You are on page 1of 17

STATE IMMUNITY: A TRICKY OBSTACLE IN REDRESSAL

OF HUMAN RIGHTS VIOLATIONS

Elena- Dimitra Pantopoulou1


Abstract
The present paper has the scope to explore the conflict between the doctrine of state
immunity and the jus cogens norms, since this conflict has been raised in several human
rights litigations as a result of reparation claims for World War II crimes. Domestic
jurisdictions, particularly in common law countries where Foreign Immunity Acts have been
enforced, produced important decisions on this conflict by considering and, in few cases,
adopting the argument of obviated state immunity in case of conflict with jus cogens norms.
In international law theory, the development of normative hierarchy theory, which is
thoroughly analyzed in the third part of this paper, tried to justify this new exceptive approach
of state immunity in national fora. However, its obvious weaknesses have made it an
unpersuasive argument, leaving the state immunity as an absolute trend for the international
justice. The decision of the International Court of Justice on the Jurisdictional Immunities of
the States confirmed that international fora are not ready yet for the adoption of restrictive
immunity. Thus, in the last part of the current paper, I will try to face the reluctance of
international justice to reconsider the doctrine of state immunity, which remains one of the
greatest judicial obstacles for redressal of human rights violations, by using the flexibilities of
domestic jurisdiction of each state.0

1. Introduction
Before examining the conflict of state immunity with jus cogens norm, I find it
important to start this paper by determining the context of foreign sovereign
immunity, in cases of human rights violations by a State against nationals of another
1

Human Rights Lawyer, Doctorate Candidate at Law Faculty of Lund University, LLM in International Human
Rights Law, Lund University, Sweden and Public International Law , National and Kapodistrian University of
Athens, Email: epantopoulou@gmail.com. An earlier version of this article was presented at the final stage of the
module of Human Rights course under the title: Is state immunity an undeniable obstacle in the path of victims of
human rights violations seeking legal redress, 14 January 2014 . The previous version has been evaluated and
commented by Professor Ida Elisabeth Koch. The author worked on children rights at the mission of Save the
Children in Sweden and has been consultant on corporate responsibility issues at the Paris- based organization
Global Rights Compliance from 2013-2015. She is currently working on human right issues before the greek
courts.

State. When the courts of one state assume jurisdiction over another state or its
representatives, the authority of the forum state to adjudicate the dispute conflicts
with the principle of state equality, often expressed by the maxim par in parem non
habet imperium2. Over time, a number of customary rules barring domestic courts
from adjudicating disputes involving another state have emerged under international
law. These rules are justified by the need to avoid interference with the exercise of its
sovereign prerogatives by the foreign state and to allow its representatives to perform
their official duties without practical obstacles. According to International Law
Commission (hereinafter ILC), customary international law on state immunity has
grown principally and essentially out of the judicial practice of States on the matter,
although in actual practice other branches of the government, namely, the executive
and legislature, have had their share in the progressive evolution of rules of
international law.3
One of the most difficult tasks in the case of foreign sovereign immunities is to
identify the international rules governing state immunity, since the sources of
international law on this subject appear to be more widely scattered than normally
expected in search for rules of international law on any other topic. 4 Additionally, the
practice of states on the matter is not uniform. I can figure out two different periods
on the conception of state immunity in domestic level: the first period, covering the
eighteenth and nineteenth centuries, has been called the period of absolute immunity,
because foreign states are said to have enjoyed complete immunity from domestic
legal proceedings.5The second period emerged during the early twentieth century,
when Western nations adopted a restrictive approach to immunity in response to the
increased participation of state governments in international trade. This period was
marked by the development of the theoretical distinction between acta jure imperii,
which was considered to be the state conduct of a public or governmental nature for
which immunity was granted and acta jure gestionis, which was considered to be the
state conduct of a commercial or private nature for which it was not. 6 According to the
theoretical approaches of the era, the exercise of jurisdiction over acta jure gestionis
2

See Hazel Fox, The Law of State Immunity, 2nd edition, Oxford International Law Library, 2008.
See Preliminary Report on Jurisdictional Immunities of States and Their Property, par. 23,UN Doc. A/CN.4/323.
reprinted in 2 Y.B. INT L L. COMMN 231( 1979)
4
Ibid, par.22
5
See The Parlement Belge, (1880) 5 P.D.197, 217. See also Spanish Government vs Lambege et Pujol, Cass. D.
1849, I, 5,9.
6
See James Crawford, International Law and Foreign Sovereigns: Distinguishing Immune Transactions, 1983
BRIT. Y. B. INTL L. 75.
3

