The plea of State immunity relates to the State as a person in law. The Montevideo Convention of 1933 on the Rights and Duties of States, Article 1 provides that:
A State as a person of international law should possess a permanent population, a defined territory, a government and the capacity to enter into relations with other States.1
This definition shows that a State is a person of the international legal order, not of the system of domestic law where a litigant may seek to sue it. It also gives the essential elements of a territory, a population, and an independent government which make up a State. But it does not explain the relationship between States, their interdependence based on the principles of equality and independence in international law. These are well set out in the Declaration on Friendly Relations as follows:2
All States enjoy sovereign equality and independence. They have equal rights and duties and are equal members of the international community, notwithstanding differences of an economic, social, political or other nature.
Among the elements stated by the Declaration as included in this sovereign equality are that States are juridically equal, and that each State has the duty to respect the personality of other States and to comply fully and in good faith with its international obligations and to live in peace with other States. In addition, each State enjoys the independent exercise internally of supreme authority over persons and acts (the territorial and personal authority) and externally the liberty to conduct its affairs whilst enjoying respect for its territorial integrity and political independence.
Whilst in consequence States enjoy equality in their international relations, the restriction which these attributes of independence and equality place on the exercise of authority of one State within its own national municipal law system over the activities of another State is given effect in the plea of State immunity (sometimes described as the plea of foreign sovereign immunity).
It is precisely the evolution and reformulation of these international law principles of equality and independence and the consequent change in the extent of State immunity as a plea barring the bringing of proceedings against a foreign State in national courts that this chapter is designed to examine. It does so by analysing that evolution during the last 200 years using three models: the First Model, the absolute doctrine, is concerned with the immunity from proceedings in national courts by reason of the independent status of the foreign State; the Second Model, the restrictive doctrine, traces the limitation of immunity to the State’s exercise of public powers as contrasted with its engagement in private relations; and the Third Model, immunity as a procedural exclusionary plea, looks at the recasting of immunity as a procedural exclusionary plea in the presentation of a claim against a foreign State in a national court. The Third Model examines the developments from 1990 onwards regarding the changing social and political values of the international community and their application in the International Court of Justice (ICJ), the European Court of Human Rights (ECtHR) and national courts as they affect the application of the plea of immunity to produce an exclusionary effect as regards the internal rules which govern its position in the presentation of a claim against a foreign State.
In this First Model, international society was conceived as being made up of competing sovereign States enjoying bilateral relations with each other. Internal exclusive competence coupled with external equality with and independence from other States were the hallmarks of the Westphalian State system.3 Bodin in the Republic provided the theory necessary to underwrite this system. He centralized governmental power, located it in the Westphalian State, conferred legal personality upon the State which distinguished it from the other overlords, and vested in it the powers, rights, and privileges previously scattered among feudal, guild, and other relationships. Grotius’ writings added the external aspects to this concept of the State; he provided the framework adopted by Lawrence, Phillimore, Hyde, and Wharton for an international community based on equal and independent States exercising within their territories exclusive sovereign powers and observing a rule of non-intervention in the domestic affairs of other States. Immunity can be seen as a useful device to reconcile these two aspects, insulating the power to administer and to operate the public service of one State from interference by another State and its courts. There can be little doubt that the early American and English decisions are based on the Westphalian model of the State, and of the international community as an inter-State society; they reflect the view of Bodin and Austin of the sovereign legislative power vested in the State and the consequent inability of another State to subject it to scrutiny.
The international law principles of independence and equality of States recognize this underlying political reality restricting the use of force against another State and its property, and give it expression in legal terms as the lack of competence of one State to exercise jurisdiction over another State. Independence provides a justification for the absolute rule of immunity, and remains a justification for the restrictive rule which restrains the forum State from adjudicating acts in the exercise of sovereign power, jure imperii of another State. It is expressed in the maxim par in parem non habet imperium: one sovereign State is not subject to the jurisdiction of another State. This ground was recognized by de Bar in his 1891 report to the Institut de Droit International, repeated in 1926 in the report made to the League of Nations Committee of Experts for the Codification of International Law, and restated in the explanatory report accompanying the adopted text of the European Convention on State Immunity in 1972. The report enquiring into the competence of the courts in regard to foreign States made to the League of Nations Committee of Experts stated the principle as follows:
The question whether a State may, in any respect, be subject to the jurisdiction of the courts of another State is connected with the right of States to independence. In other words, are the courts of one State competent to decide disputes to which another State is a party?
That the courts of one State are not competent with regard to another State is unanimously recognised when the foreign State is called to justice on account of acts committed by it, in the exercise of its sovereignty, to ensure the general administration of the country and the working of its public services.4
Lack of competence as a basis of immunity is readily recognized in civil law countries, since their courts, being courts of limited competence over private persons, acknowledge the absence of jurisdiction over other States. A plea of State immunity is therefore a signal to the forum court that jurisdiction belongs to another court or method of adjudication. Thus, the French Cour de Cassation decided in 1849 in an action brought by Lambege and Pujot against the Spanish government for payment in respect of a purchase of army boots, that it had no competence to hear the suit:
un gouvernement ne peut être soumis pour les engagements qu’il a contracté à la juridiction d’un Etat étranger qu’en effet, le droit de juridiction qui appartient à chaque gouvernement pour juger les différends nés à l’occasion des actes émanés de lui est un droit inhérent à son autorité souveraine, qu’un autre gouvernement ne saurait s’attribuer sans s’exposer à altérer leurs rapports respectifs.5
That this was the rcognized position in civil law of the Austrian courts was confirmed by the Supreme Court of Austria in 1950: ‘The older practice of all countries was to exempt Foreign States from the municipal jurisdiction, the exceptions being at the most actions in rem and voluntary submission to the jurisdiction’.6 Similarly the German Federal Constitutional Court declared in 1963, ‘Until 1945, Germany was among the States whose courts granted absolute immunity, which meant immunity in respect of claims under private law as well’.7 The ECtHR in 2001 acknowledged that ‘sovereign immunity is a concept of international law, developed out of the principle par in parem non habet imperium, by virtue of which one State shall not be subject to the jurisdiction of another State’.8
In common law countries greater stress is placed on the forum State’s own jurisdiction, and independence and equality as attributes of the State are used to justify restricting that jurisdiction. Consequently, stress is placed on the respect for the dignity of the foreign State and for reciprocity of treatment of States as the ground for immunity. The early cases dealt with personal sovereigns to whom honour and respect were accorded appropriate to their position. Indeed, Hersch Lauterpacht attributes the emergence of State immunity to the requirements of respect for dignity and reciprocal treatment which the numerous German States and Principalities observed in their mutual relations in the eighteenth century. Nineteenth-century decisions extended these requirements to the modern State. In the leading English and US cases these attributes are given as the ground on which the territorial State must waive its jurisdiction and grant immunity to the foreign State, its representatives, and public ships of war. For example, Brett LJ in the case of Le Parlement Belge9 declared that a State’s refusal to exercise territorial jurisdiction over the person of the sovereign, his ambassador, or over public property destined to public use though it be within the territory was a ‘consequence of the absolute independence of every sovereign authority and of international comity which induces every sovereign State to respect the independence and dignity of every other sovereign’ (at 212).
