Emerging Voices: Unilateral Withholding of Sovereign Immunity as a Counter-Measure Against Jus Cogens Violations — the Human Rights Answer to Ferrini

[Patricia Tarre Moser is an Attorney at the Inter-American Court of Human Rights. The views expressed here are her own.]

The international law doctrine of sovereign immunity has proved to be a powerful obstacle to effective enforcement of international human rights.  Domestic and international courts have begun to carve out some exceptions to sovereign immunity in individual cases, but as the ICJ made clear in the Ferrini case, sovereign immunity continues to protect states from civil proceedings — even in cases where jus cogens violations take place. But what if a state, as a counter-measure, withheld sovereign immunity from another state that engages in a jus cogens violation?  In a recent article I propose that, in certain circumstances, for example a civil case brought in a State A for torture violations in State B, State A’s courts should be permitted to withhold sovereign immunity from State B as a form of countermeasure against State B.

The objective of the countermeasure must be to persuade the wrong-doing State to cease the violation and/or make reparations. The non-recognition of state immunity as a countermeasure could contribute towards this goal. Even if the hypothetical national court’s orders cannot be enforced against the wrong-doing State due to immunity from enforcement measures, the judgment itself serves as reparation to the victims.

Using torture as an example, my proposal works as follows: after the torture victim files a claim against the State B before a Court of State A, the latter has to undertake a prima facie analysis of whether the alleged victim was subjected to torture and whether the torture was attributable to State B. If so, State A’s Court has to determine whether the non-recognition of State B’s immunity would be proportionate to the injury and to the gravity of the violation that caused the injury.  Additionally, while assessing the proportionality of the measure, the Court would need to take into account the rights of all parties involved: the victim, the State A and State B.

In order to measure proportionality, I will use the formula most commonly used in international human rights law in cases of restrictions on rights.  Applying this formula, we must first determine whether the countermeasure is appropriate to achieve its objective.  As stated above, the non-recognition of state immunity contributes to protect the victim’s right to reparation. Additionally, this countermeasure reinforces the international community’s interest in compliance with jus cogens norms. Consequently, the non-recognition of state immunity is a suitable measure.

The second step is to determine whether the countermeasure is the least intrusive means capable of achieving the desired result.  One option could be a diplomatic request to State B to repair the damage caused. This measure would be less intrusive than the non-recognition of state immunity. However, it is not capable of achieving the same result of ensuring some form of reparation as well as reinforcing the importance of the prohibition of torture.  Perhaps another measure that is capable of achieving these same results would be to seize the assets of the wrong-doing State and give them to the victim. This measure, however, is more intrusive than the non-recognition of state immunity as part of a judicial proceeding.

The third step is to determine whether the countermeasure is proportionate to the interest (that is, the right) being protected.  Within this step we must take into account the injury suffered, the gravity of the internationally wrongful act, and the rights in question.  On the one hand, we have the torture suffered by the victim and the special interest of the international community in prohibiting torture, which demonstrates the gravity of the violation. On the other hand, there is the injury to the sovereignty of State B if  its state immunity is not recognized.

The non-recognition of state immunity is not a minor interference on the sovereignty of the wrong-doing State. However, state immunity is not absolute. International law provides exceptions for state immunity and the State itself is able to waive its own state immunity.  The same is not true with torture. The right to be free from torture is an absolute right.  Even though the right to receive reparations for torture is not an absolute right, we need to put on the same side of the balance the gravity of the initial act (torture) together with the right of State A to enforce the erga omnes obligations arising out of the jus cogens character of torture. Consequently, the side of the balance offering the possibility of even slightly repairing the damage caused by the use of torture outweighs the interference with the wrong-doing State’s sovereignty caused by the refusal to recognize its immunity.  Thus, the non-recognition of state immunity in the case of torture can be viewed as a proportional measure. Accordingly, if State A decides to resort to the counter-measure, it must first request that State B repair the damage. This condition could be complied with by a notification issued by the national court and sent to State B’s embassy in State A. After all these conditions are complied with, the non-recognition of state immunity in the case of civil claim for torture could be a valid countermeasure under international law. The same analysis can apply to other jus cogens violations.