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National Courts
Due to their very nature questions of immunity are most frequently argued before national courts. National court decisions therefore constitute an extremely important source for ascertaining the extent to which customary international law shields States and their officials from subjection to foreign jurisdiction.


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32 Ibid, para. 58. 33 As to the underlying methodological assumptions see below sub (2).
34 Al-Adsani (App. No. 35763/97) ECHR 2001-XI4, paras 35-67. 35 Ibid, paras 52-56. 36 See ibid, paras 53-54. 37 A strict balancing approach is favoured by Judge Loucaidis see ibid (diss. op. Loucaidis). 38 Ibid, para 56. 39 Ibid, paras 54, 56. 40 See ibid, para 53 (“…the Court … must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired …”) and para 56 (“It follows that measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court as embodied in Article 6 § 1.” [Emphasis provided]). 41 European Court of Human Rights (Grand Chamber), Behrami and Behrami v France and Saramati v France, Germany and Norway, App. Nos. 71412/01 and 78166/01, decision of 2 May 2007, available at www.echr.coe.int. See in this context also the opinion delivered by AG Maduro in C-402/05 P Kadi v Council and Commission (16 January 2008).
42 See also Judge Ress‟s criticism of the Court‟s self-restraint in European Court of Human Rights (Grand Chamber) Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi (Bosphorus Airways) v Ireland (App. No. 45036/98) ECHR 2005-VI (conc. op Ress), para 5. 43 See Rosalyn Higgins, Problems & Process: International Law and How We Use It (Clarendon Press, Oxford 1994) 81.


Thilo Rensmann
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The willingness of national courts to allow the traditional immunities of States and their officials to be set aside in cases of severe human rights violations depends both on the legal basis on which immunity is granted and on the status accorded to human rights under the domestic legal order in question. In jurisdictions such as the United Kingdom, the United States and Canada, in which the law of State immunity has been codified by an act of Parliament,44 the approach to this question is largely determined by the domestic immunity statute.
Since such statutes typically do not provide for a specific “human rights exception” immunity may only be disregarded if the violation of human rights fits one of the exceptions enumerated in the statute.45 Typically, however, none of these exceptions apply. Efforts to argue that human rights violations can be qualified as commercial acts,46 go beyond the official capacity of State officials,47 constitute an implied waiver48 or fall under the tort exception49 have for the most part failed. To date only the United States of America50 has enacted a specific immunity exception allowing tort actions against foreign States responsible for (or complicit in) certain serious human rights violations (torture, extrajudicial killing, aircraft sabotage or hostage taking).51 This exception is, however, only applicable if the plaintiff is a US citizen and the respondent State has been designated by the State Department as a “sponsor of terrorism”.52
Both in Italy and in Greece, where the highest courts have assumed that State immunity cannot be invoked in tort proceedings involving alleged war crimes and crimes against humanity,53 the judges are not confined by the straitjacket of a domestic immunity statute but are rather free to determine the reach of immunities with direct reference to customary international law. The absence of domestic codification allows a more activist approach which opens up the possibility of taking note of the progressive development of international human rights law and of the international legal order at large, in particular with regard to the legal consequences attached to breaches of jus cogens.54 In contrast, those common law courts which must adjudicate on the basis of a domestic immunity statute are often effectively insulated from such new developments at the international level.55 Since the limits of statutory interpretation hinder
44 See (British) State Immunity Act (1978); (US) Foreign Sovereign Immunities Act, 28 USC §§ 1602-1611; (Canadian) State Immunity Act, RSC 1985, c S-18.
45 Bouzari [2004] 243 OR (4th) 406, paras 57-58; Jones [2007] 1 AC 270, para 13 (per Lord Bingham), paras 39, 64 (per Lord Hoffmann); Saudi Arabia v Nelson, 507 U.S. 349, 355 (1993). 46 Rejected in Bouzari [2004] 243 OR (4th) 406 , paras 48-55; Saudi Arabia v Nelson 507 U.S. 349, 355 (1993) 356-363.
47 Rejected in Jones [2007] 1 AC 270, paras 72-97 (per Lord Hoffmann); Matar Matar v Dichter 2007 WL 1276960 (SDNY 2 May 2007); Samantar 2007 US Dist LEXIS 56227 (ED Va 1 August 2007); Belhas (n. 10). 48 Rejected in Princz 26 F 3d (DC Cir 1994) 1173; Sampson 250 F 3d 1145 (7th Cir 2001) 1156. 49 Rejected in Bouzari [2004] 243 OR (4th) 406 , paras 45-47; Al-Adsani v Government of Kuwait (1996) 107 ILR 536 CA. 50 Note, however, that Iran and Cuba, which have both been branded “State sponsors of terrorism” by the United States Government appear to have enacted similar legislation with a view to permitting civil actions against the United States as a reaction to the 1996 amendment of the Foreign Sovereign Immunities Act, see Congressional Research Service (Jennifer K. Elsea), „Suits Against Terrorist States By Victims of Terrorism‟, RL 31258 (17 December 2007), p. 53-4. 51 28 USC § 1605 (a) (7). 52 See 28 USC § 1605 (a) (7) (B). For references to the case law based on this exception and subsequent legislation aimed at enabling the plaintiffs to enforce the awarded compensation see Congressional Research Service (Elsea) RL 31258 (17 December 2007). Currently the list of “State sponsors of terrorism” includes Cuba, Iran, North Korea, Sudan, and Syria. Iraq and Libya have been struck off the list, see 22 CFR §126.1(a) (2002). 53 Ferrini (2006) 128 ILR 658; Prefecture of Voiotia (Case No 11/2000) (2007) 129 ILR 513, later overruled by Margellos (2007) 129 ILR 525. 54 See, e.g., the reference in Ferrini (2006) 128 ILR 658, para. 9, to Arts. 40 and 41 of the International Law Commission‟s Draft Articles on Responsibility of States for Internationally Wrongful Acts, UN GA Res 56/83 Annex (12 December 2001). 55 Bouzari [2004] 243 OR (4th) 406 , para. 67: “Even if Canada‟s international law obligations required that Canada permit a civil remedy for torture abroad by a foreign state, Canada has legislated in a way that does not do so. … Canada has clearly legislated so as not to create this exception to state immunity whether it has an international law obligation to do so or not.”

