Jurisdictional immunity of the state: evolution of the doctrine
Abstract
One of the key problems in the judicial consideration of compensation claims for damage caused to the health, life or property of Ukrainian citizens as a result of the armed aggression of the Russian Federation is overcoming the jurisdictional immunities of a foreign state. The existence of significant gaps in Ukrainian legislation regarding the regulation of restrictions on the jurisdictional immunity of a foreign State when a court considers private law disputes involving such a State gives rise to an urgent need to study the main provisions of the doctrine of jurisdictional immunity of a State with due regard for current trends in the development of private international law.
The purpose of the article is to demonstrate the achievements in legal science in the development of the doctrine of jurisdictional immunity of a foreign state in private law disputes and to identify further trends in its development with a view to taking it into account when drafting future national legislation.
The main stages and trends in the development of the doctrine of jurisdictional immunity of a foreign state in private international law have been studied. The evolution of international and national legislation, as well as the case law of national and international courts on the application of foreign state immunity in court proceedings has been considered. The tendencies in the development of the doctrine of jurisdictional immunity of the State in private law disputes involving foreign persons have been identified.
It has been concluded that the doctrine of jurisdictional immunity of the State in private international law has undergone significant development and changes over the past two centuries. At the present stage, the doctrine of jurisdictional immunity of a foreign state is on the threshold of a new period of development of the doctrine i.e. a period of further limitation of state immunity in favour of human rights, ensuring the necessary balance between state immunity and the right of an individual to access to court and a fair trial. At the international level, an approach is emerging whereby a state’s jurisdictional immunity should be interpreted in accordance with and in the light of jus cogens rules, in particular in cases of compensation for damage to life, health or property caused by armed aggression by a foreign state.
Downloads
References
Fox H. and Webb P., 2013. The Law of State Immunity. 3rd ed. Oxford University Press.
Hirenko O.T., 2009. Modern trends in the regulation of jurisdictional immunities in international private law [Suchasni tendentsii rehuliuvannia yurysdyktsiinykh imunitetiv u mizhnarodnomu pryvatnomu pravi]. Abstract of Ph.D. dissertation. Taras Shevchenko Kyiv National University.
Dovhert A.S. and Kysil V.I. (eds), 2012. International private law. General part [Mizhnarodne pryvatne pravo. Zahalna chastyna]. Kyiv: Alerta.
Fedyniak H.S. and Fedyniak L.S., 2009. International private law [Mizhnarodne pryvatne pravo]. 4th ed. Kyiv: Atika.
Caplan L.M., 2003. State Immunity, Human Rights, and Jus Cogens: A Critique of the Normative Hierarchy Theory. The American Journal of International Law, Vol. 97, No. 4, pp. 741-781. https://doi.org/10.2307/3133679.
Badr G.M., 1984. State Immunity. An Analytical and Prognostic View. Springer Dordrecht. https://doi.org/10.1007/978-94-015-1181-0.
Korniichuk Ye.V., 2008. Jurisdictional immunities of states and their property: development trends in international and domestic law [Yurysdyktsiini imunitety derzhav ta yikhnoi vlasnosti: tendentsii rozvytku v mizhnarodnomu ta vnutrishnomu pravi]. Abstract of Ph.D. dissertation. Kyiv.
Zhushman V.P. and Shumilo I.A. (eds), 2011. International private law [Mizhnarodne pryvatne pravo]. Kharkiv: Pravo.
Dakhno I.I., 2004. International private law [Mizhnarodne pryvatne pravo]. 2nd ed. Kyiv: MAUP.
Byers M., 1995. Custom, Power, and the Power of Rules. Michigan Journal of International Law, Vol. 17, Iss. 1, pp. 109-180.
Whytock C.A., 2013. Foreign State Immunity and the Right to Court Access. Boston University Law Review, Vol. 93, pp. 2033-2093.
Fox W.T.R., 1941. Competence of Courts in Regard to Non-Sovereign Acts of Foreign States. The American Journal of International Law, Vol. 35, No. 4, pp. 632-640. https://doi.org/10.2307/2192564.
Lauterpacht H., 1951. The Problem of Jurisdictional Immunities of Foreign States. British Year Book of International Law, Vol. 28, pp. 220-272.
Giuttari T.R., 1970. The American law of sovereign immunity: an analysis of legal interpretation. Praeger Publishers.
Webb P., 2004. United Nations Convention on Jurisdictional Immunities of States and Their Property. [online] Audiovisual Library of International Law. Available at https://legal.un.org/avl/ha/cjistp/cjistp.html [Accessed 20 March 2023].
Krajewski M. and Singer C., 2012. Should Judges Be Front-Runners? The ICJ, State Immunity and the Protection of Fundamental Human Rights. Max Planck Yearbook of United Nations Law, Vol. 16, pp. 1-34.
Garnett R., 2015. Foreign State Immunity: A Private International Law Analysis. In: Orakhelashvili A., Research Handbook on Jurisdiction and Immunities in International Law. Edward Elgar Publishing, 2015. Pp. 297-318.
Garnett R., 1999. Should Foreign State Immunity Be Abolished? Australian Yearbook of International Law, Vol. 20, pp. 175-190.
McGregor L., 2007. Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty. The European Journal of International Law, Vol. 18, Iss. 5, рр. 903-919. https://doi.org/10.1093/ejil/chm048.
McGregor L., 2006. State Immunity and Jus Cogens. The International and Comparative Law Quarterly, Vol. 55, No. 2, pp. 437-445. https://doi.org/10.1093/iclq/lei091.
Cherniak Yu., 2022. Jurisdictional immunity of a foreign state in civil cases for damages: Qui Vadis [Yurysdyktsiinyi imunitet inozemnoi derzhavy u tsyvilnykh spravakh pro vidshkoduvannia shkody: Qui Vadis]. [online] Judicial legal newspaper. Available at https://sud.ua/ru/news/blog/232109-yurisdiktsiyniy-imunitet-inozemnoyi-derzhavi-u-tsivilnikh-spravakh-pro-vidshkoduvannya-shkodi-qui-vadis [Accessed 20 March 2023].
Copyright (c) 2023 T. V. Stepanenko
This work is licensed under a Creative Commons Attribution 4.0 International License.
