LAW 221: INTERNATIONAL LAW Dr. Başak Çalı

Exceptions to state immunity under acte jure gestionis and acte jure imperii Outline

Circumstances of immunity Immunity from civil cases in domestic courts Immunity from civil cases in international courts Immunity from criminal cases in domestic courts Immunity from criminal cases in international courts Circumstances of immunity

Exceptions to state imunity in civil cases in domestic courts Cases where a state is not acting like a state; Cases where the state has acted ultra vires Exceptions to state imunity in civil cases in domestic courts

Exception A) Other situations Employment contracts Arbitration agreements Exception A) Other situations

Personal injuries or damages to property Killings, personal injuries, damages caused by armed forces B) States acting ultra vires : Immunity with regard to acte jure imperii

Distomo massacre

Civil proceedings with regard to a criminal act Can the State of Kuwait be sued in a domestic civil court for compensation for criminal acts of torture of its agents? Can the State of Germany be sued in Greek and Italian Courts with regard to compensation for killings by its armed forces during the 2nd world war? Civil proceedings with regard to a criminal act

Territorial tort principle: The injury must take place in the forum state and the person that carried out the act must also be present 2004 Convention adopts this principle Personal injury

States enjoy immunity in courts of forum state with regard to torture or other personal injury carried out in their own states States enjoy immunity in the court of forum state with regard to killings in times of armed conflict carried out in the forum state Principles in custom

State immunity and ius cogens ARGUMENT 1 State immunity is not jus cogens If it conflicts w a norm of jus cogens it must give way. State immunity and ius cogens

State immunity and ius cogens ARGUMENT 2 State immunity is a procedural rule. It does not relate to the substance of a dispute. State immunity and ius cogens

State Immunity and IHRL Kalogeropoulou v. Greece and Germany (2002) (ECHR) Applicant: State immunity conflicts with Article 6 of the ECHR, in particular the right to access to court The Court: In the light of laws of state immunity, observing international law in the interest of good relations between states and respecting the principle of sovereignty, the restriction to court is justified. State Immunity and IHRL

Enforcement of judgments Almost absolute immunity Explicit consent is required Enforcement of judgments

State Immunity for Heads of State Acting heads of government and other high ranking officers are protected by customary rules of state immunity. If an acting head of state is criminally held liable in the Court of another state, this is deterimental to the conduct of peaceful relations. State Immunity for Heads of State

Two types of heads of state immunity Immunity ratione persona: Covers ALL acts when in office. Immunity ratione materia: Covers sovereign acts AT ALL times. Two types of heads of state immunity

Chile enjoys immunity from civil proceedings Pinochet does not enjoy former head of state immunity with regard to acts of torture under the Convention against Torture. The Pinochet case(No 3) 2000

Acting heads of states and foreign ministers always enjoy immunity in courts of other states (immunity ratione persona) They many not enjoy immunity from criminal trials before international courts (e.g. Bashir indictment by the ICC) Congo v. Belgium (ICJ)

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