Basically, a State cannot be sued in the Court of foreign State under
International law. Before 20th century, the concept of state immunity was
applied without any exceptions. The absolute theory of state immunity was
universally accepted. But after the beginning of 20th century, few exceptions
were inserted where state immunity could not be invoked. Gradually restrictive
theory prevailed over absolute theory and restrictive immunity was accepted by
most nations in the world.
States started distinguishing between private and public acts and with
prevalence of globalisation, international trade began among different states
ever so rapidly. Different States through mutual agreement made an exception
that only official acts of the States would be eligible for sovereign immunity
and commercial acts and transactions would not be included in the norms of
Court of Italy held that in case of any contravention of jus cogens norms, no
state immunity will be provided. In cases such as Al-Adsani and Jones, the
court held that State immunity is unalterable in its stance with regards to
State immunity is often used by the sovereign states when another state sues
them in their own jurisdiction. Since the states are not under any sort of
external control. Hence, they cannot be sued on foreign land. State immunity is
an important aspect of the international law. So, if anyone wants to sue any
foreign state in their own state then they do not have jurisdiction to do that.
But if any state is aggrieved from the act of another state then they can knock
the doors of International Court of Justice.
For Example, when India felt aggrieved by the action of Pakistan in Kulbhushan
Jadhav case then rather than suing them in their own jurisdiction they filed the
petition on International Court of Justice. Even if India would have filed the
case in Indian Supreme Court against Pakistan then also there could not have
been done anything due to the phenomenon of State Immunity in international law.
But before understanding the detailed aspect of state immunity, it is important
to understand its definition. State immunity is based on the theory that states
have no right to question the act of another state according their own national
laws. It is assumed that the sovereignty of each state is equal and hence no
state can sue another state as per their national laws in their municipal
Understanding State Immunity
State Immunity is basically related to the sovereign equality of states and bar
states to sue each other in their respective municipal courts. It is important
to build the healthy relationship among the states and promotes world harmony.
However, International Court of Justice is established in order to overcome any
dispute between the nations. The concept of State Immunity is based on "Par
in Parem Non Habet Imperium
" which means that equals have no power against
There are two ways to protect a State:
- Immunity form Suit:
It is considered inappropriate that Court of one state takes action against
another state as per their own laws. To prevent this, state is given immunity to
get sued in another state's jurisdiction for their actions. But if the state
immunity can be waived by the state as per their choice.
- Immunity from Execution:
States also get immunity which prevents other states from confiscating their
property so as to satisfy the demands of another state's creditors or court's
judgement etc. In case of Schooner Exchange vs McFadden, the court said
regarding Sovereignty that, a state has absolute jurisdiction within its
territory and this immunity can be waived by the state as per situation. This
judgement was held in 1812 and after that many countries of European continents
along with United States recognized the concept of State Immunity.
National City Bank of New York vs Republic of China Facts:
- National Bank was sued by Republic of China for the recovery of $200,000
under section 25(b) of the Federal Reserve Act. This amount was deposited in
National Bank in 1948.
- Further, the National Bank imposed a counter claim on default of
$1,634,432 treasury notes of Republic of China in the Federal District
- China Pleaded for State Immunity under International law against the
counter claim of National Bank.
- In the Federal District Court, the counterclaim of National Bank was
dismissed and China was recognized as the Sovereign state. Later, the
Supreme Court of US, granted the writ of Certiorari and it was held that
Republic of China is not immune from the judgement of Federal District Court
- Republic of China's decision to sue National Bank in USA waived its
state immunity and Republic cannot claim it.
- Also, the counterclaim bought by the National Bank was held valid and
resulting in the elimination of the state immunity enjoyed by the Republic
- Hence it can be concluded that the state immunity can be rejected on
mere ground that China sued the National Bank in United States Court.
Act of State and Sovereign Immunity
Both these terms are important to understand before comparing between them. An
act of state can be defined as imposing of national decisions upon its people
and property. Generally, the decisions are enforced through any law, such law is
an act of state. But these laws are ineffective in another state because each
state is sovereign and protects its territory by its own laws. Thus, it can be
concluded that the act of state has extraterritorial jurisdiction. One state is
not responsible for the protection of rights of the citizen of another state
unless there is an agreement between such states. The US Supreme Court said that
the act of state and sovereign immunity are two different phenomenon with common
origin and close interdependence.
The Private-Public Distinction
State immunity basically shields the state from getting sued in the foreign
state unless there is an international custom which permits otherwise. There was
a time when state enjoyed sovereign immunity without any restrictions. But over
the period of time, it is changed and there are some restrictions in the way of
enjoying the complete state immunity.