Immunity of States and Their Officials
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such courts from responding to the progressive “humanisation” of international law their jurisprudence cannot contribute to the State practice necessary to support an emerging “human rights exception”. Domestic immunity statutes thus exercise a considerable “ossifying” effect on customary international law.
The status of human rights within the domestic legal order provides another important conditioning factor. Courts, such as the Italian courts in the Ferrini case, which are familiar with arguments based on human rights values56 and corresponding protective duties will be particularly receptive to the argument that immunity claims must be balanced against the countervailing interests of the international community to avoid impunity and provide redress to the victims of serious human rights violations.57
It is interesting to observe that since the Human Rights Act58 entered into force in 2000, British courts have also displayed a more dynamic approach to ascertaining the proper balance between State immunity and human rights. A case in point is Jones v. Saudi Arabia.59 The Human Rights Act, by virtue of which the United Kingdom incorporated the European Convention on Human Rights into domestic law, requires British courts to interpret statutes as far as possible in the light of the Convention rights.60 In consequence, the State Immunity Act must now be construed in the light of international human rights as they have been incorporated by the Human Rights Act. In this sense, human rights – regardless of whether they are jus cogens or not – are accorded de facto a hierarchically superior position in relation to State immunity. By virtue of this elevated status British courts must take into account human rights standards when determining the ambit of the (national) rules on State immunity.
This was precisely the conceptual starting-point adopted by the Court of Appeal in the Jones case.61 Whereas the Court felt compelled by the Human Rights Act62 to follow the Al-Adsani precedent in granting Saudi Arabia immunity from jurisdiction, it held that the State Immunity Act did not extend immunity to the acting State officials, a constellation which, to date, has not been explicitly covered by the jurisprudence of the Strasbourg court. The fact that the House of Lords later overruled the Court of Appeal on this point63 does not detract from the more general observation that the domestic incorporation of human rights has enticed British judges to break the mould of traditional statutory interpretation and to explore the impact of human rights on the immunity of States and their officials beyond the confines of a narrow reading of the State Immunity Act. Had it not been for the Al Adsani precedent of the European Court of Human Rights, which must be taken into account by virtue of the Human Rights Act,64 British courts might have even been more daring in adjusting the immunities of States and their officials to the demands of today‟s “humanised” international legal order.
56 On the role of human rights values and protective duties in Italian law see Thilo Rensmann, Wertordnung und Verfassung (Mohr Siebeck 2007) 171-173, 295-298. 57 The activist approach followed by the Italian Corte di Cassazione in Ferrini (2006) 128 ILR 658 is in stark contrast to the judicial self-restraint exercised by British and Canadian courts, see Bouzari [2004] 243 OR (4th) 406 , para. 95 (“In future perhaps as the international human rights movement gathers greater force, this balance [between the condemnation of torture and the principle that states must treat each other as equals] may change, either through domestic legislation of states or by international treaty. … this is not a change to be effected by a domestic court.”); Jones [2007] 1 AC 270, para 63 (per Lord Hoffmann) (“It is not for a national court to „develop‟ international law by unilaterally adopting a version of that law which, however desirable, forward-looking and reflective of values it may be, is simply not accepted by other states.”). 58 Human Rights Act 1998 (c 42).
59 See above n 6. 60 Section 3 Human Rights Act (1998). 61 Jones v Ministry of Interior of Saudi Arabia [2005] QB 699. 62 See Section 2 para. 1 lit. a) Human Rights Act (1998). 63 Jones [2007] 1 AC 270, paras. 29-34 (per Lord Bingham), paras 65-101 (per Lord Hoffmann). 64 Section 2 para. 1 lit. a) Human Rights Act (1998).