Denying Foreign State Immunity on the Grounds of the Unavailability of Alternative Means
| Date | 01 September 2008 |
| Published date | 01 September 2008 |
| Author | Mizushima Tomonori |
| DOI | http://doi.org/10.1111/j.1468-2230.2008.00713.x |
Denying Foreign State Immunity on the Grounds of the
Unavailability of Alternative Means
MizushimaTomonori
n
Granting immunity from suit to a foreign state or an international organisation, deprives the
plainti¡ of access to court and appears incompatible with the rule of law. Since the European
Court of Human Rights judgment inWa i t e vGermany (1999),the availability of alternative means
for dispute settlement has been emphasised in the context of international organisation immu-
nity. Howeveri nthe case of foreign state immunity,thi s approachwas not taken bythe European
Court of Human Rights in Al-AdsanivUnitedKingdom(2001) nor bythe House of Lords in Jone s v
Ministry of the Interiorof Saudi Arabia (2006). Likewise, foreign state immunity would be granted
under the UN State Immunity Convention of 2004, regardless of whether there are alternative
means.This Convention, ratherthan e nhancing the rule of law, could lead to its attenuation.That
several of these cases involve immunity in cases of torture sharpens their sensi tivity.
INTRODUCTION
Addressing the issue of foreign state immunity, Henkin stated in his Hague
lecture of 1989:
There is little likelihood that absolute immunity wil l again be the general norm . . .
On the other hand, for the foreseeable future, surely, there is little likelihood that
State immunity will be abolished: States . . . are wedded to their immunity by
pride, tradition and inertia .. . The lawof immunity, then, will re£ect some kind
of ‘restricted theory’.
1
Indeed, the United Nations Convention on Jurisdictional Immunities of States
and Their Property (UN State Immunity Convention),
2
which was adopted on
2 December 2004, does re£ect a kind of restrictive theory.
3
On the one hand, this
Convention does not support absolute immunity. For instance, a state cannot
invoke immunity in proceedings arising out of a commercial transaction in
which the state engages (Article 10). On the other hand, this Convention does
n
Associate Professorof International Law,Graduate School of Law, NagoyaUniversity. Researchwork
for this article was supportedby KAKENHI, No 19730040, a Grant-in-Aidfor Young Scientists (B), in
2007^2008. I wish to thank the anonymous referees for helpful comments.The usual disclaimers apply.
1 L. Henkin, ‘International Law: Politics,Values and Functions. General Course on Public Interna-
tional Law’(1989)216 Collected CoursesofThe HagueAcademy ofInternationalLaw 9, 32 8.
2 For the text,se eGA Res 59/38, 2 December 2004, annex.
3 Forthi s Convention,see generally G. Hafner andU. K˛hler,‘TheUnited Nations Conventionon
Jurisdictional Immunities of States and Their Property’ (2004)35 Netherlands YIL 3; G. Hafner
and L.Lange,‘La convention des NationsUnies surles immunite
Łs juridictionnellesdes E
Łtats et de leurs biens’
(2004) 50 Annuaire Francais de DroitInternational 45; D.P. Stewart,‘The UNCo nvention on Juris-
dictional Immunities of States and Their Property’(2005) 99 AJIL194; I.Pi ngel,‘Observations surle
convention du 17 janvier2005 surles immunite
ŁsjuridictionnellesdesE
Łtats et de leursbiens’(2005)132Journal
du DroitInternational( JDI) 1045; and the six shorter articles published in (200 6)55 ICLQ 395.
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2008) 71(5) 734^752
not aim at abolishing foreign state immunity. Article 5 provides: ‘A State enjoys
immunity, in respect of itself and its property, from the jurisdiction of the courts
of another State subject to the provisions of the present Convention.’ Given that
foreign state immunity restricts private persons’ access to the courts of a forum
state and that ‘in civil matters one can scarcely conceive of the rule oflaw without
there beinga possibility of having access to thecourts’,
4
it seems contradictory for
such a convention to claim that it‘would enhance the rule of law. . . particularly
in dealings of States with natural or judicial persons’
5
while providing for juris-
dictional immunity, however restrictive.
This article will examine the relationship between foreign state immunity and
the rule of lawin the light of recentcase law. It is widely known that the European
Court of Human Rights recently made landmark decisions about the extent to
which jurisdictional immunity of an international character might be compatible
with the‘right to a court’ embodied in Article 6(1) of the European Convention
on Human Rights (ECHR):
6
Waite and Kennedy vGermany
7
concerned the
immunity of an international organisation and Al-Adsani vUnited Kingdom
8
con-
cerned thatof a foreign state. A comparisonof these two judgmentswill bring to
light the issue of the availabilityof alternative means for thosewho are prevented
from having access to a speci¢c forum by immunity rules. I will then analyse
subsequent decisions by domestic courts in respect of each type of immunity. In
the context of foreign state immunity, reference is made to Jone s vMinistry of the
Interiorof the Kingdom of Saudi Arabia, which was decided bythe C ourtof Appeal in
2004
9
and by the House of Lords in 2006.
10
A study of these cases will lead to a
critical appraisal of the UN State Immunity Convention.
A COMPARISON BETWEEN THE WA I T E CASE AND THE AL-ADSANI
CASE
A commentator points out that ‘[b]y de¢nition, any grant of immunity, be it to
States or to international organizations . . . deprives the individual concerned of
his human rights, [eg under Article 6 of the ECHR], to have his case heard in
court.’
11
This appears to state the obvious, but mention should be made of the
UK’s argument in the Al-Adsani case. The UK submitted that ‘Article 6 could not
extend to matters outside the State’s jurisdiction, and that as international law
4GoldervUK Ser A No18,17 at [34].
5 UN StateImmun ity Convention,preamble.
6Golder vUK n 4 above, 18 at [36].The relevant part of Art 6(1) of the ECHR provides: ‘In the
determination of his civil rights and obligations . . . everyone is entitled to a fair and public hear-
ing . . . by an independent and impartial tribunal established by law’.
7 [1999] I ECHR Reports393.
8 [2001] XI ECHR Reports79.
9 [2004]EWCACiv 1394;[2005] QB 699.
10 [2006] UKH L 26; [2007] 1AC 270.
11 I. Seidl-Hohenveldern,‘FunctionalImmunity of International Organizations a nd Human Rights’
inW. Benedek et al (eds ),Developmentand Developing Internationaland EuropeanLaw:Essays inHonour
of Konrad Gintheron the Occasion ofhis 65th Birthday(Frankfurt am Mai n:Peter Lang,1999) 137,146.
MizushimaTomonori
735
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
(2008) 71(5) 734^752
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