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State Immunity vs. Fundamental Human Rights

About The Author

Ivonna Beches (Writer)

Ivonna is a third year law student at Durham University, currently undertaking a study year abroad at the University of Groningen in the Netherlands. Ivonna aspires to be a barrister, and has a keen interest in immigration law. Outside her studies, Ivonna is a keen writer, and is currently working on a novel.

State Immunity: The Basics

‘State immunity’ grew from the need to protect officials or representatives of foreign states, and for a long time was concerned mainly with the jurisdiction of states over the warships and trading ships belonging to other states. In the case of The Shooner Exchange v McFaddon, the concept of state immunity was described as states agreeing to “waive the exercise of a part of [their] complete exclusive territorial jurisdiction” in favour of promoting good relations between states. Prior to 2004 no international convention setting out the remits of state immunity existed.  However, 2004 saw the UN General Assembly adopt the United Nations Convention on Jurisdictional Immunities of States and their Property, which sets out a restrictive doctrine of state immunity in national courts.

With regards to civil proceedings, the Convention sets out several restrictions where state immunity cannot be invoked. For example, under Article 12 there is no state immunity where proceedings are brought against the state demanding compensation for death or personal injury, or damage to property. Unfortunately, this provision is rather narrow, as it only invokes the exception in cases where the act was perpetrated in the territory of the state where proceedings are begun. As a result, where foreign nationals are wronged by a state they have no recourse of action and cannot ask for compensation under the aforementioned convention or any similar instrument. The concept of state immunity is applied, and the state can get away scot-free.

It is important to note however that the UN convention on Jurisdictional Immunities was created through customary international law and both national and international courts will attempt to continue to rely on state practice to determine answers to questions not covered by the convention. For example, in Jones and others v UK, the case that is the focus of this article, the judgment relied heavily on comparative law, considering in detail the approach that other national courts have taken in relation to the question of state immunity.  The general rule is that the answer to the question lies where state practice is most uniform.  With regards to the relationship between state immunity and freedom from torture and indeed the provision of any other fundamental right, there is a lack of clear consensus (the case of Ferrini v Germany and the appeal, Germany v Italy, is perhaps the best example) and the law does remain largely in flux leading to confused and seemingly unfair decisions as the one in Jones and others v the UK.

Introduction to Jones and others v UK

On the 14th of January 2014, the European Court of Human Rights presented its judgement in the case of Jones and others v UK. The case involved two applications against the United Kingdom lodged by individual persons following Jones v The Ministry of Interior of the Kingdom of Saudi Arabia where the House of Lords upheld a decision to accord state immunity to Saudi Arabia and Saudi Arabian officials in a civil suit brought against them in UK courts on allegations of torture and false imprisonment. The European Court of Human Rights was asked to decide whether the House of Lords’ decision had breached Article 6(1) of the ECHR, namely the obligation to grant the individuals “a fair and public hearing”. The judgement stood almost unanimously (six to one) in favour of the decision that there had been no breach. This entailed that state immunity extends completely over any civil proceedings brought against a state and that public officials (when acting within their official capacity) are also afforded the same level of immunity.

This decision does seem, at first glance, to be a direct affront to the concept and purpose of individual human rights, as they are placed second to the effort of maintaining the sovereignty of states; and, for the most part, this is an accurate interpretation of the situation. However, the decision as a whole does need to be deconstructed in order to achieve a greater understanding of the different elements involved in it, as well as reconcile it with the rather optimistic statements made by the ECtHR (pg 58 at 213) that there is:

some emerging support in favour of a special rule or exception in public international law in cases concerning civil claims for torture lodged against foreign State officials...

 and that:

...in light of the developments currently underway in this area of public international law, this is a matter which needs to be kept under review by Contracting States.

The Domestic Case

The original case involved four individuals, Messrs Jones, Mitchell, Sampson and Walker, who had issued High Court proceedings against Saudi Arabiaand its officials claiming aggravated damages for assault and battery resulting from torture and false imprisonment. Following the invocation of the plea of state immunity by Saudi Arabia, the decision in the first instance stopped proceedings. Master Whitaker relied on the State Immunities Act 1978 (domestic legislation that sets out the same boundaries to immunity as the aforementioned UN Convention), and stated that (at 33): “...the Act deprives [him] and the English courts of jurisdiction over the first defendant (the State of Saudi Arabia) in this case.” He further declared that taking away immunity from the individual officials involved would take away the overall protection to states offered by the 1978 Act, and thus found in favour of both defendants.

The claimants appealed against this decision. The Court of Appeal joined the claims and upheld the idea of immunity as far as the state as a separate entity was concerned, but claimed that the specific state officials involved in the acts could be held responsible as individuals. The argument relied on the decision in Pinochet and on the opinion, as put forth by Mance LJ that the pain and suffering caused by the act of torture does not “lend to the acts of torture an official or governmental character or nature” and so that even when committed in an official capacity they cannot be said to represent the state. As such they should not be granted immunity. This decision was deconstructed and overturned by the House of Lords.

The final judgement presented by the law lords dealt with the immunity of the state with reference to previous decisions, in a similar manner to the lower courts.   Most notably, the relevance of Al-Adsani v UK was relied on. The facts in Al-Adsani are almost identical to Jones, and the ECtHR held that the State retains immunity even in civil cases relating to the torture of the claimant. The exact reason given was, as per judge Pellonpaa:

International cooperation, including cooperation with a view to eradicating the vice of torture, presupposes the continuing existence of certain elements of a basic framework for the conduct of international relations. Principles concerning State immunity belong to that regulatory framework, and I believe it is more conducive to orderly international cooperation to leave this framework intact than to follow another course.

