The Conflict And Coordination Between State Immunity And The Right Of Access To The Court

State immunity, also known as sovereign immunity, gives a privilege of sovereign states from being sued. The rule of state immunity derived from “No dominion among equal”and the principle of national independence and dignity, has been generally accepted as a rule of customary international law by members of the international community with hundreds of years of development. With the development of the international human rights movement, the international community calls for more restrictions subjected to national exemption. State immunity also began to change from absolute immunity theory to restrictive immunity theory. The doctrine of restrictive immunity has gradually been adopted by some governments and courts. But because of the current complicated international situation, in practice the vast majority of countries did not give up state immunity,and still quoted it in order to avoid the jurisdiction of the courts of other countries in numerous proceedings, even if the state cannot quote. Therefore, the state immunity is a long-term practiced rules of customary international law that every country should comply with.The right of access to the court is developed with the extension of the interpretation and application of the right of fair trial which is ruled under the article6(1) of the European convention on human right. The provision of the article 6(1) of the European convention on human rights is that, “In the determination of a person`s civil rights and obligations or of any criminal charge against him, the person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Similarly, the article 14(1) of the International Covenant on Civil and Political Rights prescribes, "All people are equal before the court and the referee. The determined for anyone to ask whatever criminal charges or his rights and obligations in a suit, everyone is entitled to by a lawfully established and qualified, independent and unbiased court for a fair and public trial." That is when a sovereign state commit a violation of individual rights in another nation, the individual can thus take a civil proceeding at the court of another nation to seek compensation and relief. But the problems comes as well. In the proceeding, if thesovereign state invoke immunity defense, how the court will choose. On one hand,the state enjoys immunity from jurisdiction in a foreign court according to the international law; on the other hand, individuals have the right to recourse to the court. Whether or not there is a conflict between state immunity and the right of access to the court? How to coordinate the relationship between the two? So far, the European court of human rights, the United Nation international court and national courts have handled many such cases, and make different judgments based on different circumstances. The fields of state practice and the international law will continue to evolve down. In this regard, the paper will analyze the conflict and coordination between state immunity and the right of access to the court according to the existing theories and case with a view to subsequent practice reference to China.In theoretical analysis and practice study(including treaty practice and referee practice) research method, firstly, the paper studies how to coordinate the conflict of state immunity and the right of access to the court in the case of the violation of jus cogens and in the case of the violation of the other international law. Because of the characteristic of jus cogens that other international law can not contradict with,in the case of the violation of jus cogens, the paper mainly talks about the legal provisions and the class between state immunity and jus cogens, and gives some theoretical basis about how to coordinate the conflict in the case of the violation of jus cogens in combination with existing theories. In the case of violation of other international law, the paper study the principles of legitimate purpose and proportionally to coordinate the conflict between state immunity and the right of access to the court. Then, study the cases of the international court and some domestic court, and analyze the process of dealing with the conflict and coordination on how to carry out and choose. Finally summarizing the theory and cases analysis result, try to find out the right way or path of coordinating the conflict between state immunity and the right of access to the court. Combined with the reality of China,give to China some suggestions which are suited to China, hoping that those suggestions can be used for reference for future practice.At present, there are not any relevant provisions on the conflict and coordination between state immunity and the right of access to the court in the international community. The doctrines have played a certain role on the reference ofthe problem, but the degree of the acceptance by the international community in not consistent. The judicial practice of the international judicial institutions and the domestic judicial institutions also differ. Through the theory and practice analysis,the author thinks as to the conflict and coordination between state immunity and the right of access to the court, we should strengthen the international laws and the domestic laws provisions of state immunity, clear the scope of the application and exception of state immunity; support the right of access to the court in the cases which conform to the principle of serious damage to individual rights and interests and the final relief, maintain the international legal order and value aiming at “global well-being”. China must change the position on state immunity, speed up the process of domestic legislation on state immunity, increase the judicial practice on the conflict and coordination between state immunity and the right of access to the court,in order to offer sufficient theoretical basis and practice experience.