did not affront a states sovereignty or dignity. However the application of this public/
private distinction proved difficult for many courts, some states, particularly the
common- law countries, developed a functional variation on the restrictive approach,
replacing that practical distinction with national immunity legislation.7
As of today, the exact scope of this so called restrictive doctrine of state
immunity remains unclear. If, over time, most countries have similarly extended their
courts reach over foreign states activities, international consensus on the matter
exists only at a rather high level of abstraction, and the details of the international
law of state immunity are not always certain.8 The difficulty of uniformity of state
practice is also due to the sensitivity of the question before the court: often, legal
decisions regarding state immunity yield to considerations of foreign relations and
policy, so as to maintain friendly relations with the foreign sovereign.
For years now, the codification of the customary rules on state immunity has
remained limited on regional level. The European Convention on State Immunity,
signed in Basle in 1972, still remains the only Convention in force which codifies
rules on state immunity and its low- ranked ratification, by only 8 European countries,
shows that the doctrine of State Immunity is still evolving and no consensus exists
between states on the application of this doctrine within the domestic legal order of
States. Only in 2004, though, the United Nations Convention on Jurisdictional
Immunities of States and Their Property (hereinafter JISP Convention) appeared as a
major step towards enhanced legal certainty in this area of law, since it was designed
to achieve the codification and development of international law and the
harmonization of domestic courts practice by embracing the restrictive approach to
state immunity9. The important step with this Convention is that, even if it is not yet
into force, has achieved to be ratified by 28/30 states till now and more precisely by
states such as Russia and China, where national courts traditionally used to favor
absolute immunity approach.
Upon this legal uncertainty, I will attempt to examine the possibility of granting
state immunity against human right violation cases and build up a new, more
successful approach of the concept so as not to become obstacle in attempts of human
rights victims for seeking legal redressal for jus cogens violations.
7

See U.S. Foreign Sovereign Immunities Act of 1976 and UK State Immunity Act, 1978
See Joseph W. Dellapenna, Foreign State Immunity in Europe, 1992, 5 N.Y. INT L L. REV. 51, 61
9
See the Preamble of the United Nations Convention on Jurisdictional Immunities of States and Their Property,
opened for signature Jan. 17, 2005, reprinted in 44 ILM 803 (2005).
8

2. The conflict between jus cogens and state immunity: revisited immunity?
As it is stated in the first section of this paper, involvement of States in activities of
a private law nature has been the reason for the development of the restrictive
approach to the jurisdictional immunity of States. A gradual awakening of the
international communitys conscience with regard to the need to protect certain
fundamental values and principles led to reconsideration of the limits of state
sovereignty and its constitutive elements both in theoretical and in judicial level. The
question is at what point these relatively new concerns affected the doctrine of state
immunity?
Particularly since the end of World War II, impressive initiatives on this issue have
occurred in the field of international criminal law, through the emergence of rules on
war crimes, crimes against humanity and genocide. These initiatives are echoed in the
text of international criminal courts such as the Nyremberg Charter, the texts of the
International Criminal Tribunal for the Former Yugoslavia and the International
Criminal Tribunal for Rwanda as well as within the content of several Conventions
such as the Geneva Conventions or the Convention Against Torture. 10 However, the
international instruments providing for both substantive and procedural laws and
mechanisms to apply and interpret them do not always suffice to cope with reparation
of wrongs committed by individual States and their agents to the community s
fundamental values. Domestic courts, through mainly civil procedures, tried to assist
on this development of immunity concerning cases where reparations for violations of
jus cogens have been claimed, but still there is a main distinction between how
international courts interpret and apply the restrictive immunity and how domestic
courts do this. In its 1989 Report on Jurisdictional Immunities of States and their
Property, a working group of the ILC found that national courts had in some cases
shown sympathy for the argument that States are not entitled to plead immunity where
there has been a violation of human rights norms with the character of jus cogens,
although in most cases the plea of sovereign immunity had succeeded. 11 At this point
10

See D. Robinson, The impact of the human rights accountability movement on the international law of
immunities, The Canadian Yearbook of International Law 2002, 151 et seq., 154-155
11
The working group cited the following cases in this connection: (United Kingdom) Al-Adsani v. State of Kuwait,
ILR 100, 465, 471; (New Zealand) Controller and Auditor General v. Sir Ronald Davidson, New Zealand Law
Reports 1996, 278, particularly at 290 ; Dissenting Opinion of Justice Wald in (United States) Prinz v. Federal
Republic of Germany 26F3d 1166 (DC Cir. 1994) at 1176-1185; Siderman de Blake v. Republic of Argentina 965
F2d 699 (9th Cir. 1992); Argentine Republic v. Amerada Hess Shipping Corporation 488 US 428 (1989); Saudi
Arabia v. Nelson, ILR 100, 544.