Inherent in the recognition of the foreign State’s independence is an acknowledgement that it alone is responsible for the determination of its policy and conduct of its public administration, and that courts should refrain from hampering the foreign State in the achievement of these purposes.10 Thus, in The Schooner Exchange v McFaddon, contrasting the position of private individuals and merchant vessels who may claim no like exemption, Marshall CJ stressed that a State might have many and powerful motives for preventing one of its warships from being defeated by interference. ‘Such interference cannot take place without affecting his power and dignity.’11
In the classical system breaches of international law and complaints by one State against another are dealt with by State responsibility on a bilateral basis with reparation sought by the claimant State against the State charged with breach; ‘… whilst within the State, sovereignty denotes the supreme and unlimited power of the State, in its external aspect, the sovereignty of State is confronted with the equal sovereign status of other States and responsibility is the inevitable regulatory mechanism through which that conflict is mediated’.12
Under classical international law, diplomatic protection ‘is a procedure for securing the responsibility of the State for injury of a national flowing from an internationally wrongful act’13 and the exhaustion of the local remedies available within the territory of the alleged wrongdoer State is a precondition of the espousal by means of such diplomatic protection of the claims of individuals by the State of their nationality. According to the ILC’s Draft Articles on Diplomatic Protection, ‘local remedies means legal remedies which are open to the injured person before the judicial or administrative courts or bodies, whether ordinary or special, of the State alleged to be responsible for causing the injury’ (Article 14(2))14 and the obligation to exhaust such remedies arises ‘where an international claim or a request for a declaratory judgment related to the claim is brought preponderantly on the basis of an injury to a national’ of another State (Article 14(3)). The rule has been recognized as one of customary international law by the ICJ15 and ‘ensures that the State where the violation occurred should have an opportunity to redress it by its own means, within the framework of its own domestic system’ (ILC Commentary to Article 14(1)). The burden of proof to show local remedies are exhausted or unavailable is upon the espousing State.16
Immunity plays a part in this procedure for the espousal of claims.17 To permit the adjudication of a claim made against one State by an individual in the municipal court of another State defeats the requirement of exhaustion of local remedies and deprives the wrongdoer State of the opportunity to settle the claim by a method of its own choice. Immunity gives effect in municipal law to this precondition for the attribution of State responsibility.18
In addition to barring the court of the forum State from inquiring further into the claim, immunity removes the claim to another process of settlement at the choice of the alleged wrongdoer State and not necessarily by means of a court of law.
The immunity of the foreign State has been justified by analogy, either by reference to its immune position under its own home law, or by reference to the protected position of the forum State under its national laws. Analogy by reference to a favoured position in the home State would seem more an argument in favour of assumption of jurisdiction elsewhere than against; if there is no remedy at home for the individual plaintiff, it surely becomes the more imperative for the forum State’s courts to provide one. But the assumption of jurisdiction cannot be by decision of a single morally offended State; it requires consent of the other State whether by waiver of immunity or some prior commitment in treaty. Analogy by reference to the favoured position of the forum State has perhaps a stronger moral basis since there would seem an absence of fair play if a foreign State were to be subjected to local court jurisdiction which was not available against the forum State itself.
Conferment of a protected status equal to that enjoyed by the forum State is a strong argument in favour of State immunity so long as the forum State enjoys a special position before the law. In England the enactment of the Crown Proceedings Act 1947 heralded the beginning of a progressive dismantlement of the privileges enjoyed by the forum State. That process is a complicated one, and is very much dependent on the common law niceties relating to particular office-holders and their regulation. Much has now been swept away, so that today the liability of central government in private law broadly differs little from that of an individual litigant of full age and capacity. The development of judicial review into a penetrating instrument for ensuring transparency of decision-making by public authorities has also increased the legal accountability of government. But leading cases of the last decade—including the Factortame case concerning the legality of an injunction in respect of primary legislation, and M v Home Office regarding the making of a contempt order against a Minister of the Crown—illustrate the tenacious survival of the prerogatives of the Crown.19
Internal reform of the forum State and changes in the control and review of the exercise of public powers are matters relating to the constitution of a particular State, and have no direct relevance to the accountability of a foreign State before its courts. But while logically the extraneous position of the foreign State prevents any true analogy with that of the forum State, it has to be recognized that the public in the process of securing standards of performance of their home government are less willing to be denied their application to foreign regimes.20
The arguments so far deployed all justify immunity from the position of the State, either as an international person entitled to equality and independence or as a constraint on the forum State’s entitlement to exercise jurisdiction. Jennings and Watts in the ninth edition to Oppenheim questioned the arguments based on the sovereignty and independence of the State as supplying a satisfactory basis for the doctrine of immunity:
… There is no obvious impairment of the rights of equality, or independence, or dignity of a State if it is subjected to ordinary judicial process within the territory of a foreign State—in particular if that State, as appears to be the tendency in countries under the rule of law, submits to the jurisdiction of its own courts in respect of claims brought against it. The grant of immunity from suit amounts in effect to a denial of legal remedy in respect of what may be a valid legal claim; as such, immunity is open to objection.22
How valid are the grounds advanced in support of the First Model for upholding State immunity today?
‘Independence’, taken literally, is not in fact observed in the operation of any rule of immunity. Since even the absolute doctrine admitted exceptions to immunity for immovables located in the forum territory, claims relating to succession, and claims concerning trusts, it is difficult to maintain that the independence of States is lost by the introduction of exceptions. In Rahimtoola v Nizam of Hyderabad Lord Denning gave short shrift to the argument based on a State’s dignity: ‘It is more in keeping with the dignity of a foreign sovereign to submit himself to the rule of law than to claim to be above it, and his independence is better ensured by accepting the decisions of courts of acknowledged impartiality than by arbitrarily rejecting their jurisdiction’.23
Nevertheless, independence and the concept of the sovereign equality of States both derive from the underlying rule that there can be no independent settlement of a State’s disputes without its consent; a rule emphatically demonstrated by the consensual jurisdiction of the ICJ. In consequence, even today, as the ICJ has stated: ‘… the rule of State immunity occupies an important place in international law and international relations’.24
However, one important aspect in the relations between independent States has so far been overlooked, the inability of a national court to enforce its judgments against a foreign State. This inability remains even today the outstanding reason for the retention of immunity, as demonstrated by the fact that a separate immunity from execution is afforded to States and largely remains an absolute bar on enforcement of judgments against State property (see Chapter 15). This inability is partly legal and partly factual. The application by one State of forcible measures of constraint against the conduct or property of another State is an unfriendly act generally prohibited by international law, except where that State has itself contravened international law. Thus exceptionally, under Chapter VII of the UN Charter in respect of threat to or breach of international peace and security, the UN Security Council may authorize the application of sanctions against a State, and those sanctions may take the form of national measures of constraint against a State’s property, as with the UN-ordered block of Iraq’s assets following the invasion of Kuwait. Such orders may also be made to protect a State which itself is disabled, as with the freezing orders in respect of assets of the State of Kuwait. Unilateral countermeasures against another State may only be taken by way of reprisal against another State for violation of international law, such as the US freezing of assets in response to the seizure of US diplomats by Iran in 1979, and the UN’s authorization of a no-fly zone over Libya by Security Council Resolution 1973 (2011) of 17 March 2011.
