•  
  •  
 

Emory International Law Review

Thibault Moulin

Abstract

Thanks to their immunities, states are normally not subject to civil proceedings before foreign courts. While some may argue there are exceptions to this principle, in particular regarding acta de jure gestionis, the International Court of Justice refused to recognize the existence of further limitations to this principle in the Jurisdictional Immunities of the State case. However, even after the judgment, several questions remain unresolved. This article clarifies the boundaries of civil immunities in the field, and especially vis-à-vis state-sponsored crimes. This article finds that state-sponsored crimes may qualify as sovereign acts and that contradiction with jus cogens is not enough to lift immunity. However, this article argues that forum courts may always hear a case where harmful acts are committed by a foreign state in the national territory, even if armed forces are involved (i.e. the “territorial tort exception”). In addition, this article turns to human rights treaties (like the ECHR) and demonstrates that a contracting state has no material jurisdiction under the convention if the immunities of a foreign state are safeguarded and for acts committed outside the forum. If jurisdiction is found to exist, however, then the lack of a viable alternative remedy would generally result in a breach of the right to a fair trial.

Download

Share

COinS