State Immunity

State Immunity is a principle of International Law under which a State is generally protected from the jurisdiction of the courts of another State and, in appropriate circumstances, from enforcement measures taken against its property.

The principle is based on the sovereign equality and independence of States.

The basic idea is:

One sovereign State → should not ordinarily exercise judicial authority over another sovereign State without a recognised exception

Meaning of State Immunity

State immunity means that a foreign State may claim immunity from the jurisdiction of the courts of the State in which proceedings are brought.

For example:

State A → sued before courts of State B

State A may claim immunity from the jurisdiction of State B’s courts, depending upon the nature of the dispute and the applicable law.

State immunity therefore protects the sovereign functions of a State from the jurisdiction of foreign courts.

Basis of State Immunity

The principle is traditionally connected with:

• sovereign equality;
• independence of States;
• territorial sovereignty;
• non-intervention;
• par in parem non habet imperium.

The Latin maxim means, broadly:

An equal has no authority over an equal.

A sovereign State should not ordinarily exercise judicial authority over another sovereign State.

Absolute Immunity

Historically, State immunity was associated with the doctrine of absolute immunity.

Under absolute immunity, a foreign State was generally immune from the jurisdiction of another State’s courts regardless of the nature of the activity involved.

Thus:

Foreign State → Immunity

This approach provided broad protection to States.

Restrictive Immunity

Modern State practice has largely moved towards the doctrine of restrictive immunity.

Under restrictive immunity, a State is generally immune for its sovereign or governmental acts, but immunity may not apply to certain commercial or private-law activities.

The distinction is commonly expressed as:

Acta jure imperii → Immunity

Acta jure gestionis → Generally no immunity

Acta Jure Imperii

Acta jure imperii means acts performed in the exercise of sovereign governmental authority.

Examples may include:

• military activities;
• diplomatic activities;
• sovereign governmental decisions;
• legislation;
• taxation;
• public administration;
• certain acts concerning national defence.

Foreign States generally retain immunity in relation to such sovereign acts.

Acta Jure Gestionis

Acta jure gestionis refers to activities of a commercial or private-law character.

Examples may include:

• commercial contracts;
• purchase of goods;
• certain business transactions;
• commercial services.

Under restrictive immunity, a State may not be immune from foreign jurisdiction in relation to certain commercial transactions.

Nature of the Activity

A major question is whether the relevant conduct is sovereign in character or commercial in nature.

Modern approaches often examine the nature of the act, although the purpose of the transaction may also be relevant under particular legal systems.

For example:

State purchases military equipment for sovereign defence

may receive different treatment from:

State enters ordinary commercial contract for goods

The precise classification depends upon the applicable law.

Jurisdictional Immunity

State immunity primarily concerns the immunity of a State from the jurisdiction of foreign courts.

This means that a foreign State may object to:

• being sued;
• being subjected to court proceedings;
• being required to appear before a foreign court.

However, immunity is not necessarily absolute.

Immunity from Enforcement

State immunity also has a separate dimension concerning enforcement.

Even if a foreign court is permitted to hear a case against a State, the court may still face restrictions on:

• attachment of State property;
• seizure of State assets;
• execution of judgment;
• freezing of sovereign property.

Thus:

Immunity from jurisdiction and immunity from enforcement are separate questions.

Waiver of Immunity

A State may waive its immunity.

Waiver may occur expressly or, depending upon the applicable legal framework, through conduct demonstrating consent to jurisdiction.

For example, a State may:

• expressly agree to submit a dispute to a foreign court;
• enter into a contract containing a valid jurisdiction clause;
• initiate proceedings itself and thereby affect its ability to claim immunity in related matters.

The exact consequences depend upon applicable law.

Immunity and Commercial Transactions

Under the restrictive doctrine, commercial transactions are a major exception to State immunity.

For example:

State A purchases goods from Company B

If a dispute arises concerning the commercial transaction, State A may not necessarily be able to rely upon immunity before the courts of another State.

The precise treatment depends upon the relevant domestic or international legal framework.

Immunity and Employment Contracts

Employment disputes involving foreign States can raise difficult questions.

For example:

Foreign embassy employee → brings employment claim against foreign State

Whether immunity applies may depend upon:

• nature of employment;
• functions performed by the employee;
• diplomatic status;
• subject matter of dispute;
• applicable domestic law;
• international agreements.

Employees performing sovereign or diplomatic functions may receive different treatment from ordinary administrative or service employees.

Immunity and Diplomatic Immunity

State immunity should be distinguished from diplomatic immunity.

State Immunity

Protects the State as a sovereign entity from foreign jurisdiction in appropriate circumstances.

