State Immunity: Principles, Scope, and Exceptions
State Immunity: Core Principles
The principle of state immunity dictates that a sovereign state cannot be subjected to the jurisdiction of another state’s tribunals or administrative bodies. This immunity stems from the concept of sovereign equality, where no state is superior to another. It manifests in two forms: jurisdictional immunity, preventing a state from being sued in another state’s courts, and enforcement immunity, protecting a state’s assets from measures of execution by another state. However, state immunity is not absolute and can be waived, often with limits based on the nature of the issue.
Foundations of State Immunity
The core elements of state immunity are the sovereignty of states and the principle of par in parem non habet imperium (an equal has no power over an equal). Jurisdictional immunity is a direct consequence of a state’s sovereignty. This immunity limits the power of any state to dictate standards for the jurisdiction of its tribunals. The Spanish Constitutional Court views state immunity as a limitation on its own sovereignty, based on the principle of free exercise of jurisdiction. The basis of state immunity is not a voluntary waiver or courtesy, but a general rule of customary international law.
Scope of Jurisdictional Immunity
Absolute Immunity Doctrine
This doctrine asserts that foreign states cannot be sued or subjected to the jurisdiction of another country’s tribunals, even in civil or commercial matters. Historically, English and American tribunals have adopted this view, though with exceptions.
Restrictive Immunity Doctrine
This doctrine limits immunity to acts of a public nature, protecting states from being sued for commercial or private acts. This prevents states from using immunity to avoid commercial litigation. The distinction between acta jure imperii (acts of sovereign authority) and acta jure gestionis (acts of commercial management) is crucial. The difficulty lies in determining whether an act is public or private.
Spanish Practice
Spanish courts sometimes actively decide on immunity, granting or denying it to other states. When Spanish citizens present claims against foreign states, Spanish courts may apply a restrictive view of immunity. Spain lacks specific legislation on state immunity, leading to reliance on international law. The Constitutional Court has addressed cases where Spanish citizens’ claims were dismissed due to state immunity, emphasizing the deeply rooted nature of the principle.
Organs Covered by Immunity
State immunity extends to all government and superior administrative organs. Immunities and privileges for other entities are governed by specific internal rules. The involvement of states in economic life has led to the creation of entities, some linked to the state, others as public companies, raising questions about the extent of their immunity.
Exceptions to Jurisdictional Immunity
The difficulty in distinguishing between acta jure imperii and acta jure gestionis has led to a focus on specific solutions. The European Convention on State Immunity lists exceptions to the general rule of state immunity, including:
- Voluntary submission to the jurisdiction of another state’s tribunals.
- Formal waiver of immunity.
- Commercial or mercantile activities by the state or its agencies.
- Civil, labor, or property matters related to the forum state.
- Contractual obligations to be executed in the forum state.
- Labor contracts with individuals working in the forum state.
- Involvement with private individuals or companies in the forum state.
- Patents, trademarks, and intellectual property rights registered in the forum state.
- Property rights over real estate in the forum state.
- Succession and donation matters.
- Damages for material or personal injury occurring in the forum state.
- Commitments to arbitration in civil or commercial matters.
Enforcement Immunity
Enforcement immunity extends to a state’s assets located in another state. It is not absolute, with exceptions for diplomatic and consular missions, warships, etc. Spanish jurisprudence distinguishes between assets of diplomatic and consular missions, which are absolutely immune, and other state assets, which are immune if used for acta jure imperii but not for acta jure gestionis. Current accounts are generally considered indivisible and immune.
Other Subjects of International Law
International Organizations
International organizations are subjects of international law, created by states to address issues that are difficult for individual states to solve. They are established by voluntary agreements, with permanent organs to manage collective interests. Their legal personality is limited to the objectives for which they were created.
Peoples
Rights of Colonial Peoples
The principle of self-determination grants colonial peoples the right to be consulted and to freely express their opinion on their political and economic conditions. This includes the right to become a sovereign state. The subjugation of peoples is a denial of fundamental human rights. All peoples have the right to freely determine their political, economic, social, and cultural development. The lack of progress in these areas should not delay independence. Dependent peoples can exercise their right to complete independence peacefully. Any attempt to undermine the territorial integrity of a country is contrary to the principles of the United Nations. The concept of a colonial people includes those who have not yet reached full self-government and whose territory is geographically separate from the administering state.
Application to Non-Colonial Situations
Self-determination is a universal principle applicable to all peoples. It does not endorse a right to secession, which is contrary to the principles of the United Nations. The principle operates at various levels, generating diverse rights for peoples. Colonial peoples have the right to seek and receive support in their resistance. In the field of human rights, the basis of authority lies in the free and periodic participation of the people. States must respect the sovereignty of peoples over their natural resources.
The Individual and Controversial Subjectivity
Doctrinal Debate
The debate on the individual’s subjectivity in international law centers on whether individuals are subjects of international law. To be considered a subject, one must be able to assert rights and be held responsible for violations. The individual is not generally recognized as a subject of international law. However, international law is increasingly focused on humanizing and socializing, protecting the interests of individuals and peoples.
Protection of Individual Rights
There are numerous international legal rules applicable to individuals, aimed at protecting their life, work, liberty, health, and morality. The development of these rules has led to a focus on the international protection of human rights. Individuals can access international bodies to defend their rights. Various international bodies, both judicial and non-judicial, allow individuals to present claims against states. Individuals can also bring cases before the European Court of Justice. The International Labour Organization (ILO) also provides mechanisms for individual claims.
Passive Subjectivity
Individuals can be held responsible for violations of international law. There is no obstacle to considering an individual’s conduct as an international wrong. International law often establishes types of crimes and assigns states the task of punishment. In exceptional cases, individuals may be held directly responsible for acts that violate fundamental interests of the international community.