The basis for a rule of absolute immunity from execution therefore derives, legally, from the rule of non-intervention in the internal conduct of the State’s public functions—à ne rien faire que soit susceptible d’entraver le fonctionnement des services publiques du dit Etat, reflected in Article 2(7) of the UN Charter—and factually, from the practical impossibility, short of invasion or war, of forcing a State to do what a court may order. It cannot be ignored that lack of means of forcible enforcement remains the underlying political obstacle and hence the justification for a legal plea that avoids forcible confrontation between States. Even where attachment of foreign State assets located in the forum State is legally possible, the political consequences to the friendly relations of the forum State with the foreign State may discourage the forum State’s support for such enforcement.25 The political nature of immunity from execution is well illustrated by the Italian government’s enactment of a law referring all decisions on enforcement against foreign States to the Minister of Justice after the Cour de Cassation had ruled that attachment of State assets in certain circumstances was legally permissible.26 In effect, this first ground discloses strong policy reasons quite apart from legal constraints which underlie an absolute doctrine of State immunity. In a much-cited attack on the absolute rule of immunity, Professor Hersch Lauterpacht in 1952 recognized the strength of this first ground, but did not attempt to counter it by legal argument. Arguments, he ruefully admitted:
drawn from the general inability of the judicial power to enforce its decisions in cases of this description, from the consideration that the sovereign power of the nation is alone competent to avenge wrongs committed by a sovereign, that the questions to which such wrongs give birth are rather questions of policy than of law, that they are for diplomatic rather than legal discussion, are of great weight and merit serious attention.27
The absolute doctrine of State immunity applied in the First Model was based solely upon the bilateral relationship which arose in proceedings before the court of one State in respect of the exercise of jurisdiction over another equally independent State. At the beginning of the twentieth century, with the State’s increasing engagement in trade there came to be questioned the grant of immunity in respect of the business activities of the foreign State. As early as 1891 the Institut de droit international declared that a suit might be brought against a foreign State in respect of
Les actions qui se rapportent à un établissement commercial ou industriel ou à un chemin de fer, exploités par l’Etat étranger sur le territoire …
In the League of Nations Report referred to earlier the Rapporteur after setting out the conflicting views as to the absolute nature of State immunity held by jurists and evidenced by State practice declared that
… there can be no doubt since the last century the activities of the State in the economic, financial and industrial spheres have developed to such an extent as to render it an increasingly common occurrence for it to come into contact with private individuals particularly in regard to large undertakings. In these circumstances it might be just to recognise that there are cases in which acts done by a foreign State and leading to a dispute ought to be treated by the law as acts of a private individual …
but despite the endeavours of certain lawyers and judges ‘to provide a more rational theory’ the Rapporteur found that it was ‘hard to extract any definite or precise conclusion which could be used as the basis for a uniform arrangement to be concluded between the Powers’.28
This divergence of opinion and its expression in two theories, ‘the absolute State immunity … which has developed out of the principle par in parem non habet imperium …’ and relative State immunity ‘… which is tending to predominate on account of the requirement of modern conditions …’ persisted until the 1970s when the European Convention on State Immunity adopted the restrictive theory by setting out in Articles 1 to 14 exceptions to the foreign State’s immunity from adjudication.
The relevance of the private individual to the scope of the plea of State immunity was expressly noted in the Commentary to this Convention; commenting on the removal in Article 4 of immunity in respect of proceedings relating to an obligation of a foreign State which by virtue of a contract, falls to be performed in the territory of the forum State, the Commentary openly stated that: ‘The Convention is intended to improve the legal position of individuals in their relations with States. It is not concerned with the protection of one State against another’ (para 29).
The concept of the socialist State, first given political form by the USSR, had a profound effect on the evolution of State immunity and curiously produced two diametrically opposed ideas of the protection required from immunity. The Soviet State by assumption of all economic as well as political power and by the abolition of private property and the profit motive denied any distinction between its activities which could permit a restriction on its entitlement to absolute immunity. But the concept of the socialist State had the opposite effect in France and other civil law systems. Whereas the State confined to its traditional functions of defence and maintenance of law and order seemed a suitable beneficiary of the absolute doctrine, it was clearly necessary to introduce some limitation to immunity where the State claimed to encompass every type of activity within its frontiers. The bilateral agreements negotiated between Western European States and the USSR, by which the latter waived its immunity and that of its Trade Delegation and submitted disputes relating to commercial matters to the local courts, hastened this recognition by civil courts that the adoption of a restrictive doctrine was required if justice was to be done.
Absolute immunity was afforded to a foreign State in the First Model on the basis that a clear distinction was to be drawn between the rights accorded to private individuals under municipal law and the public powers of States under international law.29 Until after the Second World War the English and US courts, greatly influenced by ‘Dicey’s view that administrative law was incompatible with the rule of law, common law and constitutional liberty’,30 made no distinction between the purposes for which a power was exercised by the central government of a State and consequently applied State immunity to bar proceedings brought against a foreign State in respect of all its transactions, including those of a commercial nature. The position was otherwise in the civil law; by adopting the criterion which distinguished the separate system of administrative courts from the civil private law courts in France under the Code Napoléon and subsequently in other European countries, the civil law courts were able to draw a distinction between the exercise of regulatory and coercive powers of the State from private law transactions of the private individual. In consequence the nature of the act was adopted as the criterion to determine the application of foreign State immunity, with immunity continuing for acts in exercise of sovereign authority, jure imperii but being withdrawn from acts of a private law or commercial nature, jure gestionis.
The search for and use of a distinction between public and private activity, between the exercise of governmental and non-governmental powers, is not unique to the law relating to State immunity. The exercise of public powers, as opposed to the engagement in private relationships, has been a constant theme in political theory and is used as a justification in many branches of the law other than that relating to State immunity.
