Divergent Views on State Immunity in the International Community

Abstract

Despite the general trend toward the restrictive doctrine, states are still divided on the definition of the exact scope of, and the extent of exceptions to, state immunity. This reflects the different understandings by different states of the nature, foundations and functions of state immunity. The restrictive doctrine of immunity is yet to be established as a rule of customary international law, as the degree of restrictiveness and the boundary of the core concept of commerciality remain unclear, whilst the method to delimit the scope of exceptions to immunity is yet to be universally established. Further discussions and deliberations are required to address new issues in state immunity, such as anti-terrorism and tort liability, which may not neatly fit in the traditional dichotomy of an absolute vis-à-vis a restrictive doctrine of State immunity.

Keywords: State Immunity, Restrictive Doctrine, Absolute Doctrine, Customary International Law, Certainty, Flexibility