State immunity
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The 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. But there are now 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 new 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 abuses against state agents where the abuse has occurred in another country.
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[edit] Immunity against civil proceedings for serious human rights abuses
It is not obvious why states should have 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 lawyers’ 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.
The argument on the other side is that impunity should be ended but that there are other ways of doing this and that it should not be at the expense of the proper conduct of relations between states; that one country's perception of abuse may not be another’s; that civil actions for a state agent's atrocities should be brought in the courts of that state, not in a foreign court; that prosecution of crime lies in the hands of the state whereas civil proceedings are pursued by individuals for their own ends; that civil actions brought by disgruntled individuals in one country against another state can have grave political and economic repercussions for both states; and that civil proceedings can raise difficult issues of enforcement and extra-territorial jurisdiction. The arguments on either side reflect different perceptions of the balance to be struck between protection of state interests and protection of an individual's human rights.
[edit] European Convention on State Immunity
The European Convention on State Immunity was signed in Basle on May 16, 1972 and currently has 46 signatories — that is every member of the Council of Europe.
[edit] 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. The Convention is open for signature by all States until 17 January 2007 and will enter into force on the thirtieth day following the date of deposit of the thirtieth instrument of ratification, acceptance, approval or accession. As of 13 August 2006, there are 18 signatories to the Convention and one instrument of ratification has been deposited.
[edit] References
- Based on the May 2005 international law programme from speakers Joanne Foakes and Elizabeth Wilmshurst, Chatham House [1]
- Hazel Fox, The Law of State Immunity, Oxford University Press, 2002.