English law recognizes an analogous distinction between public and private in a number of areas of the law: in administrative law,31 in the exceptional situation where a court may award exemplary damages,32 in the plea of public immunity relating to discovery of documents, and in the enforceability of private rights derived from written constitutions. Analogous distinctions are also found in other legal systems. Thus the enforcement of unimplemented EC directives are restricted in their scope to the State and its emanations,33 the construction of ‘civil matters’ in the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters as excluding ‘acts relating to the exercise of public powers’ by the State,34 a cause of action for acting in a way which is incompatible with the human rights set out in the European Convention of Human Rights is given under section 7 of the Human Rights Act 1998 against a public authority, but not a private person.35 In international law acts of State organs and of persons or entities exercising ‘elements of governmental authority’ may be attributed to the State for purposes of State responsibility.36 In the US a doctrine of ‘State action’ has developed in American constitutional law for the purposes of the first section of the fourteenth Amendment.37 The French system recognizes the special position and powers of the State, that the needs of the administration differ from those of the private individual and require special powers by which to govern the country. One could devote many chapters to the study of the other branches where use of a public/private divide between activities to be regulated and the powers to regulate them has been made. Although as a note of caution the comment of Bingham MR in applying the distinction to a question relating to exemplary damages should be borne in mind: ‘We are here concerned with a judge-made principle of domestic private law devised to address a particular aspect and other rules arising in different contexts seem to me to have little bearing’.38
Practically, however, this conjunction, or conceptual opposition, produces great uncertainty as either rationale can be used to justify a decision for or against the foreign State. ‘The standard way to establish the needed balance between the conflicting sovereignties is to make use of the distinction between the foreign sovereign’s “public” and “private” acts.’ But this has tended to be unhelpful and has given rise to a varying jurisprudence. The problem is once again that the distinction and the way it is applied rests ‘on political assumptions as to the proper sphere of State activity and of priorities in State policies’ which cannot easily be contained in formal rules. As Crawford notes, although there may be consensus on restrictive immunity, we still: ‘lack a rationale, a connected explanation, for this state of affairs … which would enable us to draw the distinction between cases in which States … are entitled to immunity … and cases in which they are not’.39
Under the absolute doctrine the express consent of the foreign State to proceedings in a national court was recognized to constitute waiver. In the Second Model a State’s voluntary undertaking of a business of the same kind as carried on by a private person was seen particularly in Italy, Belgium, and the mixed courts of Egypt as such a consent and as a basis for the removal of immunity. Three legal techniques were combined in construing conduct in relation to a commercial transaction as constituting consent to civil proceedings in the courts of another State and the consequent waiver of immunity by the foreign State: consent of the State to the local jurisdiction construed by its engaging in a transaction on that basis;40 conduct of a business the commerciality of which distinguishes it from the more usual activity of a State for the public benefit, and engagement in that business with and in the manner of a private person; the private law nature of the transaction engaged in by the foreign State supplying additional evidence that it voluntarily intended to subject itself to the national court. Thus introduced by way of implied waiver, we find the two tests most frequently employed to determine the non-immunity of a transaction: private law character and commerciality.41
Where a State undertakes commitments of a private law nature there would seem no good reason why any dispute arising from such commitment should not be determined by ordinary courts of law. Lord Wilberforce reformulated the justification of the doctrine in its restrictive form as follows:
It is necessary to start from first principle. The basis on which one State is considered to be immune from the territorial jurisdiction of the courts of another State is that of ‘par in parem non habet imperium’, which effectively means that the sovereign or governmental acts of one State are not matters on which the courts of other States will adjudicate.
The relevant exception, or limitation, which has been engrafted on the principle of immunity of States, under the so-called restrictive theory, arises from the willingness of States to enter into commercial, or other private law, transactions with individuals. It appears to have two main foundations: (a) it is necessary in the interests of justice to individuals having transactions with States to allow them to bring such transactions before the courts; (b) to require a State to answer a claim based on such transactions does not involve a challenge or inquiry into any act of sovereignty or governmental act of that State. It is, in accepted phrases, neither a threat to the dignity of that State nor any interference with its sovereign functions.42
But this leaves an area of State activity where immunity should still be available. Sir Robert Phillimore was one of the first to challenge the absolute theory of immunity but in doing so he stated the principle justifying the grant of immunity:
The object of international law, in this as in other matters, is not to work injustice, not to prevent the enforcement of a just demand, but to substitute negotiations between governments, though they may be dilatory and the issue distant and uncertain, for the ordinary use of courts of justice in cases where such use would lessen the dignity or embarrass the functions of the representatives of a foreign State.43
The authority of the sovereign State has been progressively diminished both externally and internally; externally by the Balkanization of States by the process of decolonization, the break-up of federations—compare the 51 States who signed the UN Charter to the 193 members of UN in 2013—and the increase in cross-border activities—trade in humans, drug cartels, arms trafficking—which require transnational regulation. Internally, in recent decades a considerable process of dismantling of the centralized powers of the State can be observed. The devolution to Scottish, Welsh, and Northern Ireland Assemblies of powers previously concentrated in the unitary UK Parliament is one example of the dismantling of the internal sovereignty of central government; the recognition of ethnic or religious communities which seek their own identity and system of laws—a value to which the EU’s concept of subsidiarity gives weight—provides another.44 External sovereignty based on independence is also seen as a restriction on regional and global effectiveness. The pooling of State resources in a regional entity may secure economic and social advantages lost where business and citizens are confined to operating within national boundaries; in the extreme case of the European Union, the regional institutions become the guardians of the common regional goals and have acquired regulatory powers with direct effect on individuals within the member States.