it is important to see how international and domestic jurisdiction have dealt with the
conflict between jus cogens norms and state immunity.
a. The national adjudication system and the conflict: A major blow to the developing
trend of a restrictive approach, that inspired domestic legal system to enlarge the
context of restrictive immunity in human rights litigation, was the judgment by the
International Court of Justice in the case of Arrest Warrant (Democratic Republic of
the Congo v. Belgium), in 2002. The case concerned an arrest warrant issued by the
Belgian courts against an incumbent minister of the Democratic Republic of the
Congo, suspected of having committed serious war crimes and crimes against
humanity. Before the international court, Belgium contested that an exception to the
immunity rule was accepted in the case of serious crimes under international law,
referring to the recognition of such an exception in Pinochet judgement by the House
of Lords and Quaddafi judgement by the French Court of Cassation. Although the
Court rejected the Belgian claim on the basis that the written rules provided for
various international instruments did not enable it to consider that any such exception
exists in customary international law in respect of national courts 12. The argument has
influenced a number of subsequent national adjudications of cases bearing similarities
to the case examined by International Court of Justice. In at least three important
national court cases, we have judicial decisions taking under serious considerations
the non -granting of immunity for a state conduct, violating jus cogens. The first and
most successful of the cases is the Prefectures of Voiotia judicial decision. In civil
claims regarding the massacre committed by German forces in Distomo (Greece),
during that country's occupation in the Second World War, the multi-member Livadia
court denied immunity to Germany by referring to the crimes as violating jus cogens
rules of the international community.13 The ruling had been first upheld by the Court
of Cassation (Areios Pagos) but it was ultimately overturned by the Supreme Court,
which refused execution by arguing that Germany enjoyed immunity in this respect.14
Equally, when the case went to the German courts it was also dismissed by them.
The final finding by the Bundesgerichtshof ruled that "the judgment of the [Greek]
Areios Pagos could not be enforced in Germany, and that the massacres complained
12

See Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),
Judgment, ICJ Reports 2002, 24-25
13
See Judgment 137/1997 of 30 October 1997, Nomiko Vima - NoV 1998, 246 et seq.
14

See Judgment 6/2002 of 17 September 2002, Epetirida Institoutou Diethnon Spoudon, 2002-03, 688 et seq.

of were the exercise of sovereign power, and thus fell within the scope of state
immunity".15
The second case where the argument was invoked and taken under consideration by
the Court was the case of Houshang Bouzari against Iran. The plaintiff claimed
damages before the Ontario (Canada) Supreme Court of Justice for torture allegedly
suffered by him. The case was examined on the basis of the Canadian State Immunity
Act and the Court decided, taking into account both the Arrest Warrant and Al-Adsani
judgments, that Iran was immune before national courts for breaches of the jus cogens
rule prohibiting torture.16
The third case, where we have the most successful application of waiving immunity
for violations of jus cogens, is the decision by the Italian Supreme Court in the case of
Luigi Ferrini, a person who was deported to Germany during the Second World War
and forcibly employed in the war industry. The lower Italian courts declined
jurisdiction on the basis of immunity, but the Supreme Court overturned them,
holding that Germany was not immune from jurisdiction because the crimes allegedly
committed by Germany violated jus cogens rules, and these rules had an overriding
effect upon all other rules of international law conflicting with them.17
As it is obvious, national courts differentiate themselves from the absolute immunity
trend by taking under serious consideration and accepting, a few times, the argument
of restrictive or non immunity of states for jus cogens norms violations. The
international courts, on the contrary, do not seem ready to accept such a concept and
they obtain conservative views on the issue.
b. The international adjudication system and the conflict: Except of the Arrest
Warrant case, which was referred to the waiving of the functional immunity of the
Head of a State for jus cogens violations, there are only a few cases before
international fora, dealing with the conflict between jus cogens and state immunity.
Before the European Court of Human Rights, we had only two cases, namely the Al
Adsani case vs UK18 and McElhinney v. Ireland19, where the plaintiffs were claiming that
15

16

Ibid
See Ontario Superior Court of Justice, Bouzari v. Islamic Republic of Iran, 1 May 2002.

17

See Corte di Cassazione, Ferrini v. Repubblica Federale di Germania, no. 7791, 15/4/2005, Italian Yearbook of
InternationalL aw 2005, 317 et seq.
18
See Al-Adsani v. the United Kingdom [GC] (App. no. 35763/97), ECHR Reports of Judgments and Decisions
2001 -XI
19
See McElhinney v. Ireland [GC] (App. no. 31253/96), ECHR Reports of Judgments and Decisions 2001-XI