Diplomatic Immunity

Protects diplomatic agents and certain diplomatic personnel under the law governing diplomatic relations.

Diplomatic immunity is principally governed by the Vienna Convention on Diplomatic Relations, 1961.

State Immunity and Foreign Officials

State immunity can also raise questions concerning whether officials are protected for acts performed on behalf of the State.

This is different from the personal immunity enjoyed by certain incumbent senior officials under customary International Law.

The distinction between:

• immunity of the State;
• immunity of State officials;

is therefore important.

State Immunity and International Organisations

State immunity should also be distinguished from the privileges and immunities of international organisations.

International organisations derive their immunities from:

• constituent treaties;
• headquarters agreements;
• conventions;
• other applicable legal instruments.

State Immunity and Criminal Jurisdiction

State immunity primarily concerns the jurisdiction of foreign courts over the State itself, particularly in civil and commercial proceedings.

It should not automatically be treated as immunity from all criminal responsibility.

The law governing criminal jurisdiction over individuals, State officials and international crimes involves separate rules concerning:

• personal immunity;
• functional immunity;
• international criminal tribunals;
• domestic criminal jurisdiction.

Immunity and International Crimes

One of the most difficult issues is whether State immunity can prevent proceedings concerning serious international crimes.

The answer depends upon the type of proceeding and the applicable legal framework.

A distinction must be made between:

State responsibility

and

individual criminal responsibility.

A State’s immunity before foreign domestic courts does not automatically mean that an individual official can never be prosecuted before an international criminal tribunal.

Jurisdiction vs Immunity

State immunity is a procedural limitation on the exercise of foreign jurisdiction.

This distinction is important.

A court may ask:

1. Does it have jurisdiction over the dispute?
2. Does the foreign State have immunity from that jurisdiction?

Therefore:

Jurisdiction exists ≠ Immunity does not exist

Important Case: Jurisdictional Immunities of the State

The leading international case is Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), 2012, decided by the International Court of Justice.

The case concerned proceedings in Italian courts relating to Germany’s conduct during the Second World War.

Italy argued, among other things, that Germany should not be entitled to immunity because of the serious violations of International Humanitarian Law involved.

The ICJ held that Germany was entitled to immunity before Italian courts in the circumstances of the case.

Importance of Jurisdictional Immunities Case

The case is important because the ICJ distinguished between:

• the existence of serious violations of International Law; and
• the procedural question of State immunity before foreign domestic courts.

The Court did not treat the seriousness of the alleged violations as automatically eliminating Germany’s jurisdictional immunity.

State Immunity and Enforcement

The ICJ also addressed issues concerning enforcement measures against State property.

The judgment demonstrates that:

Immunity from jurisdiction and immunity from enforcement are distinct aspects of State immunity.

Property serving sovereign purposes receives particularly strong protection.

State Property

Not all State property necessarily receives identical treatment.

The legal position can depend upon:

• purpose of the property;
• sovereign or commercial character;
• location;
• applicable domestic law;
• treaty obligations.

Certain categories, such as diplomatic and military property, generally receive particularly strong protection.

Diplomatic and Consular Property

Property used for diplomatic purposes is subject to special rules.

Examples include:

• embassy premises;
• diplomatic accounts;
• certain diplomatic communications and property.

The applicable rules of diplomatic and consular law provide additional protections.

Commercial State Property

Commercial property may receive less protection under restrictive immunity regimes, particularly where it is used for commercial purposes and a valid exception to immunity applies.

However, the precise rules vary considerably between jurisdictions.

State Immunity and Arbitration

States frequently enter into contracts containing arbitration clauses.

A State’s agreement to arbitrate may constitute a waiver or limitation of immunity from jurisdiction concerning the arbitration, depending upon the applicable legal framework.

However:

Consent to arbitration ≠ Automatic waiver of immunity from enforcement

A separate question may arise concerning whether an arbitral award can be enforced against State property.

State Immunity and Contracts

Commercial contracts involving States often contain provisions dealing with:

• governing law;
• dispute resolution;
• jurisdiction;
• arbitration;
• waiver of immunity.

These clauses can be important in determining whether and to what extent immunity is available.

State Immunity and International Conventions

Important international instruments concerning State immunity include the United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004.

The Convention seeks to establish a common framework concerning:

• jurisdictional immunity;
• exceptions to immunity;
• commercial transactions;
• employment;
• State property;
• enforcement measures.

Its legal status and applicability must be considered separately from the general customary law position.

Exceptions to State Immunity

Under restrictive immunity, commonly recognised exceptions may include:

• commercial transactions;
• certain employment disputes;
• certain property-related proceedings;
• certain contractual disputes;
• arbitration where consent exists;
• other exceptions recognised by applicable law.