Despite these developments, certain characteristics common to the State continue to be identifiable.45 A first characteristic is the stability of the major States whose regulatory powers still ensure their ability to make and enforce laws including the requirements of international law, effectively within their territories. The maintenance of an army and a police force are enforcement aspects of this power. A second characteristic, by reason of the regulatory power, is the control over the economy and natural resources also centred in the State; the economic health of the country is largely dependent on the decisions and activity of the State and its government. A third distinguishing feature is the exercise of these regulatory powers for the public good, and not for personal profit. Support for the retention of immunity for public acts ‘in exercise of governmental authority’ is provided by constitutional and public lawyers who question the legitimacy of replacing the standards of national law by international standards which lack democratic endorsement. Democratic accountability ensures that the causes which the State espouses are truly in the public interest; unlike the self-serving nature of the private sector, government acts altruistically solely to achieve within the constitutional powers conferred upon it the public good.46 Harlow sees the democratic deficit of international institutions as an obstacle to the removal of immunity enjoyed by the regulatory powers of the State with its system of both internal and external administrative checks. She asks why a ‘global administrative law’ should be substituted for democracy and the rule of law; why should a transnational jurisdiction weakly legitimated by a governance of experts—‘transnational networks of government officials into self-serving coteries’, a ‘juristocracy’ or ‘government by judges’, be allowed to trump the strongly legitimated law of the nation State?47
After 70 pages of description of the State’s loss since 1945 of powers internally and externally, Jean Salmon, nonetheless, concludes that the State continues to enjoy ‘une caractère irremplaçable’ with its advantages as a stable international structure, an institution indispensable for the application of international law in its territory and one which is the best adapted to regulate relations with its neighbours; he concludes that, provided it remains democratic, the State serves best to express the collective interests of its population and to give effect to their politial, economic, and social requirements.48 To similar effect, Oscar Schachter, observing that ‘the resilience of the State system for the past three centuries signifies more than the strength of governing elites’, sums up the characteristics of the State described above as follows: ‘The critical fact is that States alone have provided the structures of authority needed to cope with the incessant claims of competing societal groups and to provide public justice essential to social order and responsibility’.49
The first two models of State immunity reflect ‘the strictly private/civil law approach, exclusively relating to inter-State relations’, which corresponds well with the demands of the ‘Westphalian international society characterized by the presence of competing sovereign States …’.50 Even the Second Model of the restrictive doctrine largely maintains this bilateral nature of the relationship between States with the justification for the exceptions to immunity derived more from the private law and commercial or civil law nature of the transaction rather than the inherent status of the private individual as a party to such transactions.
In the second half of the twentieth century and in particular since 1990, the scope of international law and the requirements of responsibility which it imposed appeared to be in a phase of radical expansion; this has been accompanied by a shift from the bilateralism of rights to a vertical hierarchy. The obligations of the State have extended to include those owed to the international community as a whole; and obligations owed to individuals have broadened through a network of human rights treaties. The desire to end impunity and to provide redress to victims has been expressed in the establishment of international criminal courts and tribunals and the exercise of universal jurisdiction by national courts. Such developments have suggested a concomitant restriction on the scope of State immunity. These developments were welcomed by proponents of the restrictive doctrine as heralding a further restriction of State immunity so as to permit claims to be brought in national courts against a State for injury committed, not solely in respect of commercial transactions, but in a wider field.
Contrary to such expectations, the Third Model of State immunity appears to be moving into a more exclusionary phase with its application confined to a Procedural Plea in the presentation of a claim against a foreign State in a national court.
The thinking behind the Third Model has been exemplified by the ruling of the ICJ in the Jurisdictional Immunities case. That case concerned Germany’s claim before the ICJ that Italy was in breach of international law by reason of the Italian courts’ denial of immunity to Germany in proceedings relating to war damage caused by German armed forces in 1943–45. Germany alleged that this breach of Italy related to the denial of German immunity from adjudication by the Italian courts as well as the denial of German immunity from enforcement by orders of the Italian court enforcing judgments of Italian and Greek courts in respect of German government property in Italy. Italy responded by supporting her claim with three strands of argument: first, that there is no immunity in international law when a State has committed serious violations of international humanitarian law amounting to war crimes and crimes against humanity; secondly, that there is no State immunity for violations of norms of jus cogens character; thirdly, that the denial of immunity is justified because all other attempts to obtain reparations for the victims had failed.51 The ICJ in deciding against Italy’s claim dismissed all three arguments and further also rejected Italy’s contention that the combined effect of the three lines justified an exception to State immunity. In doing so the ICJ based its reasoning on the straightforward exclusionary proposition that the plea of immunity was a procedural plea independent of the issues raised in the Italian claim relating to State responsibility and their determination. The Court stated:
The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful (para 93).
This ruling has a broader reach than the Court’s decision to dismiss Italy’s claim to war damage,52 and reflects in some respects a general retreat from the expansive tendency of the Second Model. The Third Model described here seeks to represent the likely outline of that retreat.
A further account and analysis of the ICJ Jurisdictional Immunities judgment and its significance for the future will be found in Chapters 6, 9, and 19; here it will only be referred to in tracing State practice’s reception of the development in international law. This section therefore contains an account of the challenges which change from a bilateral system to a vertical structure and its manifestations present to the retention of State immunity as a bar and some account of the extent to which State practice has modified or endorsed such change. Finally, a critical assessment of the impact of the ICJ’s Jurisdictional Immunities judgment is made and indications provided as to the way forward.
The view of international law as a vertical hierarchical structure of law with obligations ‘owed to the international community as a whole’53 is supported by a number of concepts—jus cogens norms, erga omnes obligations, universal jurisdiction, and reparation for victims. As will be set out below, these four concepts have largely failed to obtain support in State practice and have not in fact operated to restrict the scope of State immunity. This may be contrasted with the traction that these concepts have attained with respect to the setting aside the immunity of State officials, in particular the exercise of criminal jurisdiction by international tribunals over State officials with their status recognized as no defence to the criminal liability and the increased willingness of national courts to remove immunity ratione materiae for human rights violations when officials are no longer in office (see Chapter 18).
One element in this apparent change of approach to a vertical regime was the recognition of jus cogens norms, derived from natural law, and given pre-eminence of place. Rules of jus cogens, as first articulated in Articles 53 and 64 of the 1969 Vienna Convention on the Law of Treaties (VCLT), were treated as peremptory non-derogable norms of international law. Thus, when applied to an agreement to commit a violation of a jus cogens norm these provisions of the VCLT clearly rendered it void and of no effect, but they provided no guidance as to the overriding effects of a peremptory norm on other rules of international law. Whilst such an effect might be applicable to rules which directly contradicted the substantive law containing the superior norm, its effect on rules of jurisdiction, procedure, or evidence was left in doubt; in particular whether it applied to the plea of State immunity. In the case of Al-Adsani in the ECtHR, the joint dissenting opinion of Judges Rozakis and Caflisch, joined by Judges Wildhaber, Costa, Cabral Barreto, and Vajic, however, provided one forceful view of the effect on State immunity of a jus cogens norm:
By accepting that the rule on prohibition of torture is a rule of jus cogens, the majority recognise that it is hierarchically higher than any other rule of international law, be it general or particular, customary or conventional, with the exception, of course, of other jus cogens norms. For the basic characteristic of a jus cogens rule is that, as a source of law in the now vertical international legal system, it overrides any other rule which does not have the same status. In the event of a conflict between a jus cogens rule and any other rule of international law, the former prevails. The consequence of such prevalence is that the conflicting rule is null and void, or, in any event, does not produce legal effects which are in contradiction with the content of the peremptory rule. Due to the interplay of the jus cogens rule on prohibition of torture and the rules on State immunity, the procedural bar of State immunity is automatically lifted, because those rules, as they conflict with a hierarchically higher rule, do not produce any legal effect.54
This view has not, however, attracted the support of the ICJ nor of the majority of the ECtHR in later cases. The ICJ in the Congo v Rwanda judgment on preliminary objections did not accept that the rules on jurisdiction and the jus cogens norms in issue (the prohibition on genocide) interplayed with each other. It stated that ‘the fact that a dispute relates to compliance with a norm having such a character, which is assuredly the case with regard to the prohibition of genocide, cannot of itself provide a basis for the jurisdiction of the Court to entertain that dispute. Under the court’s Statute that jurisdiction is always based on consent of the parties’.55 As the jurisdiction of other international tribunals over a State is also based on its consent, either directly or given as a party to an international convention setting up a tribunal, no question of State immunity arises and there can be no proceedings as regards the State.
