Abstract
This article takes Pieter Kooijmans’ 1964 book as the launching point for a discussion of contemporary issues relating to the legal equality of States in the context of immunity from suit. It assesses the strengths of the ‘Grundnorm’ of sovereign equality and examines whether it has any real role to play in providing answers to current problems, including whether immunity should be set aside in the face of claims that a foreign State or its agent has committed human rights violations. Close attention is paid to the 2012 Judgment of the International Court of Justice in the Jurisdictional Immunities of the State case. That Judgment demonstrates that sovereign equality has not yet been replaced as the generating principle of law in the realm of immunity. At the same time, there is an emerging alternative approach centered on the individual rather than the State.
The author was President (2006-2009) and Judge (1995-2009) of the International Court of Justice. Current President of the British Institute of International and Comparative Law.
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Notes
- 1.
Kokott 2007, para. 1.
- 2.
See Underhill v Hernandez (1897) 118 US 456; Duke of Brunswick v King of Hanover (1848) 2 HL Cas 1; Jurisdictional Immunities of the State (Germany v. Italy, Greece intervening), ICJ, Merits, Judgment of 3 February 2012, para. 57; Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), ICJ, Merits, Judgment of 14 February 2002, paras. 1 and 62. See also the 2009 Naples Resolution of the Insitut de droit international, Article II(1): ‘Immunities are conferred to ensure an orderly allocation and exercise of jurisdiction in accordance with international law in proceedings concerning States, to respect the sovereign equality of States and to permit the effective performance of the functions of persons who act on behalf of States.’
- 3.
Jurisdictional Immunities of the State, para. 57. This last point had already been emphasized in the Joint Separate Opinion by Judges Higgins, Kooijmans and Buergenthal in the Arrest Warrant case, para. 3.
- 4.
See, e.g., 2004 United Nations Convention on the Jurisdictional Immunities of States and their Property, Annex, UN Doc. A/RES/59/38, art. 5 and the 1978 UK State Immunity Act, s 1(1).
- 5.
See below Sect. 6.2.
- 6.
Bouzari et al. v. Islamic Republic of Irani (2004) 243 DLR (4th) 406, paras. 40-41.
- 7.
Schreiber v. Canada (Attorney General) (2002) 216 DLR (4th) 513, para. 17.
- 8.
See 1978 United Kingdom State Immunity Act s 3(3); 1976 United States Foreign Sovereign Immunities Act s 1605; 1972 European Convention on State Immunity Articles 1-15; UNCSI, arts. 5, 10-17.
- 9.
For a brief description, see Fox 2008, at 224-226.
- 10.
See, e.g., Guttieres v. Elmilik (1886), Foro It. 1886-I, 913 (cited in Fox 2008, at 224).
- 11.
SA des Chemins de Fer Liégeois-Luxembourgeoisv.l’Etat Néerlandais, Pasicrisie belge 1903, I294; Hoyle 1987.
- 12.
Letter of 19 May 1952 from the Acting Legal Adviser of the Department of State, Jack Tate, to the Acting Attorney-General Philip B. Perlman (reprinted in 26 Dep’t St. Bull. 984-985 (1952)).
- 13.
Philippine Admiral (Owners) Appellants v. Wallem Shipping (Hong Kong) Ltd and Another (1977) AC 373.
- 14.
Trendtex Trading Corporation v. Central Bank of Nigeria (I977) QB 529, at 556.
- 15.
E.g., The Tervaete (1922), at 274; The Cristina (1938) AC 485.
- 16.
Fox 2008, at 226-230.
- 17.
See, e.g., FG Hemisphere LLC v. Democratic Republic of Congo, Hong Kong Court of Final Appeal: Bokhary, Chan and Riberio PJJ, Mortimer and Sir Anthony Mason NPJJ: FACV No. 5, 6 and 7 of 2010, decided 8 June 2011.
- 18.
FSIA, s 1605(a)(5).
- 19.
UK SIA, s 5.
- 20.
UNCSI, art. 12 headed ‘Personal injuries and damage to property’.
- 21.
This provision does not appear in the UNCSI nor FSIA. It is included in ECSI in Article 4.
- 22.
UNCSI, Article 11; UK SIA, s 4.