The precise exceptions depend on the relevant legal system and treaty obligations.

State Immunity and Territorial Sovereignty

State immunity reflects the principle that sovereign States should respect each other’s independence.

At the same time, restrictive immunity recognises that States increasingly participate in:

• international commerce;
• investment;
• banking;
• employment;
• commercial contracts.

The modern doctrine therefore attempts to balance:

Sovereignty → Immunity

with

Commercial accountability → Exceptions

State Immunity and Human Rights Claims

Human rights litigation can create difficult questions concerning State immunity.

A claimant may argue that serious violations should remove immunity.

However, the existence of a serious human rights violation does not automatically eliminate State immunity before foreign domestic courts.

The Jurisdictional Immunities case is particularly important in this regard.

Common Confusions

Is State immunity absolute?

No. Modern State practice generally follows a restrictive immunity approach, subject to recognised exceptions.

What is the difference between absolute and restrictive immunity?

Absolute immunity protects the State broadly from foreign jurisdiction. Restrictive immunity distinguishes between sovereign and commercial acts.

What are acta jure imperii?

Acts performed in the exercise of sovereign governmental authority.

What are acta jure gestionis?

Commercial or private-law activities of the State.

Does State immunity prevent all proceedings?

No. Exceptions may apply, particularly in relation to commercial transactions.

Is immunity from jurisdiction the same as immunity from enforcement?

No. They are separate questions.

Can a State waive immunity?

Yes, subject to the applicable legal rules.

Is State immunity the same as diplomatic immunity?

No. State immunity protects the State; diplomatic immunity protects diplomatic agents under diplomatic law.

Does serious human rights abuse automatically remove State immunity?

No. The ICJ’s Jurisdictional Immunities decision is particularly important on this issue.

Does consent to arbitration automatically permit enforcement against State property?

No. Consent to jurisdiction or arbitration and waiver of immunity from enforcement are separate questions.

Topic at a Glance

Point Position Meaning Immunity of a State from foreign jurisdiction in appropriate circumstances Basis Sovereign equality and independence Historical approach Absolute immunity Modern approach Restrictive immunity Sovereign acts Generally protected Commercial acts May fall within exceptions Acta jure imperii Sovereign/governmental acts Acta jure gestionis Commercial/private acts Immunity from jurisdiction Protection against being subjected to foreign court proceedings Immunity from enforcement Protection against coercive measures against State property Waiver Possible under applicable law Key ICJ case Jurisdictional Immunities of the State (2012) Important instrument UN Convention on Jurisdictional Immunities of States and Their Property, 2004

Quick Revision

• State Immunity protects a State from the jurisdiction of foreign courts in appropriate circumstances.
• It is based on sovereign equality and independence.
• The traditional doctrine was absolute immunity.
• Modern practice generally follows restrictive immunity.
• Restrictive immunity distinguishes:
  • acta jure imperii → sovereign acts;
  • acta jure gestionis → commercial acts.
• Sovereign acts generally retain immunity.
• Commercial activities may fall within recognised exceptions.
• Immunity from jurisdiction and immunity from enforcement are separate.
• A State may waive immunity in appropriate circumstances.
• State immunity is different from diplomatic immunity.
• The Jurisdictional Immunities of the State (Germany v. Italy), 2012 case is a leading ICJ authority.
• The UN Convention on Jurisdictional Immunities of States and Their Property, 2004 provides an important framework for State immunity.
• Serious violations of International Law do not automatically eliminate State immunity before foreign domestic courts.
• The essential principle is:

A sovereign State is generally immune from the jurisdiction of foreign courts for its sovereign acts, but modern International Law recognises important exceptions, particularly concerning commercial activities.

Conclusion

State immunity is a fundamental principle of International Law arising from the sovereign equality and independence of States. Historically, States were regarded as enjoying broad or absolute immunity from the jurisdiction of foreign courts. Modern State practice, however, has largely adopted the restrictive doctrine of immunity, under which protection generally remains for sovereign governmental acts, while certain commercial and private-law activities may fall within recognised exceptions. The distinction between acta jure imperii and acta jure gestionis is therefore central to the modern doctrine. Another important distinction is between immunity from jurisdiction and immunity from enforcement: a State may be subject to proceedings in certain circumstances while its sovereign property may still remain protected from execution. The Jurisdictional Immunities of the State (Germany v. Italy), 2012 case is a leading authority demonstrating the continuing importance of State immunity even where proceedings concern serious violations of International Law. Ultimately, State immunity seeks to balance the principle of sovereign equality with the need for accountability in international commercial and legal relations.