On the national level, in Jones v Minister of Interior of Kingdom of Saudi Arabia56 the House of Lords applied the ICJ’s ruling in the ICJ Congo v Rwanda case and rejected a claim for damages for personal injuries inflicted by a Saudi official in a prison in Saudi Arabia. The applicant claimed that the prohibition of torture as a jus cogens rule overrode the foreign State’s immunity as it ‘generates an ancillary procedural rule which, by way of exception to State immunity, entitles or perhaps requires a State to assume civil jurisdiction over other States in which torture is alleged’ (per Lord Hoffmann, paras 44–5). But as the torture was committed abroad outside the jurisdiction of the English court, in the absence of jurisdiction, the Court applied the bar of State immunity in the UK State Immunity Act 1978, section 1. Lord Bingham stated: ‘such a prohibition does not automatically override all other rules of international law. The International Court of Justice has made plain that a breach of a jus cogens norm of international law does not suffice to confer jurisdiction’.57
In the US, an argument that a violation of international law amounting to a breach of a jus cogens norm was to be construed as an implied waiver by the defaulting State had little success: ‘the fact that there has been a violation of jus cogens does not confer jurisdiction under FSIA’.58 US courts held that the provisions in the FSIA relating to implied waiver are subject to an intentionality requirement. ‘Implied waiver depends upon the foreign government’s having at some point indicated its amenability to suit.’59 Accordingly, in claims based on human rights violations, a plea of implied waiver failed by reason of the lack of any evidence that the wrongdoer State ever indicated, even implicitly, a willingness to waive immunity for its actions.60
More recently the omission in ECSI and national statutes on State immunity in the territorial tort exception to State immunity of words restricting the injury or loss to acts committed by a foreign State jure gestionis led courts in Greece and Italy to construe the acts of the State both as a violation of jus cogens and further by reason of the infliction of personal injury or loss to property to come within the tort exception to State immunity. In Prefecture of Voiotia v Federal Republic of Germany, a majority of the Greek Supreme Court treated war damage which occurred at a time when the territory of the forum State was occupied by foreign forces in time of armed conflict, as ‘hideous murders that objectively were not necessary in order to maintain the military occupation of the area or subdue the underground action’; as such they were an abuse of sovereign power, in breach of peremptory international norms and not jure imperii; in consequence they enjoyed no immunity.61 Similarly in Ferrini, the Italian Supreme Court rejected immunity as a bar to a claim against Germany for forcible deportation and forced labour of an Italian national by German military authorities during the Second World War, concluding that the violation of fundamental human rights ‘offend universal values which transcend the interests of individual national communities’ and provide ‘legal parameters not solely to determine an individual’s criminal liability but the State’s obligation not to recognize or to lend its aid to the wrongful situation’.62 As noted above, the approach in the Italian and Greek courts has been rejected by the ICJ in the Jurisdictional Immunities case.
The ICJ found that national legislation was not conclusive as to whether the exception for personal injuries extended to the acts of armed forces during armed conflict. Of the ten States with legislation on State immunity, only two—the UK and Singapore—contained provisions excluding proceedings relating to the acts of foreign armed forces. The ICJ examined the decisions of national courts: Pinochet was dismissed as concerning the immunity of a former Head of State from the criminal jurisdiction of another State, not the immunity of the State itself in proceedings designed to establish its liability to damages. But more relevantly in McElhinney, in a decision upheld by the ECtHR, the Supreme Court of Ireland held that under international law a foreign State was immune for acts jure imperii carried out by its armed forces even when on the territory of the forum State without its permission. As for cases concerning acts allegedly committed by armed forces during an armed conflict, the ICJ found that the majority of national courts upheld State immunity. The French Cour de Cassation, for example, had consistently held that Germany was immune in a series of cases brought by claimants who were deported from occupied French territory during the Second World War. The ECtHR in Grosz v France determined that France had not breached the European Convention in such cases because it had given effect to an immunity required by international law.63 The ICJ accordingly concluded that, ‘under customary international law as it presently stands, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law or the international law of armed conflict’.64
One further area of State practice—the ECtHR’s application of the right of access to court—illustrates the limited extent to date which State practice has accorded to the manifestations of a vertical structure of international obligations. In the course of developing its practice on the right of access to court, the ECtHR considered whether the plea of immunity violated Article 6(1) which provides that ‘… in the determination of his civil rights and obligations … everyone is entitled to a fair hearing by an independent and impartial tribunal established by law’. It has recognized that Article 6(1) ‘does not give a civil right where none exists in domestic law’. And in consequence, after some debate, as occurred in respect of national law limitations to sue local authorities or the police in cases such as Z v UK and Osman v UK,65 the Court accepted that bars imposed by national law on a particular class of claimant removed substantive rights, rather than merely constituting a procedural bar to a hearing.
In three cases in which UK’s breach of Article 6(1) by reason of its court accepting immunity as a bar to national proceedings against a foreign State, it was argued that the bar in these cases arose by reason of the application of a rule of international law and was not derived from the substantive law; as stated by Lord Millet: ‘It is not a self-imposed restriction on the jurisdiction of its courts which the UK has chosen to adopt … It is a limitation imposed from without on the sovereignty of the UK itself’.66 Nonetheless, contrary to the approach of Lord Millett, in the case of an allegation of torture abroad (Al-Adsani), and of assault by a member of a foreign armed force within the forum State territory (McElhinney), the ECtHR found there to be serious and genuine disputes over civil rights relating to compensation.
However, in considering in the Al Adsani case whether State immunity presented a bar to national court proceedings in respect of torture carried out in a State prison the Court, whilst declaring that ‘the prohibition of torture has achieved the status of a peremptory norm in international law,’ observed that
the present case concerns not, as in Furundzija and Pinochet, the criminal liability of an individual for alleged acts of torture, but the immunity of a State in a civil suit for damages in respect of acts of torture within the territory of that State. Notwithstanding the special character of the prohibition of torture in international law, the Court is unable to discern in the international instruments, judicial authorities or other materials before it any firm basis for concluding that, as a matter of international law, a State no longer enjoys immunity from civil suit in the courts of another State where acts of torture are alleged.67
In its ruling the ECtHR found that, as in the case of Jones v Saudi Arabia cited above, because the jus cogens violation was caused outside the jurisdiction of the UK court, there was an absence of jurisdiction conferred upon the UK court to proceed with the hearing.
