Abuse of state immunity

Misuse of government immunity
Official abuse of crown jurisdictional immunity
Abuse of sovereignty

Nature

There are two different legal approaches to the state immunity: restrictive, which grants immunity only to the public acts of states, and absolutist rule, which says that immunity must also be afforded to their private acts, such as trading contracts and ownership of property.

Background

The abuse of state immunity emerged as a significant global concern in the late 20th century, as cases mounted where governments invoked immunity to evade accountability for human rights violations, commercial disputes, and environmental harm. International debates intensified following landmark cases in national and international courts, revealing the tension between sovereign rights and justice for individuals. This prompted growing scrutiny and calls for reform, particularly as transnational interactions and cross-border litigation increased.

Incidence

In 1991, the UK High Court ruled that the government can breach its own undertakings to the courts without fear of legal sanction because ministers and officials have Crown immunity against contempt proceedings. The ruling was in respect of the deportation of an asylum-seeker for whom an legal undertaking not to forcibly repatriate had previously been made. The judge said that if the Crown were not immune, and Crown undertakings constituted no more than "unenforceable assurances", the Home Office would have been guilty of contempt.

Claim

The State is the best guarantor of human rights, and their surest champion. Through the actions of States, the concept of human rights has acquired real meaning. But, when States prove unworthy of their sovereign responsibilities, when they violate the fundamental principles laid down in international treaties, when they become tormentors rather than protectors of individuals, then the shield of sovereignty should be removed from such authoritarian regimes that use sovereignty as a sword through which to attack individuals.

Counter-claim

Concerns about the abuse of state immunity are vastly overstated and do not constitute a significant problem. State immunity is a well-established principle that ensures the smooth functioning of international relations. Allegations of its abuse are rare and often exaggerated for political gain. The existing legal frameworks provide sufficient checks and balances, making further scrutiny unnecessary. Focusing on this issue distracts from far more pressing global challenges that genuinely demand our attention.