When the state enjoys sovereign immunity without any limitation then it is
termed as absolute immunity and when the state enjoys sovereign immunity with
some limitations then it is termed restrictive immunity. When the state acts in
accordance with their official duties then they enjoy immunity and when they
perform some act on personal capacity or act as a private person then they are
not immune from jurisdiction of another state. From the aforementioned
statement, the concept of state's conduct is clear and accordingly the immunity
is enjoyed by them.
The shift from absolute to restrictive immunity happened over considerable
period of time. In 1957, Belgian Court was the first court to recognize that the
private acts of the state are not the part of the sovereign immunity and this
decision came way back in 1857. The Italian Court adopted the private act
exception in the year 1890. However, since then the world has changed with
respect to restrictive immunity.
But the distinction between the private and public act is still not clear.
Disagreement among the states starts regarding the relevant test for the
determination of character of the act as public or private. Whether the purpose
of the act should be looked or the nature. The state's conduct is usually
determined by the nature of the act but if other state often applies purpose
test to determine the character of the act or if the state agrees to apply it
then purpose test will be applied.
Now it is very much clear that state started to accept restrictive theory over
absolute theory gradually over the period of time. But even when they have
started to accept the restrictive theory, its interpretation is different for
different states. The parameters that are set for distinguishing the public act
from private act also vary from state to state. In what context, the distinction
between private and public act should be applied and should it be limited to the
commercial and transactional matters or it should include other things as well,
is a matter of discussion.
If any tortious act is committed by any state against any other state then state
immunity must be denied. European Convention on State Immunity (ECSI) and
United Nations Convention on Jurisdictional Immunities of States (UNCJIS)
includes such obligations. But many states differ with this exception.
If we say that State immunity is the default rule and if there is any exception
it should reflect customary international law. Tort exception has not evolved
into custom yet then the countries such Canada, USA, Australia, United Kingdom
etc. that have included tort exception in their state immunity laws are in
contravention with the international laws.
Human Rights, State Immunity and Jus Cogens 
Protection of fundamental human rights such as torture, crimes against humanity
etc. comes under jus cogens but state immunity, which is not evolved as custom
yet is considered under ordinary international law. When the human rights of the
individuals are violated in any foreign state then claiming sovereign immunity
by such state should not be permitted. The jus cogens focuses on the basic
values of the international community and it is accepted universally.
But determination of which norms come under the purview of jus cogens and which
do not form the part of it, is still debatable. If we try to understand the
concept of jus cogens then we will find that the rules that are basic to the
functioning of international legal system are part of it. For Example, sovereign
equality and pacta sunt servanda, independence of states etc. are part of jus
But the norms such as sovereign equality and independence of states are major
element of state immunity hence it is difficult to eliminate the state immunity
from ambit of jus cogens. Thus, even if state immunity is recognized as the
ordinary international law but its core elements are part of the jus cogens.
Hence violation of fundamental human rights and grant of state immunity is
conflicting. The conflict between fundamental human rights and state immunity is
conflict of ideologies and not the conflict of norms.
Moreover, the legal consequences of the violation of fundamental human rights
and violation of state immunity are different. Recognition of certain rules and
its enforcement under international law are two different things. Due to absence
of enforcement agency in international legal system, relationship between
violation of fundamental human rights and grant of state immunity is even more
conflicting. Hence it can easily be concluded that presence of any norm is
completely unrelated to its enforcement. This remains stand for both customary
as well as ordinary international law.
If there is any norm under jus cogen then limiting its enforcement by any other
norm may make the later norm invalid. But the chances of implementation are very
less. Fundamental human rights is a norm under jus cogen and can it be limited
for an ordinary international law like state immunity. However, those scholars
who argue that there must be fundamental human rights exception to the state
immunity should be aware of the fact that there is neither any case law nor such
state practice that state immunity should be in compliance with the norms of jus
Sovereign Immunity: A Principal
Sovereign Immunity, explained in different literature and jurisprudence from
time to time, as principle of international law. The term Principle is often
used in place of Rule with certain exceptions. There is no clear cut difference
between principles and rules. But the argument which is accepted is that rules
are much more specific than principles
If the level of generality is high then
it is termed as principle. Since rules are more specific so any deviation from
them is not allowed on the other hand principles are wider and they can be
interpreted in more than one way and hence some deviation is not prohibited.
Hence a principle has a broader scope. If one rule mandates the use of some norm
and second rule prohibits the use of same norm then the exception may be
inserted in the first rule.