However, the ECtHR Court did not wholly reject the relevance of the alleged act as constituting a violation of the jus cogens prohibition against torture but, contrary to the argument of the dissenting judges set out above, examined the claim to see if, in the circumstances, the plea of State immunity pursued a legitimate aim and was not disproportionate to that aim:
The Court considers that the grant of sovereign immunity by a State in civil proceedings pursues the legitimate aim of complying with international law to promote comity and good relations between States (54) … measures taken by a High Contracting Party which reflect generally recognized rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the rights of access to a court as embodied in Article 6(1). Just as the right of access to court is an inherent part of the total guarantee in this Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the doctrine of State immunity.68
An erga omnes obligation is defined as ‘an obligation under general international law that a State owes in any given case to the international community, in view of its common values and its concern for compliance, so that a breach of that obligation enables all States to take action’.69 The Institut de droit International Resolution in which this definition appears provides in Article 5 that ‘Should a widely acknowledged grave breach of international law occur, all the States to which the obligation is owed: (a) shall endeavour to bring the breach to an end through lawful means in accordance with the UN Charter; (b) shall not recognize as lawful a situation created by the breach; and (c) are entitled to take non-forcible counter-measures … ’.
In the Belgium v Senegal judgment of 2012, the ICJ observed that the common interest in compliance with obligations under the Torture Convention ‘implies the entitlement of each State party to the Convention to make a claim concerning the cessation of an alleged breach by another State party. If a special interest were required for that purpose, in many cases no State would be in the position to make such a claim. It follows that any State party to the Convention may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes’.70
A number of multilateral conventions also impose an obligation requiring State parties to exercise universal jurisdiction in respect of specific offences defined in the convention and provide an obligation aut dedere aut judicare where an alleged offender is within the territory of a State Party; for extradition to the State where the violation was committed or to the State of the offender’s nationality, or for prosecution in the national court of the State Party.71 A similar obligation has been claimed to exist in customary international law where a State has granted asylum to a person present in its territory accused of the commission of grave international crimes.
Thus, in addition to a complaint by the State of the nationality of an individual of a violation of jus cogens which overrides the bar of immunity, the obligation erga omnes of non-recognition for ‘a serious breach by a State of an obligation arising under a peremptory norm’72 may also be resorted to by other states as ‘trumping’ the effect of other rules of international law, including that relating to State immunity, and as entitling in some cases the exercise of universal jurisdiction in respect of the individual accused of the jus cogens violation.
Despite the ICJ’s comment referred to above, its ruling in the Belgium v Senegal case has lessened the accepted understanding of the scope of the obligation aut dedere aut judicare as a customary rule of international law. The case concerned a claim brought by Belgium for breach of the Torture Convention by reason of Senegal’s lengthy delays to initiate prosecution of the former President of Chad. Hissène Habré was accused of the commission of genocide and crimes against humanity and had been granted asylum in Senegal. Belgium claimed in respect of the treaty obligation in the Convention Against Torture, that ‘if for one reason or another the State concerned does not prosecute, and a request for extradition is received, that State has to extradite if it is to avoid being in breach of this central obligation under the Convention’.73 The Court, however, held that the obligation to prosecute arose by reason of the presence of the accused in the State’s territory and was independent of any requirement to extradite: ‘an obligation for a State to prosecute crimes under customary international law allegedly committed by a foreign national abroad is clearly distinct from any question of compliance with that State’s obligations under the Convention against Torture and raises quite different legal problems … ’. It further explained that: ‘Extradition is an option offered to the State by the Convention, whereas prosecution is an international obligation under the Convention, the violation of which is a wrongful act engaging the responsibility of the State’.74
Universal jurisdiction has also potentially been restricted by the ICJ’s ruling in the Jurisdictional Immunities case that the rules of State immunity are procedural in character. This establishes that for any such new development to effect a removal of immunity of a foreign State in proceedings in a national court, the requirement of a jurisdictional link, which indeed was already required in the Second Model in respect of proceedings relating to commercial transactions.
These four concepts supporting the hierarchical nature of international law—jus cogens, erga omnes, universal jurisdiction, reparation for victims (as supported by the procedural right of access to court discussed above)—have largely lacked success in further restricting the bar of State immunity. The ‘diversification of international actors’75 and response to obligations ‘owed to the international community as a whole’76 may provide grounds for some expansion of the matters permitted to come within such an investigation. But the setting aside by a court of the immunity of a foreign State summoned before it on the ground that a plea to immunity from jurisdiction is wholly procedural and exclusionary of all substantive issues, as the ICJ in the Jurisdictional Immunities judgment has stated, raises issues of fundamental importance that cannot be solved solely by the distinction between procedure and substance.
The plea of State immunity is well recognized by State practice to be of a procedural nature requiring it to be taken and decided first in any national court hearing. Accepted elements relating to this first procedural stage when a court determines whether or not to exercise its jurisdiction in respect of a claim include: standing, mootness, ripeness, admissibility of evidence.77 However, it is questionable whether this procedure/substance distinction can usefully be applied in all cases as the determinant of relevance to the exclusion of all other issues related to State immunity. A procedural distinction has been applied in private international law, in human rights law with respect to the right of access to court under the ECHR, and in State responsibility (in terms of primary and secondary obligations). In these three areas, difficulties of application have been encountered.
Thus, in conflict of laws the distinction has been employed to determine as a ‘principle that procedure is governed by the lex fori … with matters of substance governed by the law to which the [forum] court is directed by its choice of law rules (lex causae)’.78 The complexities which the application of such a distinction has produced in the determination of the applicable law for the purposes of private international law, as evidenced by conflicting rulings of the Australian and English courts,79 and its abandonment in respect of actions in tort, by reason of its inability to distinguish between damage which relates to substance (the kind of loss) or to procedure (the quantification of loss) provide a sufficient warning against too heavy a reliance on it as a solution in respect of State immunity.80
As regards the ECHR, the European Court has adopted the distinction in its practice relating to a right of access to court pursuant to Article 6(1); whilst limitations restricting access to court have been held to be procedural and contrary to Article 6 there is a long line of cases81 where mindful that the alleged restriction relates to ‘the determination of … civil rights and obligations’, it has dismissed a claim as based on a ground barred by substantive law. But the distinction has proved ‘a slippery one to apply’. As stated in Fayed v United Kingdom (1994) 18 EHRR 393, 430, paragraph 67,
It is not always an easy matter to trace the dividing line between procedural and substantive limitations of a given entitlement under domestic law. It may sometimes be no more than a question of legislative technique whether the limitation is expressed in terms of the right or its remedy.