- 23.
See Articles 12-13 UNCSI; s 6-8 UK SIA; Articles 6-8 ECSI; s 1605(a) FSIA.
- 24.
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), ICJ, Merits Judgment of 4 June 2008.
- 25.
Ibid., at 244, para. 196.
- 26.
Ibid., at 244, para. 196.
- 27.
Regina v. Bow Street Metropolitan Stipendiary Magistrate (Pinochet III), 1 A.C. 61 (2000) AC 147.
- 28.
Jones v. Saudi Arabia (2006) UKHL 26.
- 29.
See, e.g., Lord Hoffman, who commented that there was nothing in the Torture Convention which creates an exception to immunity in civil proceedings. Jones v. Saudi Arabia, at 23.
- 30.
The claims fell into three categories: victims and their relatives of the large-scale killing of civilians in occupied territory as part of a policy of reprisals; members of the civilian population who were deported from Italy to what slave labour in Germany; and members of the Italian armed forces who were denied the status of prisoner of war to which they were entitled and who were also used as forced labourers. Jurisdictional Immunities of the State, para. 52.
- 31.
Ibid., para 57.
- 32.
Ibid., para. 57.
- 33.
Ibid.
- 34.
UNCSI, ECSI, the 1983 draft Inter-American Convention on Jurisdictional Immunity of States, and the national legislation of Argentina, Australia, Canada, Israel, Japan, Singapore, South Africa, UK, and USA.
- 35.
Jurisdictional Immunity of the State, para. 57.
- 36.
Ibid., para. 60.
- 37.
Ibid.
- 38.
Ibid., para. 69. Moreover, when presenting to the Sixth Committee of the General Assembly the Report of the Ad Hoc Committee, the Chairman of the Ad Hoc Committee stated that the draft UNCSI ‘had been prepared on the basis of a general understanding that military activities were not covered’. UN doc. A/C.6/59/SR.13, para. 36.
- 39.
Jurisdictional Immunity of the State, para 71.
- 40.
Ibid., para. 72.
- 41.
Ibid., para. 71.
- 42.
E.g., McElhinney v. Ireland, ECtHR, No. 31253/96, 21 November 2001, para. 39; International Law Reports, vol. 123, para. 38; Grosz v. France, ECtHR, No. 14717/06, 16 June 2009; Al-Adsani v. United Kingdom, ECtHR, No. 35763/97, 21 November 2001, para. 61; International Law Reports, vol. 123, at 24. Jones v. Saudi Arabia is now pending before the ECtHR as Jones v. UK.
- 43.
Al-Adsani v. United Kingdom, para. 55.
- 44.
Jones v. Saudi Arabia, para. 14.
- 45.
Ferrini v. Federal Republic of Germany, Decision No. 5044/2004 Rivista di diritto internazionale, vol. 87, 2004, at 539; International Law Reports, vol. 128, at 658.
- 46.
Giovanni Mantelli and others and the Liberato Maietta cases (Italian Court of Cassation, Order No. 14201 (Mantelli) Foro italiano, vol. 134, 2009, I, at 1568); Order No. 14209 (Maietta) Rivista di diritto internazionale, vol. 91, 2008, at 896).
- 47.
Jurisdictional Immunities of the State, para. 52.
- 48.
Ibid., para. 82.
- 49.
See Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, ICJ, Advisory Opinion, 29 April 1998, where the Malaysian courts intended to hear the legal actions in defamation against Mr Cumaraswamy first, and then revert to the question of his entitlement to immunity.
- 50.
Jurisdictional Immunities of the State, para. 82.
- 51.
Article 8(2) of UNCSI provides that ‘[a] State shall not be considered to have consented to the exercise of jurisdiction by a court of another State if it intervenes in a proceeding or takes any other step for the sole purpose of:
(a) invoking immunity; or
(b) asserting a right or interest in property at issue in the proceeding.’
- 52.
‘… someone some time has to make the first move. One country alone may start the process. Others may follow. At first a trickle, then a stream, last a flood.’ Lord Denning in Trendtex Trading Corporation v. Central Bank of Nigeria, para. 556.
- 53.
See cases cited in Jurisdictional Immunities of the State, para 85.