the defendant states had violated their right in fair trial, under article 6 of the
European Convention of Human Rights, by granting state immunity to state conducts
that had caused suffering of torture for the applicants. In their substantial part, both
decisions recognized that there is no exception from immunity in cases of jus cogens
violations, as that is stated in international customary law. Thus, granting of immunity
to states for conduct belonging to the public sphere is absolute and correct and for this
reason the Court dismissed the claims.
The same argument for the absolute state immunity was used by the International
Court of Justice in the recent decision on Judicial Immunities of the States (Federal
Republic of Germany vs Italy, intervening Greece), of 2012. The Court found that the
Italian legislation, by recognizing the waiving of immunity in case of jus cogens
violations, have violated the fundamental right of Germany to state immunity since
there is no exception in international treaty or customary law, recognizing the
existence of such an exception.
As it is clear from what was mentioned above, there is much more space for
consideration of restrictive immunity in human rights litigations before domestic
courts rather than international fora. For this reason, in section 4 I am to propose an
argument based on moving the focus of the conflict to the domestic legal order but
before this, I believe it is important to examine the theory of hierarchy of norms, that
created the argument of non immunity in jus cogens violations, and to find out why it
has not succeeded to convince yet the international human rights litigation.
3. Prefectures of Voiotia case: the rise and fall of the normative hierarchy theory
The normative hierarchy theory was a basic argument both before national and
before international fora, in order to support that state immunity should not be granted
in cases when a state conduct has violated jus cogens norms by provoking massive
human rights violations against nationals of the forum state. The reason for a special
reference in our research is the fact that while it was successfully accepted for a few
times in domestic legal orders in cases where civil claims for war crimes during the
World War II have been raised, in the international level regional and international
fora have rejected the argument, insisting on absolute immunity. By criticizing this
argument I will focus on the reasons why the argument was not convincing enough
for the international fora and in the next section, I will try to rebuild the state
immunity approach, so as to propose a brand new convincing argument on how to
deal with state immunity in human rights violations.
7

Beginning with the main points of this theory, it turns on the assumption that state
immunity is a product of state sovereignty, resting on the foundation that sovereign
states are equal and independent and thus cannot be bound by foreign law without
their consent.20 Since state immunity is not a peremptory norm, when invoked in
defense of a violation of jus cogens, it must yield to the general will of the
international community of states.21 Accordingly, since jus cogens is by definition a
set of rules from which states may not derogate, a state act in violation of such a rule
will not be recognized as a sovereign act by the community of states, and the violating
state therefore may not claim the right of sovereign immunity for its actions. 22 In case
of causing harm to an individual in violation of jus cogens, a state may no longer raise
an immunity defense because the state may be regarded as having implicitly waived
any entitlement to immunity.
The theory was initially used as legal argument for supporting the application of
section 1605 (a) (1) of the Foreign State Immunity Act , which empowers the exercise
of district court jurisdiction in cases in which a state has waived its immunity either
explicitly or by implication.23 The application of the waiver to immunity under section
1605 (a)(1) of the FSIA has been successfully supported in cases such as the famous
Siderman de Blake vs Republic of Argentina24, concerning the torture and the
expropriation of property of an Argentine citizen by Argentine military officials.
Outside this joint concept , the theory was used as a sole argument in Princz vs
Federal Republic of Germany, a case involving claims of personal injury and forced
labor arising from the plaintiff s imprisonment in Nazi concentration camps. Despite
receiving substantial consideration , the argument was rejected and for years then, was
not successfully raised as a legal argument neither in national nor in international
court proceedings, even if several legal scholars have started to produce significant
writings about it.25
20

See Adam C. Belsky, Mark Merva, & Naomi Roht-Arriaza, Comment, Implied Waiver Under the FSIA: A
Proposed Exception to Immunity for Violations of Peremptory Norms of International Law, 77 CAL. L. REV. 365
(1989), at 390.
21
Ibid
22
Ibid at 377
23
See 28 U.S.C. 1605(a)(1)
24
See 965 F.2d 699 (9th Cir. 1992)
25
See William Pepper, Iraqs Crimes of State Against Individuals, and Sovereign Immunity, 18 BROOK. J. INTL
L. 313, 1992 ; Mathias Reimann, A Human Rights Exception to Sovereign Immunity: Some Thoughts on Princz v.
Federal Republic of Germany, 16 MICH. J. INTL L. 403, 1995; Joseph G. Bergen, Note, Princz v. The Federal
Republic of Germany: Why the Courts Should Find That Violating Jus Cogens Norms Constitutes an Implied
Waiver of Sovereign Immunity, 14 CONN. J. INTL L. 169, 1999; Thora A. Johnson, Note, A Violation of Jus
Cogens Norms as an Implicit Waiver of Immunity under the Federal Sovereign Immunities Act, 19 MD. J. INTL L.
& TRADE 259 , 1995.

