State immunity and human rights: heads and walls, hearts and minds.

• Author: O'Keefe, Roger
• Position: Symposium: Foreign State Immunity at Home and Abroad

ABSTRACT

This Article suggests that arguments against the availability of state immunity as a bar to civil actions alleging internationally wrongful ill-treatment abroad are not only destined to fall by and large on deaf ears but are also misdirected as a matter both of fairness and of the ultimate policy objectives of human rights advocates. It would make more sense for victims' interest groups to target the failure of allegedly responsible states to afford victims the opportunity of a remedy and the failure of victims' states of nationality to do enough to defend their nationals' interests.

TABLE OF CONTENTS I. INTRODUCTION II. PREFATORY CLARIFICATIONS III. THE CURRENT STRATEGIC FOCUS ON STATE IMMUNITY A. Heading Nowhere 1. Obstacles to the Circumvention of Immunity from Proceedings by National or International Courts (a) The Case Law of the ECtHR (b) The Statutory Embodiment of State Immunity in Certain Jurisdictions (c) The UN Convention on Jurisdictional Immunities of States and Their Property (2004) (d) The Unpersuasiveness of the Arguments (e) Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening) 2. Obstacles to the Legislative Abrogation of Immunity from Proceedings 3. Obstacles to Redress Even Absent Immunity from Proceedings B. Misdirected in Terms of Fairness C. Misdirected in Terms of Ultimate Policy Objectives IV. SHIFTING THE STRATEGIC Focus V. CONCLUSION I. INTRODUCTION

It is not unusual these days for natural persons alleging ill-treatment abroad at the hands of a foreign state in violation of some rule of international law pertaining to the humane treatment of individuals to attempt to sue that state for damages in the courts of another state. It may be that the chosen forum state is the complaining party's state of nationality or residence, or it may simply be that the forum state's law, courts, and perhaps even legal profession are more conducive to civil actions of this sort. Like many trends, this one started in the United States, in this instance in the wake of the rediscovery of the Alien Tort Claims Act in 1980, (1) and spread from there to Australasia, Canada, Europe, and from the last to the European Court of Human Rights. (2) In nearly all such actions brought against the allegedly responsible foreign state as such or against its government or some organ thereof or--leaving aside the eccentric approach taken in at least one federal circuit in the United States (3)--against its serving or former officials for acts performed in their official capacity, the claim has been defeated by the defendant's procedural plea of state immunity, an immunity from the jurisdiction of its courts which the forum state is generally obliged as a matter of international law to accord foreign states in respect of acts of an inherently sovereign nature. (4) Judgments to this effect have come under criticism from victims' advocates and campaigners, (5) as well as from a range of academic commentators; (6) and as one jurisdiction rebuffs such claims others are seized of them. The assumption on the part of opponents of state immunity in cases of this sort would appear to be that final victory, as a matter of both international and domestic law, is just a question of time.

This Article argues that any such assumption would be a mistake. The indications are instead to the contrary. There is little reason to think that many domestic courts or any international court will eventually sidestep state immunity as it pertains to civil actions alleging internationally wrongful ill-treatment inflicted abroad. Equally, the chance that many national governments will legislate or conclude a treaty to similar effect is slim. While those who contest the availability of state immunity in such cases seem ever intent on trying again, for the most part all they should realistically expect, in the words of Samuel Beckett, is to fail better. Moreover, even in the event of some, small success when it comes to overcoming immunity from proceedings, there remain other obstacles--in particular, immunity from measures of enforcement--which are likely, for the most part, to prove intractable.