- 54.
For example, Lord Nicholls of Birkenhead.
- 55.
FG Hemisphere LLC v. Democratic Republic of Congo. See also the challenges during the negotiation of the UNCSI’s exception for commercial transactions, which Fox observes was ‘[t]he most intractable problem on which there was sharp disagreement in the [International Law Commission] and through the discussion in the UNGA Sixth Committee.’ Fox 2008, at 537.
- 56.
There were, of course, considerable problems about trading that was done through State companies: and in the eyes of the State concerned, sovereign activity was still being engaged in.
- 57.
Playa Larga (Owners of Cargo Lately Laden on Board) Appellants v. I Congreso del Partido (Owners) Respondents, Marble Islands (Owners of Cargo Lately Laden on Board) Appellants v. Same Respondents (1983) 1 AC 244, at 262.
- 58.
UNSCI, Article 2(2).
- 59.
Jones v. Saudi Arabia.
- 60.
See also the Court’s remarks, devoid of operational reality, stating that a bar to jurisdiction because of immunity ‘does not represent a bar to criminal prosecution’ in certain circumstances. Arrest Warrant, para. 61.
- 61.
Djibouti v. France.
- 62.
Certain Criminal Proceedings in France (Republic of the Congo v. France), ICJ, withdrawn on 16 November 2010.
- 63.
Arrest Warrant. See also Application by Rwanda against France, ICJ, 18 April 2007, which has not yet been entered on the General List pending the consent of France to the jurisdiction of the Court under Article 38(5) of the Rules of Court.
- 64.
See also Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) (pending since 19 February 2009), regarding Senegal’s compliance with its obligation to prosecute the former President of Chad, Hissène Habré, or to extradite him to Belgium for the purposes of criminal proceedings.
- 65.
This point is made with great clarity in O’Keefe 2011.
- 66.
The UNGA Sixth Committee Working Group stated that the question was of current interest, but ‘the existence or non-existence of immunity in the case of violation by a State of jus cogens norms of international law’ did not really fit into the present draft nor did it seem ‘ripe enough … to engage in a codification exercise’. UNGA Sixth Committee Convention on Jurisdictional Immunities, Report of the Chairman of the Working Group, 12 November 1999, UN Doc. AC.6/54/L.12, paras. 46–8.
- 67.
E.g., UK SIA, US FSIA, 1981 South Africa Foreign States Immunities Act; 1985 Canada State Immunity Act; 1985 Australia Foreign States Immunities Act; 1985 Singapore State Immunity Act; 1995 Argentina Law No. 24.488 (Statute on the Immunity of Foreign States before Argentine Tribunals); 2008 Israel Foreign State Immunity Law; Japan, 2009 Act on the Civil Jurisdiction of Japan with respect to a Foreign State; Pakistan, 1981 State Immunity Ordinance.
- 68.
Torts committed on the territory of the forum state, see above.
- 69.
Kokott 2007, para. 4.
- 70.
Jurisdictional Immunity of the State, para. 3.
- 71.
Ibid., para. 150.
- 72.
Ibid., para. 151 (footnotes omitted).
- 73.
Ibid., para. 161.
- 74.
Ibid., para. 293.
- 75.
Ibid., para. 294.
- 76.
Ibid., para. 294.
- 77.
Ibid., para. 295.
References
Fox H (2008) The law of state immunity, 2nd edn. Oxford University Press, Oxford
Hoyle MSW (1987) The mixed courts of Egypt 1896–1905. Arab Law Q 2:57
Kokott J (2007) States, sovereign equality. In: Wolfrum R (ed) Max Planck Encyclopedia of public international law. Oxford University Press, Oxford. http://www.mpepil.com/subscriber_article?id=/epil/entries/law-9780199231690-e1113. Accessed 16 Sept 2012
O’Keefe R (2011) State immunity and human rights: heads and walls, hearts and minds. Vanderbilt J Transnatl Law 44:999–1045
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Higgins, R. (2013). Equality of States and Immunity from Suit: A Complex Relationship. In: Nijman, J., Werner, W. (eds) Netherlands Yearbook of International Law 2012. Netherlands Yearbook of International Law, vol 43. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-915-3_6
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