Study On The Conflicts Between The Doctrine Of State Immunity And The Protection Of Human Rights

With the developments of international human rights movement and internationalhuman rights law, more and more cases of international violations of human rights arebrought by the victims of such violations to domestic courts outside the defendant Statesfor judicial remedies against the defendant State. Such domestic courts have to firstlyresolve the legal issue of the State immunity entitled to the defendant State.Broadly defined, the doctrine of State immunity includes immunity fromjurisdiction, immunity from execution, and diplomatic immunity granted to the Staterepresentatives deriving from State immunity. This paper is going to conduct researchconcerning State immunity doctrine in the narrow sense, which refers to thejurisdictional immunity enjoyed by the defendant State in the domestic court alleged tobe responsible for violating international human rights law. Under temporalinternational law, violation of fundamental human rights is not within the exceptions toState immunity, nor could it be covered by the already recognized exceptions, such as“commercial acts” exception and the “territorial torts” exception. Accordingly, thedefendant State responding to fundamental human rights cases is entitled to invoke Stateimmunity. Two types of international obligations faced by the domestic courts have tobe involved in resolving this question: the obligation of respecting the State immunityof a foreign state and the obligation of respecting and protecting of human rights underinternational human rights law.The victims’ access to judicial remedies would be barred should the domesticcourts refused to exercise jurisdiction for the sake of the defendant State’s right tojurisdictional immunity under international law. Some human rights scholars attributethis “injustice” to the “bar” function of State immunity, and advocate that thedomestic courts are entitled to exercise jurisdiction over the defendant States, so tofulfill the obligation of protecting human rights. Nevertheless, the exercise ofjurisdiction by the domestic courts could constitute an international wrongful act, forexample, the decision made by the International Court of Justice in the case concerningState Immunity from Jurisdiction held that Italy is responsible for the exercise ofjurisdiction over a case where Germany is sued by the Second World War victims.Whether the State immunity doctrine is a bar to the international human rightsprotection? Whether the domestic courts could refuse the State immunity of a foreign State? To explore the answer to such questions, this paper will research the rule systemsof State immunity and human rights protection, as well as the balance between thetraditional value of sovereignty and the rising value of human rights.Orienting the cases related to the issue, this paper covers the aspect of conflictbetween State immunity and human rights protection, the factors resulting in suchconflicts and the way to coordinate. In furtherance, this paper analyzes and concludesthat the conflict results from the factors such as the feature of international law in theaspect of formality and structure, the complex function of State immunity, the diversityof standards in international human rights protection and the immaturity of theimplementation mechanism of international human rights law. In resolving the conflicts,one side holds that the human rights own the priority in the aspect of substantial value,while the other side advocates that the State immunity occupies the procedural priorityand is not a “bar” to human rights protection. To conclude in connection with thecharacteristics and development of international law, the international rule of humanrights exception to the State immunity doctrine has not been formed, and the sovereignStates should tolerant the diversity and gaps of human rights protection among differentStates with the goal of global common good.