State immunity

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 2015 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.

Lord Atkin (d.1944) observed in the highest UK court in 1938:

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.

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.

State immunity

State immunity ( sovereign immunity ) is a principle in international law according to which a sovereign state is not subject to the authorities of other states.

The principle of state immunity is based on the concept of sovereign equality enshrined in the UN Charter ( 1945 ) and disclosed in the Declaration on Principles of International Law ( 1970 ). At the same time, the very concept of sovereign equality arose much earlier.

This principle applies both to the legislative and executive , and to the judicial jurisdiction of a foreign state.

Content

Elements of State immunities

State immunity from the jurisdiction of a foreign state consists of several elements:

1. Judicial immunity - non-judicial jurisdiction of the state to the court of a foreign state.

2. Immunity from pre-enforcement of a claim .

3. Immunity from enforcement of a foreign judgment .

4. The immunity of state property is the legal regime of the inviolability of state property located on the territory of a foreign state.

5. Immunity from the application of foreign law in relation to transactions involving the state.

These immunities operate independently.

For example, if a State consents to its case being taken to court (i.e., waives judicial immunity), immunities from provisional security and enforcement continue to apply.

State immunity and civil law relations

The concept of immunity refers to the actions of the state as a subject of international legal relations. In the modern world, the state often behaves like a legal entity (a subject of civil law). There are different points of view as to whether State immunity extends to such relationships.

The theory of absolute immunity

This theory was developed in the 19th century. and in the first half of the 20th century. In accordance with it, state immunity extends to commercial transactions. The Soviet Union and the PRC adhered to the theory of absolute immunity.

This concept leaves the sovereign right for the state to waive immunity (including declaring a waiver of the use of immunity in a treaty).

The theory of functional (limited) immunity

The theory of functional immunity was adopted in the United States and most European countries in the second half of the 20th century. Russia has recently also begun to abandon the concept of absolute immunity in favor of this position.

At the same time, it is considered that the state cannot enjoy immunity to protect against claims arising from the failure of the state to fulfill its obligations under commercial contracts. Thus, formal criteria are needed to distinguish between cases where the state acts “as a bearer of public authority” ( Latin jure imperii ) and cases when the state behaves “like a private person” ( Latin jure gestionis ).

Such criteria are subject to regulation by national legislation on the immunity of foreign states. There are also international treaties dealing with these issues. For example, the European Convention on State Immunity , adopted in 1972 (Russia is not a party to it), stipulates cases in which a state cannot invoke immunity.

However, such regulation partly infringes on the sovereignty of foreign states, placing it on the national authorities to decide on the applicability of immunity in a particular case.

The already mentioned UN Convention on the Jurisdictional Immunities of States and Their Property (not yet in force) contains an article prohibiting the use of state immunity in commercial transactions with a foreign individual or legal entity. Exceptions are cases where the parties have expressly agreed otherwise. Also, this article does not apply to transactions between states.