In the year 2001, a civil law court in Greece, feeling free from constraints of
national immunity legislation and treaty obligations 26, inclined from the trend of
absolute immunity and accepted the waiver of immunity for the Federal Republic of
Germany, by considering arguments based on the normative hierarchy of norms
theory. In this case, Prefectures of Voiotia vs. Federal Republic of Germany, the facts
of the case arose out of the Nazi occupation of southern Greece during World War II.
In 1944, Nazi military troops committed war atrocities against the local inhabitants of
the Prefectures of Voiotia, particularly in the village of Distomo, including willful
murders and destruction of personal property. Over fifty years later, the plaintiffs,
mostly descendants of the victims, sued the Federal Republic of Germany in the
Greek Court of First Instance of Livadia for compensation for the material damage
and mental suffering endured at the hands of the Nazis.27
The Court of First Instance invoked the normative hierarchy theory to rule that
Germany was not immune. According to the Court decision according to the
prevailing contemporary theory and practice of international law opinion . . . the
state cannot invoke immunity when the act attributed to it has been perpetrated in
breach of a jus cogens rule.28 The rule of jus cogens that the court identified was
contained in Articles 43 and 46 of the regulations annexed to the 1907 Hague
Convention Respecting the Laws and Customs of War on Land.29 Article 43 obligates
an occupying power to respect the laws in force in the occupied territory and to ensure
public order and safety, while Article 46 obliges occupying powers to protect certain
rights of the occupied, especially the rights to family honor, life, private property and
religious convictions.30The court concluded that the demonstrated breach of this rule
deprives a state of an immunity defense in domestic proceedings. The Hellenic
Supreme Court, Areios Pagos, affirmed the holding of the lower court and arguably
supported its reasoning related to the normative hierarchy theory.31 The Supreme
Court determined that the Nazis atrocities were an abuse of sovereign power, on
26

Greece had not signed and ratified the European Convention on State Immunity of 1972. There were no national
legislation regulating the immunity of States , as well.
27
See Prefecture of Voiotia v. Federal Republic of Germany, No. 137/1997 (Ct. 1st Inst. Leivadia, Oct. 30, 1997),
translated in Maria Gavouneli, War Reparation Claims and State Immunity, 50 Revue Hellnique De Droit
International 595 (1997) [hereinafter Greek Judgment I].
28
See Greek Judgment I, supra note 210, at 599.
29
Ibid
30
See Regulations Respecting the Laws and Customs of War on Land, Art. 43, annexed to Hague Convention [No.
IV] Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631
31
See Maria Gavouneli & Ilias Bantekas, Case Report: Prefecture of Voiotia v. Federal Republic of Germany, 95
AJIL 198 (2001).

which Germany could not base an immunity defence. Unfortunately, the execution of
the decision was considered a matter of great importance for the political relations
between Germany and Greece and the victims have never been compensated by the
German Government.
After this judicial triumph in the Greek court proceedings, the normative hierarchy
of norms was never raised successfully in any other national or international Court
proceedings. Particularly in the international level, the argument was supported before
the EC t HR, in the recent Al Adsani case. In the case, the Court has decided for the
absolute state immunity and consequently rejected the claim, despite the strong
dissenting opinions by Judge Christos Rozakis and Nicola Bratza, who expressed the
opposite views following an argumentation based on the normative hierarchy theory.
Finally, as it was mentioned in the second part of this paper, the ICJ decision on State
Immunities has denied any restriction to state immunity for any state conduct that
violates human rights and jus cogens, since no existing rule or custom could justify
the acceptance of this restriction for the states.
It is obvious that, for some years, the normative hierarchy theory was a very
promising basis for overcoming the obstacles in the path of human rights victims
seeking legal redressal. However, any legal use of it, except of the Prefectures of
Voiotia case, could not stand successfully particularly in the international law fora.
The reasonable question, at this point, is why the application of normative hierarchy
theory is so unconvincing for the fora.
The theory has a lot of weak aspects to show and first of all I would like to address
the issue of the context and the application of jus cogens. The theory places jus
cogens norms at the centre of its establishment but supporters of this theory
underestimate the fact that while the existence of jus cogens in international law is an
increasingly accepted proposition, its exact scope and content remains an open
question.32Supporters of the normative hierarchy theory have failed to indicate a
precise list of human right norms with a peremptory character. In the international
arena, consensus is emerging as to the status of certain norms, such as the prohibitions
against piracy, genocide, slavery, aggression and torture but still these norms represent
only a small fraction of the norms that potentially may belong to the body of jus
cogens. In the Prefectures of Voiotia case, the Greek courts identified the rights of
family honor, life, private property and religious convictions, enshrined in Article 46
32

See Ian Brownlie, Principles Of Public International Law , 5th Ed., OUP, 1998, supra note 6, at 51617.

