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Title
:
State Immunity vs. Individual Claims: Current Trends in the
Invocation of State Immunity for Actions Arising from Grave
Violations of Human Rights.
Author
:
Karissa Faye R. Tolentino
Program
:
Juris Doctor
Copyright
:
February 1, 2013
Abstract
:
At the outset it is important to note the lack of any fixed criteria
in international law as to the status of State Immunity when it is used
as a defense against claims for grave breaches of human rights
violations amounting to jus cogens norms. State Immunity or often
referred to as Soveriegn Immunity is the right to be immune from
proceedings conducted against it within the courts and jurisdiction of
another state. This principle is reflected in the maxim par in parem non
habet imperium: one sovereign state is not subject to the jurisdiction of
another state. Article 53 of the Vienna Convention on the Law of
Treaties (“Vienna Convention”) defines jus cogens as a peremptory
norm accepted and recognized by the international community of states
as a whole as a norm from where no derogation is permitted, such as
the prohibition against slavery, genocide, torture, racial discrimination,
crimes against humanity, and war crimes.
This thesis covers an incident between two states. An
individual, in one state, files a civil claim for damages or reparation in
his domestic court against a foreign state that committed grave
violations of human rights amounting to a jus cogens norm against him.
The foreign state will then claim the defense of Sovereign Immunity.
The principal purpose of this study is to explore and answer the
issue as to whether a foreign state is entitled to state immunity in civil
actions filed by an individual before his domestic court for human
rights violations constituting breaches of jus cogens norms. In
addressing the objective of this study, the approach is primarily from
the perspective of public international law. The particular method used
in this study is desk research. An extensive examination of the sources
of international law such as International Conventions, International
Property of Silliman College of Law
Custom, General principles of law, judicial decisions and teachings of
the most highly qualified publicists was done.
As a human rights advocate, the author was hoping that the
research would lead to the conclusion that jus cogens human rights will
prevail over state immunity. While the author was writing this thesis,
on February 2, 2012, the International Court of Justice rendered its
decision in the case of Germany v. Italy, that under customary
international law a state is not deprived of immunity in civil claims for
jus cogens human rights violations. A cursory reading in this case
would appear that said decision has resolved the issue of my thesis.
However, a closer scrutiny would indicate otherwise. This allowed me
to narrow down my thesis and make my examination of cases where
this issue of state immunity and jus cogens human rights violations had
arisen.
The following findings were drawn: (1) There is no
comprehensive multilateral agreement on state immunity when it
comes to violations of jus cogens human rights; (2) There is no rule
under Customary International Law that upholds State’s jurisdictional
immunity as against grave violations of human rights of jus cogens
character; and (3) The Germany v. Italy Case has not resolved the
objective of this thesis. Therefore, there is no consensus in the
international community in denying a State’s Jurisdictional Immunity
as against grave violations of human rights of jus cogens character.
In order to pacify the confusion due to the lack of a clear
doctrine pertaining to the standing of state immunity, the following
recommendations were derived: (1) States could result to the
enactment of domestic legislations and rules on State Immunity; (2)
The 2004 UN Convention on Jurisdictional Immunity upon its entry
into force will help resolve the issue; (3) Further study on the Immunity
from Execution of a judgment rendered by a domestic court of one
country against another country; and (4) Further study to resolve more
specific questions regarding the interpretation of national rules
concerning state immunity.