1. LAW 221: INTERNATIONAL LAW
Dr. Başak Çalı

2. Exceptions to state immunity under acte jure gestionis and acte jure imperii
Outline

3. Circumstances of immunity
Immunity from civil cases in domestic courts
Immunity from civil cases in international courts
Immunity from criminal cases in domestic courts
Immunity from criminal cases in international courts
Circumstances of immunity

4. Exceptions to state imunity in civil cases in domestic courts
Cases where a state is not acting like a state;
Cases where the state has acted ultra vires
Exceptions to state imunity in civil cases in domestic courts

5. Exception A) Other situations
Employment contracts
Arbitration agreements
Exception A) Other situations

6. Personal injuries or damages to property Killings, personal injuries, damages caused by armed forces
B) States acting ultra vires : Immunity with regard to acte jure imperii

7. Distomo massacre

8. Civil proceedings with regard to a criminal act
Can the State of Kuwait be sued in a domestic civil court for compensation for criminal acts of torture of its agents?
Can the State of Germany be sued in Greek and Italian Courts with regard to compensation for killings by its armed forces during the 2nd world war?
Civil proceedings with regard to a criminal act

9. Territorial tort principle: The injury must take place in the forum state and the person that carried out the act must also be present
2004 Convention adopts this principle
Personal injury

10. States enjoy immunity in courts of forum state with regard to torture or other personal injury carried out in their own states
States enjoy immunity in the court of forum state with regard to killings in times of armed conflict carried out in the forum state
Principles in custom

11. State immunity and ius cogens
ARGUMENT 1
State immunity is not jus cogens
If it conflicts w a norm of jus cogens it must give way.
State immunity and ius cogens

12. State immunity and ius cogens
ARGUMENT 2 State immunity is a procedural rule. It does not relate to the substance of a dispute.
State immunity and ius cogens

13. State Immunity and IHRL
Kalogeropoulou v. Greece and Germany (2002) (ECHR)
Applicant: State immunity conflicts with Article 6 of the ECHR, in particular the right to access to court
The Court: In the light of laws of state immunity, observing international law in the interest of good relations between states and respecting the principle of sovereignty, the restriction to court is justified.
State Immunity and IHRL

14. Enforcement of judgments
Almost absolute immunity
Explicit consent is required
Enforcement of judgments

15. State Immunity for Heads of State
Acting heads of government and other high ranking officers are protected by customary rules of state immunity.
If an acting head of state is criminally held liable in the Court of another state, this is deterimental to the conduct of peaceful relations.
State Immunity for Heads of State

16. Two types of heads of state immunity
Immunity ratione persona: Covers ALL acts when in office.
Immunity ratione materia: Covers sovereign acts AT ALL times.
Two types of heads of state immunity

17. Chile enjoys immunity from civil proceedings
Pinochet does not enjoy former head of state immunity with regard to acts of torture under the Convention against Torture.
The Pinochet case(No 3) 2000

18. Acting heads of states and foreign ministers always enjoy immunity in courts of other states (immunity ratione persona)
They many not enjoy immunity from criminal trials before international courts (e.g. Bashir indictment by the ICC)
Congo v. Belgium (ICJ)

19. Next week The international law of diplomatic and consular relations
READ and BRING YOUR RELEVANT TREATIES TO CLASS
Next week