10

of the Hague Regulations, as operative jus cogens. 33 The undefined character of jus
cogens may present problems for the courts. Requiring application of the theory
beyond cases of genocide, slavery and torture, it would place courts in an awkward
position by forcing them to determine whether a particular norm of international law
has attained the status of jus cogens, a task that international legal scholars have
grappled with for decades with only limited success.
Furthermore, I would like to stress out that the normative hierarchy theory takes as
assumption the fact that the concept of jus cogens is confined solely to the realm of
human rights, which is totally a misconception. Great commentators have suggested
that crucial fundamental international norms of universal acceptance may constitute
jus cogens as well.34International norms of this kind could be considered the norm of
pacta sunt servanda as well as notions that are related to the protection of state
sovereignty and state equality. If we accept this alternative conception of jus cogens,
massive violations of human rights that could constitute jus cogens norm are at the
same position as state immunity which could equally constitute jus cogens, if it is
considered to be a norm that protects the principle of state equality. In this case is it
reasonable to have a secondary hierarchy of norms in the jus cogens context?
Moreover, the explanation on how a state loses its immunity is a critical element of
the normative hierarchy theory. Two different and interrelated explanations are offered
in literature. In one case, a state is said to waive or forfeit its entitlement to immunity
by implication when it commits a jus cogens violation. 35 This case is totally
unconvincing since, as it is stated above, the concept of jus cogens is quite uncertain
and its interpretation is up to the court, when a conflict between state immunity and
human rights violation rises up. It is not logical to say that a state loses an expression
of its own sovereignty for a violation that does not constitute a priori a universal jus
cogens norm but under circumstances could be granted of this status by the ad hoc
interpretation of the court. This is the reason why no provisions for waiver of
immunity for jus cogens violations have been included in any national or international
legislation, except from the U.S legislation. According to the second explanation, state
conduct that violates a jus cogens norm is said to fall outside the category of protected
33

See Greek Judgment I, supra note 210, at 599


See William J. Aceves, The Vienna Convention on Consular Relations, 31 VAND. J. TRANSNATL L. 257,
293 , 1998
35
See Working Group of the American Bar Association, Report, Reforming the Foreign Sovereign Immunities Act,
40 COLUM. J. TRANSNATL L. 489, 546,2002.
34

11

state conduct known as acta jure imperii, for which immunity is traditionally granted ,
when such conduct being devoid of legitimacy because it contravenes the will of the
community of nations.36This reasoning is equally unpersuasive since it implies a third
exception in the limitation of state immunity without explaining how this exception
will be safely applied. If state conduct that violates jus cogens is assertedly not jure
imperii and obviously not jure gestionis (private or commercial), then what is it? The
theory leaves us without answer.
According to my abovementioned legal considerations, there are a lot of weaknesses
to the promising normative hierarchy theory for not succeeding its purpose to remove
the obstacle of State immunity from the path of human right victims in civil
proceedings. However, I believe that re-approaching the context of state immunity
and reconsidering the conflict in human rights violation cases will lead us to an
argument that could be used successfully from human rights violation victims before
their national courts. This is exactly what I am going to present in the next part.
4. State immunity in human rights litigation: a domestic judiciary privilege
instead of a customary international rule
A basic element of the theory of normative hierarchy, as it was mentioned above,
is the assumption that state immunity in cases of human rights violations is an
entitlement of states that derives from international law. The centerpiece of the theory
is a proposed hierarchy of international legal norms, which resolves the conflict
between jus cogens and state immunity in favor of the former. So, state immunity is
either the product of a fundamental principle of international law or a rule of
customary international law.37 But is this assumption the exact context of state
immunity?
The doctrine of foreign state immunity was born out of the tension between two
important international law norms- sovereign equality and exclusive territorial
jurisdiction. The principles of territorial jurisdiction and sovereign equality work
individually to promote order and fairness in the international legal system. The
former serves to delineate each states authority to govern a distinct geographical area
of the world,38while the latter guarantees to all states, regardless of size, power, or
36

See Greek Judgment I, at note 214.


See Hersch Lauterpacht, The Problem of Jurisdictional Immunities of Foreign States, BRIT. Y.B. INTL L. 220,
1951.
38
See Andrew L. Strauss, Beyond National Law: The Neglected Role of the International Law of Personal
Jurisdiction in Domestic Courts, 36 HARV. INTL L.J.373, 1995.
37

