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WHEN THE SUIT DOESN’T SUIT THEM: JURISDICTIONAL IMMUNITIES OF STATES…
II. International law background – customary and codified sources
of jurisdictional immunity of States
Likemanyother important concepts of international law, thenotionof jurisdictional
immunities originates in customary law, and attempts have been made to codify it in
various treaty law instruments. The first attempt was undertaken within the Council
of Europe and resulted in the
European Convention on State Immunity
(hereinafter
the “European Convention”), which was opened for signature by the Member States
in Basel (Switzerland) on 16 May 1972.
4
A more recent effort at a global level within
the United Nations produced the
Convention on Jurisdictional Immunities of States
and their Property
(hereinafter the “New York Convention”), which was adopted by
the United Nations General Assembly in December 2004 and opened for signature
by the UN Member States in New York on 17 January 2005.
5
Both the above mentioned conventions codify the relative (restrictive) concept
of jurisdictional immunity based on the distinction between acts committed
iure
imperii
and acts committed
iure gestionis
. Whereas the first group of acts refers to the
State exercising its sovereign rights by means of state power, the latter group of acts
is being treated in the same way as any acts committed by private individuals.
6
This
represents a major shift from the concept of absolute State immunity, where the mere
fact that a State was the defendant in a legal action brought by a private individual
was sufficient in itself for granting immunity from jurisdiction.
The above described concept of relative immunity is also confirmed in writings
of distinguished international law scholars. As M. Shaw noted, “
The majority of states
now have tended to accept the restrictive immunity doctrine and this has been reflected
in domestic legislation.
”
7
This ‘state of play’ was also recalled by the International
Court of Justice (hereinafter the “ICJ”) in the recent case
Germany v. Italy
concerning jurisdictional immunity against civil claims brought against Germany in
the Italian courts, seeking reparation for injuries caused by violations of international
humanitarian law committed by the German Reich during the Second World War:
“The Parties also differ as to the scope and extent of the rule of State immunity. In
that context,
the Court notes that many States (including both Germany
4
European Treaty Series (ETS)
, No. 74;
UNTS
, Vol. 1495, p. 182. To date only eight Member States have
ratified the European Convention, which is not an impressive number, and it has not entered into force yet.
5
The New York Convention currently (as of June 2013) has 28 signatory States, including 14 State
Parties which already deposited their instruments of ratification, acceptance, approval or accession,
but it has not entered into force yet. Art. 30 of the New York Convention provides that it will enter
into force on the thirtieth day after deposit of the thirtieth such instrument The Czech Republic, as
a signatory State, is willing to ratify the New York Convention and has initiated its internal ratification
procedure in 2013.
6
The modern State often acts and enters into legal relations with private individuals on an equal footing,
without exercising its sovereignty or its power as public authority. These legal relations may be,
inter
alia
, of business (commercial) or employment nature, and, according to general trend, they no longer
justify the absolute immunity from jurisdiction to be recognised.
7
Shaw, M. N.,
International Law
, (4
th
ed.), Cambridge University Press, 1997 (reprinted 2000), p. 499.