Such a technique was employed in Matthews in a case decided in the House of Lords where a serviceman challenged a certificate of the Ministry of Defence pursuant to the Crown Proceedings Act 1947 entitling him to a pension but which removed his common law right in tort; a violation of Article 6 was rejected as contrary to an alternative statutory remedy provided by UK substantive law: ‘The notion that a state should decide to substitute a no-fault system of compensation for some injuries which might otherwise lead to claims in tort is not inimical to Article 6(1)’.82
The position as to access in Fogarty v UK is also instructive. Here the ECtHR in applying Article 6(1) examined aspects of employment and disregarded the barrier of immunity. It decided that questions of appointment were within sovereign authority, but not the terms of employment. In that case immunity was not treated a procedural bar to examination of aspects of the ‘immune’ transaction.
A third illustration of the use of the distinction between primary and secondary obligations, is provided by its employment as the central organizing idea in the formation of the 2001 ILC Draft Articles on State Responsibility. The adoption of this distinction in the ILC’s 1996 Draft, with primary rules defined ‘as the content and duration of substantive State obligations’ and secondary rules ‘the consequences of a breach of applicable primary rule’83 represents ‘a way out of the impasse’ left by the rejection of Garcia-Amador’s controversial 1961 proposals for substantive rules of responsibility of the State for injuries caused in its territory to aliens (which was controversial in the conferment of rights on aliens equal to those enjoyed by the nationals of the State). The subsequent ILC Drafts on the responsibility of States were concerned as Crawford explained, with ‘the underlying structure of interaction and rule-making at the international level’, drafting the less controversial, universally applicable, consequences of a breach of an international obligation owed by one State to another; in effect lawyers’ law; leaving the substantive rules in contrast, to be ‘subject to constant revision, qualification and development … [ones] for State and international organizations to decide and modify’.84
This review of State practice may lead one to describe the Third Model as both regressive and exclusionary, a recognition that the time is not ripe for unilateral decisions of national courts to provide solutions to highly political claims.
The better view, however, is to treat the Second and Third Models as swings of a pendulum. Given the changing political makeup of the international community and the considerable economic and environmental problems to be faced, change in the shape of international law, as the ICJ itself indicated, is also not to be ruled out. The ICJ 2012 Judgment has left a number of doors open.
First, the distinction between acts in exercise of sovereign authority and acts of a commercial nature is likely to come under pressure. As Orakhelashvili has written: ‘The essence of the restrictive doctrine is that the “preliminary” or “procedural” nature of State immunity depends on the substantive characterization of the act in question as sovereign or non-sovereign’.85 The ICJ does not define acta jure gestionis and its scope remains flexible. As we saw under the Second Model, the meaning of ‘commercial or private law acts’ is progressively being expanded in some areas. For example, the notion of ‘public service’ has been abandoned as a sufficient description to identify a whole sector of employment in the public sector as acts in exercise of sovereign authority (see Chapter 14 where normal provisions relating to terms of employment and pensions in public service are now treated as within exception to immunity for employment contracts). Where human rights violations can be characterized as occurring in a commercial or employment context, there may be further potential to set aside State immunity.
Secondly, the ECtHR’s requirements of legitimate aim and proportionality cited in paragraph 96 of the ICJ’s Jurisdictional Immunities judgment, when applied to the bar of immunity may have too readily been assumed to be satisfied and incapable of any review. It may be, as referred to in dicta by the French Cour de Cassation in Reunion Aerienne v Libya, that the ‘legitimate aim and proportionality test’ could provide a route for breaking down the procedural/substantive distinction.86 Thus the ECtHR has ruled that where a question arises as to the hierarchy between the obligations arising under the ECHR on the one hand and under the UN Charter on the other, ‘for a measure to be regarded as proportionate and as necessary in a democratic society, the possibility of recourse to an alternative measure that would cause less damage to the fundamental right at issue whilst fulfilling the same aim must be ruled out’.87 An Egyptian national barred for some six years from transiting Swiss territory by Switzerland’s compliance with UNSC Resolutions listing him as a person associated with Al-Qaeda, applied this maxim to support a claim for breach of his right to respect for private and family life pursuant to ECHR Article 8 by reason that the implementation of this listing imposed disproportionate restrictions on his freedom of movement. The ECtHR found that the Swiss compliance with the UNSC resolutions did not strike a fair balance between the applicant’s right to the protection of his private and family life, on the one hand, and the legitimate aims of the prevention of crime and the protection of Switzerland’s national security and public safety on the other.
This decision has relevance to State immunity as an acceptable bar to human rights complaints. Just as the ECtHR ruled that reliance on the overriding effect of a Security Council Chapter VII Resolution did not exempt Switzerland from seeking alternative ways of compliance to accommodate the applicant’s claim, so international law’s requirement of respect for another State’s sovereignty may be accommodated by proof that immunity’s legitimate aim has not been exceeded by the making of a complaint in respect of human rights which are now regulated by private law.88
Thirdly, the procedural/substantive distinction may prove less impenetrable than the ICJ Jurisdictional Immunities judgment suggests. The procedure/substance distinction89 now applied to the plea of State immunity like the Draft ILC Articles on State Responsibility, will come under attack.90 The same accusation of a ‘distinction of expedience rather than principle’91 may be levelled at the ICJ’s use in the 2012 judgment of the procedural exclusionary nature of a plea of State immunity as a resort to internal rules of the structure of making a claim; its use justified as a clarification of the correct way to process a foreign State’s claim, but serving to exclude the disposal of other awkward issues of substantive law. As Nollkaemper writes, it gives rise to questions as to ‘the normative choices that courts inevitably have to make and reflects on the question of whether, and to what extent, the shaping of these connections is properly part of the international judicial function, taking into account problems of legitimacy that may arise when judge-made procedures undo State-made substantive law’.92
The three different models on which State immunity has to date been based have now been described: the First Model, the absolute doctrine, where the relationship is between two States, the foreign State and the State of the forum; the Second Model, the restrictive doctrine, where a distinction between the State’s exercise of public powers as opposed to engagement in private relations restricts immunity to the former allowing proceedings relating to commercial matters against a foreign State in national courts by private individuals; and the Third Model, immunity as a procedural exclusionary plea, where a procedural/substantive distinction is used to restrict the scope of immunity and its impact on questions of substantive law. These three models do not strictly describe a historical progression—indeed they overlap and infiltrate each other. Thus, as regards the First and Second models, some States continue to adhere to the absolute doctrine while others have adopted the restrictive approach. And the Second and Third Models may be seen as swings of a pendulum; while the restrictive doctrine has limited the application of immunity through, inter alia, the narrowing of which acts are considered ‘in exercise of sovereign authority’, the procedural/substantive distinction allows immunity to be retained regardless of the lawfulness of the act of a foreign State. All three models can help to understand the changes over time which the plea of State immunity serves, in the accommodation of private claims for redress with the maintenance of due respect for authority.