외교안보연구소 발간자료

Recent Trends in the Restrictive Approach to Sovereign Immunity and Policy Implications

Recent Trends in the Restrictive Approach to Sovereign Immunity and Policy Implications

Recent Trends in the Restrictive Approach to Sovereign Immunity and Policy Implications

Sovereign immunity is one of the fundamental principles of international law\ by which one sovereign state is exempt from the jurisdiction of  foreign national courts based on the principle of sovereign equality. The absolute approach to sovereign immunity\ which upholds that a sovereign state could not be tried before a court of another sovereign state in any circumstances\ prevailed in the early stages of the development of the doctrine. However\ with more active and frequent exchanges between sovereign states\ the restrictive approach to sovereign immunity\ which grants immunity only in relation to activities involving an exercise of sovereign power\ and therefore denying immunity for conduct based on commercial activity\ is gaining ground. Moreover\ as an increasing number of victims of serious human rights violations have been filing a lawsuit against perpetrators before their national courts\ the question of whether sovereign immunity can be granted to a state in cases of serious violations of international law is emerging as a critical issue. In South Korea\ the grant or denial of state immunity for serious human rights violations began to draw attention around January and April in 2021 with a South Korean court ruling over the Comfort Women issue. This paper aims to examine recent trends regarding the issue and draw policy implications for Korean diplomacy.

At the request of the United Nations General Assembly in 1977\ the International Law Commission (ILC) adopted the “Draft Articles on Jurisdictional Immunities of States and Their Property” in 1991 to develop the theory of sovereign immunity into a coherent principle of international law. The document eventually adopts a restrictive approach to sovereign immunity by stating cases where a sovereign state cannot invoke immunity from Article 10 to Article 17. However\ it does not mention whether state immunity can be denied even in the cases of serious violations of international law such as gross human rights abuses. In 1999\ the ILC attempted to advance relevant discussions by adopting the issue of “exceptions to state immunity for violations of  jus cogens norms” as its official agenda to fill this vacuum in international law. However\ it was considered premature to draw any conclusions for codification. Accordingly\ various domestic courts have different interpretations on the issue of state immunity and jus cogens norms.  

With the development of international human rights law\ greater emphasis is now placed on individual human rights and victims’ rights. It is argued that sovereign immunity should be limited in extremely exceptional and extraordinary circumstances to at least protect victims’ right to access justice and a fair trial such as a situation where victims have no other means of redress. On the other hand\ some national courts and scholars argue that under the normative hierarchy theory\ elimination of sovereign immunity is lawful if a state violates peremptory norms of general international law (jus cogens)\ because peremptory norms\ which reflect and protect fundamental values of the international community\ are hierarchically superior to the doctrine of sovereign immunity.

Moreover\ since it is possible to hold a head of state criminally responsible under international law in international criminal procedures like the International Criminal Court (ICC) for serious human rights violations that constitute international crimes\ some scholars claim that a state should similarly not be entitled to sovereign immunity if it commits serious human rights violations.
 
In 2012\ the International Court of Justice (ICJ) rendered its judgment on this issue of state immunity and jus cogens norms in the case concerning Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening). In its judgment\ the court recognized the procedural nature of the rule of state immunity\ noting that the rules of state immunity were confined to determining whether or not the courts of one state could exercise jurisdiction in respect of another state\ and thus entirely distinct from the substantive law which determines whether a conduct is lawful or unlawful. The argument of the ICJ is that there is no conflict of rules\ because the rules address different matters: procedure and substance. The ICJ held that regardless of whether Germany’s acts amount to violations of peremptory norms\ the action of the Italian courts in denying Germany’s immunity constituted a breach of Italy’s international obligations as the courts addressed an issue of a substantive character before a procedural matter.  
 
As the case of Jones vs. United Kingdom (2014) and the case of Al-Adsani vs. United Kingdom (2014) were brought to the European Court of Human Rights (ECHR)\ there has been an increased focus on victims’ right to access justice and a fair trial. Nevertheless\ the Court upheld Saudi Arabia and Kuwait’s claim of immunity; it ruled that the right of access to a court is not absolute\ and the grant of sovereign immunity to a state in civil proceedings pursues the legitimate aim of complying with international law. 
 
Since a South Korean court’s ruling on the “comfort women” issue can have a significant impact on Korea-Japan relations\ it would be necessary to closely monitor recent developments in the application of the doctrine of sovereign immunity abroad and explore ways to resolve the issues between Korea and Japan over wartime history. Also\ it is important to build consensus on the issue of sovereign immunity in Korea by encouraging in-depth discussions on this matter. Going forward\ the Korean government could consider formulating a foreign policy approach for greater participation in the creation of customary international law on sovereign immunity as well as the codification of international law. 


* Attached the File

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KOR