In regards to the liability of separate officials however, Lord Hoffman explained that the decision taken in the Court of Appeal suggested that acts of torture lost their official nature by virtue of the Torture Convention, using Pinochet as the primary example. In other words, the officials could not have been acting on behalf of the state, as international law could not have created this international criminal offence of torture, simply to have it trumped by the concept of state immunity. In response, Lord Hoffman drew attention to a particular definition provided in Pinochet (No. 3):

The very official or governmental character of the acts which is necessary to found a claim to immunity ratione materiae, and which still operates as a bar to the civil jurisdiction of national courts, was now to be the essential element which made the acts an international crime.

He expanded further on this point himself when he went on to explain that:

The reason why General Pinochet did not enjoy immunity ratione materiae was not because he was deemed not to have acted in an official capacity; that would have removed his acts from the Convention definition of torture. It was because, by necessary implication, international law had removed the immunity.

State officials always act in their public capacity on behalf of the State they represent. The concept of the personality and the actions of the state relies on being able to recognise the aforementioned individuals’ actions as official, seeing as the state is not a separate entity of its own. What the case of Pinochet established, was that in criminal cases, torture, in its official form, is always unlawful. As such, a better way for the Court of Appeal to have approached the issue would have been to suggest that this sort of exception is also forming in civil cases. However, part of the House of Lords judgement did follow that line of reasoning and concluded that there was not sufficient consensus across other national courts to create such an exception. The ECtHR came to a similar conclusion.   

The ECtHR Case

The ECtHR did not stray very far from the House of Lords’ decision. The judgement involved an attempt to find consensus with regards to the application of state immunity in civil proceedings, and the findings stood in favour of wide reaching , unrestricted state immunity.

Further, in order to establish the relationship between fundamental rights (also referred to as jus cogens norms) and state immunity, the Court relied on the case of Jurisdictional Immunities of the State (Germany v Italy). This case set out that immunity was a procedural norm which defined the remit of jurisdiction of a state, completely separately from considerations regarding whether or not an act of the state was or was not lawful. In other words, regardless of what act the accused state has committed, because of the existence of this procedural rule, the state to which the claimants belong has no authority to rule on it or demand compensation for its nationals. The decision in Jurisdictional Immunities also made clear however that the ruling does not affect the conduct regarding holding individual officials responsible for their actions in criminal proceedings.

This decision that there is no exception for individual officials in civil proceedings does follow the general consensus as derived from the judgements of the courts of member states. While this affected the decision in Jones, there was also recognition of the fact that opinions may be changing.

Spotlight: The Immunity of State Officials

In 1999, a working group was set up by the International Law Commission to present preliminary comments on the Draft Articles of the UN State Immunity Convention (2004). It found that recent developments in State practice and legislation suggested some support of the view “that State officials should not be entitled to plead immunity for acts of torture committed in their own territories in both civil and criminal actions”. The Convention remained silent on both these possible exceptions, but customary law did slowly create an exception for criminal proceedings. The ECtHR took into consideration the working group’s findings as possible indication of a changing consensus with regards to public opinion.

The intervention submitted by INTERIGHTS makes an argument in favour of a civil law exception from a more practical point of view. It explains the importance of holding the officials accountable simply because no other remedies are available to the applicants, thus implying that the decision of the House of Lords not only supports the idea of state sovereignty but it does so at the expense of the applicants’ right to a fair trial and remedies.

Moreover, the dissenting judgement of Judge Kalaydjieva (ECtHR) sets out to dispel what she presents as an important, widely held myth. She argues that the successful functioning of the concept of immunity is not dependent on always extending it to state officials.  The fact that officials are the instruments of the state and are acting on its behalf is the reason why they should be held accountable for torture in both criminal and civil law. As such, the primary purpose of the international laws on torture is to prevent states from taking responsibility for guilty individuals and thus indirectly condoning their actions.

While both of these arguments are sound and very well constructed, everything hinges on these opinions becoming a part of state practice for any substantial change to take place.

Conclusion

This reluctance of states to provide a definitive answer as to whether and when this restriction to state immunity should exist seems to remain the reason why both national and international courts are unlikely to take a more drastic and perhaps sufficiently progressive view on the matter. Returning to the point made at the start of this article, the optimistic tone taken by the ECtHR is most likely a result of the fact that the judges who were part of the majority decision recognize the merits of the dissenting argument. To put it more plainly, it is not difficult to see why it would be in the interest of wronged individuals to have a remedy in civil law against officials of foreign states, especially in cases involving fundamental rights.  

However, due to the nature of international law as a body of rules created by states to regulate their own conduct and the nonexistence of a higher authority to rule on the matter, it is understandable that courts are tentative to impose a certain conduct onto states. As a result, progress can only be made in this area of law if a sufficient amount of states clearly endorse what can easily be claimed to be very much a common sense exception to an archaic and highly rigid rule.         

Further Reading

H. Fox Restraints on the Exercise of Jurisdiction, in Malcom D. Evans International Law (3rd ed, Oxford University Press, 2010)

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Tagged: Human Rights, International Law

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