12

wealth, equal capacity for rights under international law. The conflict of judicial state
immunity arises anytime when the authority of the forum state to adjudicate the
dispute is at loggerheads with the principle of sovereign equality.39 As it was stated in
Lotus case, in cases of human rights abuses by foreign states, adjudicatory jurisdiction
may rest on other principles of jurisdiction under public international law besides
territoriality, including nationality, passive personality, the protective principle, and
universality. The doctrine of foreign state immunity emerged from the theoretical
conflict described above, asserts that state immunity is a fundamental state right by
virtue of the principle of sovereign equality. However, I would say that we could
equally approach state immunity as an exception from the principle of adjudicatory
jurisdiction, a privilege derived by the principle of state equality.
Explaining why I should prefer to perceive state immunity as an exception from the
principle of adjudicatory jurisdiction instead of a fundamental right, derived by the
principle of sovereign equality, I would like to present the true meaning of sovereign
equality. Sovereign equality does not mean that all states are equal in any given
circumstances but that every state enjoys an equality of capacity for rights.40Capacity
for rights is the freedom and ability of state to engage in official conduct typically
associated with statehood, such as the formulation and promotion of domestic and
foreign policies, the execution of treaties and membership in international
organizations. So, practically, the principle of sovereign equality means that every
state enjoys an equal capacity of rights in relation to every other state but it does not
alter the fact that a state may exercise the rights of statehood only with respect to its
own territory and population. My previous perceptions are not to say that foreign
states should be refused immunity in all circumstances but that an entitlement to
immunity is not intrinsic to statehood.41 Thus, foreign state immunity is a privilege,
not a right, based on the principle of sovereign equality. However, this judiciary
privilege should be granted only by the forum state and after evaluating the particular
circumstances of the case.42

39

See, D.W. Bowett, Jurisdiction: Changing Patterns of Authority over Activities and Resources, BRIT. Y.B.
INTL L. 1, 4, 1982.
40
See Edwin Dewitt Dickinson, The Equality Of States In International Law, Harvard University Press,1920,
supra note 41.
41
See Island of Palmas Case (Neth. v. U.S.), 2 R.I.A.A. 829, 838, Perm. Ct. Arb. 1928.
42
See Christian Dominic, The Relationship Between State Immunity and the Jurisdiction of Courts, in
International Law Association, Documentation for the Members of the Committee on State Immunity (prepared for
the ILA Cairo Conference, 1992)

13

But the question still remains: why is it so important for human rights litigation to
conceive state immunity as a judiciary privilege instead of a fundamental right of a
state? The answer is quite simple. If state immunity is deemed a fundamental right of
statehood, then human rights litigants face nearly difficult obstacles. The state
defendant is entitled to presumptive immunity and, as we noticed in the previous part,
even the normative hierarchy theory cannot be effective because it is by no means
clear that jus cogens norms trump a fundamental state right to immunity. On the
contrary, state immunity as a judicial privilege is regulated within the authoritive
domain not of the foreign state defendant but of the forum state.
This is very important for the human rights litigation, when state immunity is
granted to a state for conduct violating human rights. The true conflict now is between
human rights protection or protection of jus cogens norms within the forum state and
the right of the forum state to regulate the authority of its judicial organs. This
movement of the conflict in domestic arena has a double effect in human rights
litigations because a) human rights protections in domestic level might be higher in
many states than in the international level, where there is only universal acceptance
for absolute protection from limited violations such as piracy, torture, slavery etc. This
can lead to domestic court decisions, where granting of state immunity will be rather
limited in cases of human rights law violations or at least will be away from the
absolute immunity trend, as it is established in courts decisions nowadays. b)
International consensus on the applicability of state immunity is not necessary to be
established. One of the main arguments, coming particularly from the international
adjudication, is the fact that state immunity remains an absolute right of a state, even
in cases where a state conduct violates jus cogens norms, since there is no exception
of this kind established in international treaty or customary law. The domestic court,
on the other hand, is not limited in granting immunity by the absence of relevant
provisions waiving immunity for massive human rights violations. It applies its
human rights protections more deliberately in such a situation so it is entirely free to
differentiate its decision from what it has been decided in a similar case by another
states court.
5. Concluding remarks
As it is obvious from the context of the paper, the state immunity is indeed a huge
obstacle for the human rights litigation, even in cases where human rights violations
constitute a violation of jus cogens norm. The uncertain status of state immunity in
14

the international treaty and customary law has made the development of this doctrine
slow and ambiguous as well. The acceptance of the concept of restrictive immunity
historically applies in cases where the state conduct has a commercial character while
in the rest of the cases the absolute immunity is the law. However, several changes in
human rights litigation have been made lately, particularly in cases of war crimes
during the World War II. Domestic courts, having been influenced by the
developments of the field of personal immunities, have seriously considered and
sometimes accepted the concept of non granting immunity to a state for state conducts
that violate jus cogens. On the other hand, the international fora still remain loyal to
the trend of absolute immunity.
The normative hierarchy theory has been a basis for justifying the non granting of
immunity in case of jus cogens violation by putting the universal acceptance of jus
cogens in the centre. According to this theory, jus cogens is the only legal norm
accepted by all states and in case of conflict with a customary law the former should
prevail. However, the plain character of jus cogens in international legal order is a
weak element that makes the theory difficult to apply. For this reason, a more
practical argument for justifying the non immunity of states in human rights
litigations should be adopted. The basis of the argument proposed by the current paper
in order to resolve the problem is that state immunity can be considered as a judicial
privilege of the forum state instead of being a fundamental right based on a vague
customary international rule. Thus, domestic judicial institutions are to decide adhoc
for the granting or not of state immunity, when fundamental human rights have been
substantially violated.

