Authority and Dialogue: State and Official Immunity in Domestic and International Courts

CONCEPTS OF INTERNATIONAL LAW IN EUROPE AND THE UNITED STATES (Chiara Giorgetti & Guglielmo Verdirame, eds., Cambridge Univ. Press, Forthcoming)

23 Pages Posted: 19 Jul 2016 Last revised: 2 Sep 2016

See all articles by Chimène Keitner

Chimène Keitner

University of California Hastings College of the Law

Date Written: July 14, 2016

Abstract

This chapter considers aspects of the ongoing conversation about norms of state and official immunity among domestic and international courts. Because immunity norms transect the international and domestic legal spheres, adjudicating immunity claims creates opportunities for dialogue between international and domestic courts about the content of immunity norms, and about which institutions (both domestic and international) have the authority to articulate and apply them.

Part I begins by discussing two challenges brought before international tribunals to the application of foreign state immunity by domestic courts: a challenge brought before the European Court of Human Rights (ECtHR) to the United Kingdom’s determination that Saudi Arabia was entitled to jurisdictional immunity from civil claims for torture (Jones v. United Kingdom), and a challenge brought before the International Court of Justice (ICJ) to Italy’s determination that Germany was not entitled to jurisdictional immunity from civil claims for war crimes (Germany v. Italy). Both of these cases pitted the right of access to a judicial remedy against the norm of state immunity.

Part II examines two domestic cases that followed these international decisions. It discusses the Canadian Supreme Court’s decision in Estate of Kazemi v. Iran, which illustrates normative coalescence around a conception of immunity based on a domestic statute and reinforced by international jurisprudence. It then explores the Italian Constitutional Court’s Judgment 238/2014, which illustrates that international decisions can also provoke “legal protectionism” — the attempt to shield domestic norms and institutions from foreign or international “imports.”

Part III concludes by exploring how arguments based on the supremacy of domestic constitutional law have been used in other cases to justify non-compliance with the decisions of international bodies, even when the constitution explicitly incorporates international law into the domestic legal system. At a minimum, by conceptualizing various legal and political institutions as active interlocutors engaged in a collective process of norm articulation, we can perhaps worry somewhat less about who gets the “final word,” and focus instead on the doctrinal and normative implications of this ongoing conversation for the dignity and well-being of affected groups and individuals.

Keywords: state immunity, Germany v. Italy, ICJ, ECHR, Kazemi v. Iran, Italian Constitutional Court, Medellin, Kadi, Anchugov and Gladkov v. Russia, constitutional supremacy

Suggested Citation

Keitner, Chimène, Authority and Dialogue: State and Official Immunity in Domestic and International Courts (July 14, 2016). CONCEPTS OF INTERNATIONAL LAW IN EUROPE AND THE UNITED STATES (Chiara Giorgetti & Guglielmo Verdirame, eds., Cambridge Univ. Press, Forthcoming). Available at SSRN: https://ssrn.com/abstract=2809829

Chimène Keitner (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

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