Nor, the Article submits, need this be seen as a bad thing, at least in the abstract. (In any concrete, humanly deserving case, it can only be a tragedy.) To decry a domestic court's grant of state immunity to a foreign state defendant to such a claim or to berate a state's government for declining to abrogate such immunity by way of statute is to finger the wrong culprit--or, where the latter is also the victim's state of nationality, to finger the right culprit for the wrong thing. The rightful objects of opprobrium, and consequently those against which public campaigns for redress stand to have greater rhetorical purchase, are the foreign state that denies local or international remedies and the government of the state of nationality which makes no genuine effort to intercede with the allegedly responsible state on behalf of the victim. In addition, a focus on these actors in respect of these specific acts stands a better chance of attaining what ought to be the ultimate policy objective of victims' interest groups, namely universal subscription to the rule of international law.

What follows does not presume to provide a detailed alternative strategy for advocates of redress for death or personal injury caused by foreign states in alleged violation of rules of international law pertaining to the humane treatment of individuals--alternative, that is, to the current and mostly futile and misdirected attack on the availability or otherwise to those states of state immunity as a procedural bar to civil actions in the courts of other states. Indeed, the question need not be binary in the first place. Campaigners for redress may wish to continue to target state immunity in the hope of a breakthrough, albeit in the realistic expectation that none is very likely to be forthcoming, even as they recalibrate their efforts to place greater stress on other, rhetorically more attractive and maybe more promising arguments. This is, needless to say, a matter for them. The analysis in Part IV below seeks merely to sketch the outlines of a few possible courses of action, looking first at measures targeting the victim's state of nationality, which may or may not be the potential forum state in any related "human rights" case, and then at moves directed towards the allegedly responsible state. Some of these measures are admittedly of a generic and prospective bent. As a result, they may be of little practical help in relation to some individual cases of alleged past violations, even if others stand to be of more general benefit. Many of the suggestions involve no more than a continuation and renewal of emphasis on precisely the sorts of activities to which the organizational advocates of the denial of state immunity in "human rights" cases already lend their support. (7) To this extent, Part IV is acknowledged as both an exercise in preaching to the converted and a recommendation to others of existing best practice. It should also be conceded at the outset that none of these suggestions necessarily have a significantly greater chance of success than any legal challenge to the availability of state immunity in "human rights" cases. Even if some small but practically valuable progress is more likely than not to result, this simply remains to be seen. By the same token, however, none of the strategies proposed could fare appreciably worse than the focus on state immunity. Moreover, and just as importantly, even in the event of failure, the blame would lie where it should, namely with the victim's state of nationality and with the allegedly responsible state. Finally, even if the suggested measures should fail in the short term, the fact that most of them seek to respond with more than (completely understandable) expediency to the challenge of securing redress for victims of internationally unlawful ill-treatment at the hands of foreign states provides at least some small hope that each might contribute, even in failure, to the eventual, lasting resolution of the problem of civil impunity for international wrongs.

2. PREFATORY CLARIFICATIONS

   The term "human rights" is used in two different senses. It is often employed loosely to denote a generic concern, reflected in various branches of international law, for the humane treatment of individuals and certain groups. In this first sense, the label encompasses not only international human rights law properly so called but also international humanitarian law, prohibitions like those on the commission by a state of genocide, and sometimes even international criminal law. (8) In its second, alternative sense, the term "human rights" is limited to international human rights guarantees properly so called, viz those entitlements, opposable in principle to states on the international plane, which public international law, be it custom or treaty, vests in individuals and certain groups as an avowed function of their humanity. Used this way, the label refers strictly to the rights secured by universal instruments such as the two international covenants on human rights, (9) the International Convention on the Elimination of All Forms of Racial Discrimination, (10) the Convention on the Elimination of All Forms of Discrimination Against Women, (11) and so on; by regional instruments such as the European Convention on Human Rights (ECHR), (12) the American Convention on Human Rights (ACHR), (13) the African Charter on Human and Peoples' Rights, (14) and the like; and by customary international human rights law. While the second, legally more accurate meaning of "human rights" is to be preferred, (15) the first must also be acknowledged and engaged with.

   As for "state immunity," or foreign state immunity, by this is meant the immunity from the jurisdiction of its courts, premised on the sovereign...