References
Books and Articles

Aceves William J., The Vienna Convention on Consular Relations, 31 Journal of


Transatlantic Law, 1998
Belsky Adam C., Merva Mark, & Roht-Arriaza Naomi, Comment, Implied Waiver
Under the FSIA: A Proposed Exception to Immunity for Violations of Peremptory
Norms of International Law, 77 California Law Review 365 (1989).

15

Bergen Joseph G., Note, Princz v. The Federal Republic of Germany: Why the Courts
Should Find That Violating Jus Cogens Norms Constitutes an Implied Waiver of
Sovereign Immunity, 14 Connecticut Journal of International Law, 1999.
Bowett D.W., Jurisdiction: Changing Patterns of Authority over Activities and
Resources, British Yearbook of International Law 1, 4, 1982.
Brownlie Ian, Principles Of Public International Law , 5th Ed., Oxford University
Press, 1998
Crawford James, International Law and Foreign Sovereigns: Distinguishing Immune
Transactions, 1983, British Yearbook of International Law.
Dellapenna Joseph W., Foreign State Immunity in Europe, 1992, New York
International Law Review.
Dickinson Edwin Dewitt, The Equality of States In International Law, Harvard
University Press, 1920
Dominic Christian, The Relationship between State Immunity and the Jurisdiction of
Courts, in International Law Association, Documentation for the Members of the
Committee on State Immunity (prepared for the ILA Cairo Conference, 1992)
Fox Hazel, The Law of State Immunity, 2nd edition, Oxford International Law Library,
2008.
Gavouneli Maria & Bantekas Ilias, Case Report: Prefecture of Voiotia v. Federal
Republic of Germany, 95 American Journal of International Law 198 (2001).
Gavouneli Maria, War Reparation Claims and State Immunity, 50 Revue Hellnique
De Droit International 595 (1997)
Johnson Thora A., Note, A Violation of Jus Cogens Norms as an Implicit Waiver of
Immunity under the Federal Sovereign Immunities Act, 19 Journal of International
Law & Trade , 1995.
Lauterpacht Hersch, The Problem of Jurisdictional Immunities of Foreign States,
British Yearbook of International Law 220, 1951.
Pepper William, Iraqs Crimes of State Against Individuals, and Sovereign Immunity,
18 Brooklyn Journal of International Law, 1992
Reimann Mathias, A Human Rights Exception to Sovereign Immunity: Some Thoughts
on Princz v. Federal Republic of Germany, 16 Michigan Journal of International Law,
1995
Robinson D., The impact of the human rights accountability movement on the
international law of immunities, 2002, The Canadian Yearbook of International Law.

16

Strauss Andrew L., Beyond National Law: The Neglected Role of the International
Law of Personal Jurisdiction in Domestic Courts, 36 Harvard International Law
Journal, 373, 1995.
Working Group of the American Bar Association, Report, Reforming the Foreign
Sovereign Immunities Act, 40 Columbia Journal of Transatlantic Law, 2002
Judicial Decisions

The Parlement Belge, Philadelphia Court decision, 1880.


Spanish Government vs Lambege et Pujol, Cassation Court of Detroit, 1849
Island of Palmas Case (Neth. v. U.S.), 2 R.I.A.A. Permanent Arbitration, 1928
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),
Judgment, ICJ Reports 2002.
Areios Pagos, Prefectures of Voiotia Judgment n. 6/2002 of 17 September 2002,
Epetirida Institoutou Diethnon Spoudon, 2002.
Civil Multi-member Court of Livadia, Judgment 137/1997 of 30 October 1997,
Nomiko Vima , 1998.
Ontario Superior Court of Justice, Bouzari v. Islamic Republic of Iran, 1 May 2002.
Corte di Cassazione, Ferrini v. Repubblica Federale di Germania, no. 7791,
15/4/2005.
McElhinney v. Ireland [GC] (App. no. 31253/96), ECHR Reports of Judgments and
Decisions 2001-XI.
Al-Adsani v. the United Kingdom [GC] (App. no. 35763/97), ECHR Reports of
Judgments and Decisions 2001 XI.
Jurisdictional Immunities of the States, Federal Republic of Germany vs. Italy
intervening Greece, ICJ Reports, February 2012.

17