Briefing Paper

Project: International Law Programme

Joanne Foakes
State immunity
  • Nearly nine years have elapsed since the adoption of the 2004 UN Convention on
    State Immunity. This paper considers whether the convention has increased legal
    certainty in this area or whether practice is as unpredictable and divergent as ever.
  • So far the convention has had little impact on countries which traditionally
    accord absolute immunity to other states in their courts. It is therefore too early
    to say whether it can succeed in its objective of enhancing legal certainty and
    harmonizing practice.
  • There is evidence, however, that many national and international courts such as
    the European Court of Human Rights are looking to the convention as a reflection
    of customary international law. In these circumstances there is some force in the
    argument that states that want to influence the way in which courts interpret the
    convention should become parties to it.
  • Uncertainties about the scope of the convention remain, although to some extent
    these have diminished in recent years. A concern remains that it could ‘freeze’
    international law so as to stop the development of an exception for serious human
    rights violations.
  • For the United Kingdom and other Western states with existing legislation on
    state immunity, the benefits and potential disadvantages of becoming party to the
    convention remain finely balanced.

Launch event

State Immunity: The UN Convention and Current Practice
11 December 2013