If the exception is not inserted then the conflict may be resolved with help of
legal maxim lex posterior (legal rule arising after the conflicting rule) or lex
specialis (more specific rule will prevail over more general rule). In case of
principles, the use of one principle over another is very common and this does
not make the other principle invalid. But in case of rules, if the emphasis is
given to one rule over another then it may be the case that the other rule is
If the treaty or custom do not resolve the conflict then the principles
are used to resolve such conflict. Hence it only serves as a back-up in case
there is absence of any custom or treaty in international law.
Most of the states accept the concept of State Immunity and it is applied as
something which is legally binding in nature under international law. Each state
understands the concept of state immunity in their own way. But now there is
gradual change from absolute immunity to restrictive immunity.
States which are adopting the restrictive theory are also distinguishing between
private and public acts of states based on different norms. If we consider the
state immunity as a rule then those states, which are applying the state
immunity with tort exception and it not being part of the customary
international law, are actually violating the international law.
But if we consider state immunity as the principle then it includes broader
spectrum and hence states could make distinction between public and private acts
as per their own norms even if such norms are not part of the customary
international law. Hence state immu8nity is considered as a Principle and not a
Presently, the international law focuses more on sovereign equality than
independence of state and the norms which distinguish the public and private
acts are also interpreted by states as per their choice. It is favourable to
accept state immunity as principle due to the current practice in international
Earlier when the States were in favour of absolute immunity then the crimes
committed by the officials were not punishable. They were under the ambit of
state immunity. Later with the introduction of restrictive immunity, certain
norms such as tortious act, human rights violation, commercial and transactional
matters were made exceptions under state immunity. Even today, if officials
commit any crime then they try to take the defence under state immunity.
Presently, the state immunity is not given for criminal offences but for civil
offences it is given. State immunity should also be restricted in cases when the
civil wrong is committed.
The present concept of restrictive theory should not be restricted to few
exceptions but it should include those norms as exceptions, violation of which
is not acceptable globally. In States, where the common law is followed, the
concept of state immunity developed only through the case laws but in civil law
nations, the case laws are not binding. From the beginning of the 20th century,
there was considerable rise in the communist states and this was also one of the
reasons why there was some need to restrict the state immunity. Since there was
no remedy available in international law, in case there was any dispute arising
out of trading activities, tortious act or gross human rights violations.
Restricting the doctrine of state immunity was needed. During the time of Second
World War there was complete human rights violations and if the officials of
such states were given the privileges of state immunity then it would have been
great injustice to the victims. Therefore, it was necessary to insert few
exceptions in defence of state immunity.
- Lee M Caplan, State Immunity, Human Rights and Jus Cogens: A Critique of
the Normative Hierarchy Theory, 97 Am. J. Int. Law (2003)
- Curtis A. Bradley, Foreign Officials and Sovereign Immunity in U.S.
Courts, 13 (3) ASIL (2009).
- Malcolm N. Shaw, International Law, 5 th ed., 2003
- Robert L. Jackson, International Law Favors 'Sovereign Immunity' for
Plane Experts say (Apr. 4, 2001) (http: articles.latimes.com/2001/apr/04/news/mn-46596)
- European Convention on State Immunity, May 16, 1972
- Johannes van Aggelen, Nowhere to Hide: Defeat of the Sovereign Immunity
Defense for Crimes of Genocide and the Trials of Slobodan Milosevic and
Saddam Hussein, 5 (1) Chin. J. Int. Law (2006)
- Kerstin Bartsch, Bjorn Elberling, Jus Cogens vs. State Immunity, Round
Two: The Decision of the European Court of Human Rights in the
Kalogeropoulou et al. v. Greece and Germany Decision, 04(05) GLJ (2003)
- Stacy Humes-Schulz, Limiting Sovereign Immunity in the Age of Human
Rights, 21 Harv. Hum. Rts. J. 105, 106 (2008)
- Burkhard Heb, The International Law Commission's Draft Convention on the
Jurisdictional Immunities of States and Their Property, 4 EJIL (1993)
- Markus Rau, State Liability for Violations of International Humanitarian
Law - The Distomo Case Before the German Federal Constitutional Court,
07(07) GLJ (2006)
- European Convention on Human Rights, Nov. 04, 1950, ETS No. 005
- Al-Adsani v United Kingdom, Merits, App No 35763/97
- Jones v United Kingdom
- 208 F.2d 627 (2d Cir. 1953)
- European Convention on State Immunity - Basle, 16.V.1972
- compelling law
- agreements must be kept