Contradictions among various principles of international law are a major problem in international relations today. For example, the right of people to self-determination and the principle of territorial integrity is in conflict, and it is not decided which one is superior, which is why violent wars have been occurring around the globe. Similarly, there is the controversial principle of foreign state immunity, which prevents a state from sitting in judgement of another state. It fundamentally contradicts the right to court assess recognised and respected by various international agreements. There is an ongoing debate on this controversy; i.e., the superiority of either doctrine is not agreed upon universally. From the perspective of immunities from jurisdiction, foreign state immunity should be abolished to ensure that the fundamental right to court access can be fulfilled in international relations.
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First of all, the history of the addressed immunity should be explored to explain its relevance today. The doctrine of foreign state immunity originated in the 19th century as part of the general understanding that independent countries equally have the right to protect their national sovereignty (Fox & Webb 2013). In this context, a free state is immune from suit in the courts of a different state. However, the doctrine was challenged in the mid-20th century. World War II changed the international perception of absolute sovereignty as the cornerstone of foreign policy. International institutions were created to oversee countries’ activities and provide a jurisdiction that is above national jurisdiction; the purpose was to avoid major military conflicts, such as a world war.
The need for imposing such restrictions on the states’ immunity from foreign states’ jurisdiction was justified primarily by the considerations of the right to court access. Verdier and Voeten (2015, p. 209) explored 121 states that ‘switched from absolute to restrictive foreign state immunity;’ this number constitutes a majority of countries in the world. The authors stress that a restrictive immunity implies the possibility of instituting legal proceedings against a foreign state (or its representatives, such as government agencies) for their private or commercial activities. Whytock (2013) emphasises that the right to court access (recognised by the Universal Declaration of Human Rights and other international agreements) is undermined by the immunity because the latter suggests a denial of legal remedies, while a legal claim may be absolutely valid.
There are strong arguments both in favour of preserving the principle of foreign state immunity and for abolishing it. From the former perspective, immunity is a doctrine that reinforces equality among independent states and thus contributes to the balance in international relations (Whytock 2013). Also, this principle protects weaker countries (e.g., economically) from being prosecuted by stronger ones; as a result of such prosecution, the independence of a weaker state can be undermined. However, the immunity from foreign jurisdiction means that if a country, in fact, perpetrates a wrong against another country, it is to prosecute itself, which is an evident conflict of interest (Fox & Webb 2013). Also, the presence of this immunity is a factor in national governments’ impunity for violations of human rights and other crimes; if it is only the state itself that can take this state to court, there is the risk that actual illicit actions will go unpunished.
The principle of foreign state immunity was introduced to ensure that countries are equal, and their sovereignty is inviolable. However, as the humankind became disappointed in the absolute sovereignty and its role in the development of large military conflicts, restrictions were imposed on the immunity from a foreign jurisdiction. This was a right decision, and foreign state immunity should be abolished altogether because it undermines the right to court access and suggests that legal actions against countries can be taken by those countries themselves only, which fails to comply with the principle of impartiality injustice.
Fox, H & Webb, P 2013, The law of state immunity, 3rd edn, Oxford University Press, Oxford.
Verdier, PH & Voeten, E 2015, ‘How does customary international law change? The case of state immunity’, International Studies Quarterly, vol. 59, no. 2, pp. 209-222.
Whytock, CA 2013, ‘Foreign state immunity and the right to court access’, Boston University Law Review, vol. 93, no. 1, pp. 2033-2093.