman, AndreasSovereign Immunity and Violations of International Jus Cogens—Some Critical Remarks’ (19941995), 16 Mich J Int'l L 433–40, 438.Google Scholar

46 Christopher Keith Hall 55 ICLQ 411–26.

47 Draft Articles on Responsibility of States (n 11).

48 Commentaries to the Draft Articles on the Responsibility of States for International Wrongful Acts, Report of the International Law Commission on the work of its Fifty-third session, Official Records of the General Assembly, Fifty-sixth session, Supplement No 10 (A/56/10) (Nov 2001) Ch II(7) 281 (it should be noted that Ch III addresses what the International Law Commission refers to as ‘serious breaches of obligations arising under peremptory norms’ defined under Art 40(2) as involving ‘a gross or systematic failure by the responsible state to fulfil the obligation’).

49 General Assembly Report of the Ad Hoc Committee on the Jurisdictional Immunities of States and Their Property Official Records, Fifty-Ninth Session, Supplement No 22 UN Doc A/59/22 (2004) 3 (reiterating the general understanding that the Convention does not apply to criminal proceedings) and 19 (proposing in Annex II, Written Proposals Submitted During the Session of the Ad Hoc Committee, that the Preamble to the Convention contain the clause, ‘Recognizing the general understanding that the provisions of the present Convention do not cover criminal proceedings). See also General Assembly (n 7) (standing that ‘Although the draft articles do not define the term “proceeding”, it should be understood that they do not cover criminal proceedings’).

50 General Assembly (n 6) Para 2.

51 MrReuter, and MrUshakov, Year Book of the International Law Commission (1986) vol I, 1943rd Meeting (7 May 1986) para 30 and para 56 (cited in Fox (n 51) 222.)Google Scholar

52 See Al-Adsani the United Kingdom (n 17), Joint Dissenting Opinion of Judges Rozakis and Caflisch Joined by Judges Wildhaber, Costa, Cabral Barreto and Vaji, 29–31 and Dissenting Opinion of Judge Loucaides, 34.

53 Christopher Keith Hall 55 ICLQ 411–26.

54 Committee against Tortue Consideration of Reports Submitted by States Parties under Article 19 of the Convention: Conclusions and Recommendations of the Committee against Torture, 34th Session (May 2005) CAT/C/CO/34/CAN para C (4)(g).

55 ibid D(5)(f).

56 General Assembly (n 7) 38–9.

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