Law of State Immunity under International Law​​

Manthan Sharma
Unitedworld School of Law, Karnavati University, India

Volume IV, Issue I, 2021

State immunity deals with a State, its governmental officers and agencies. It relates with the most fundamental issue as whether a state is immune from judicial processes of its own courts and courts of other nations. The concept is derived from the maxim “par in parem non habet imperium” i.e. equals do not have authority over one another. Moreover, the concept of state immunity is also dealt with respect to Hohfeld’s analysis that describes relations of immunity with disability.

Basically, there are two types of immunities – absolute and restrictive. The former refers to the privileges and exemptions, granted by one state through its judicial machinery to another, against whom it is sought to entertain proceeding, attachments of property or the execution of judgements. On the other hand, the later doctrine makes a distinction between acts performed in exercise of sovereign authority which remain immune and acts of a private or commercial nature in respect of which proceedings in national courts may be brought. The immunities granted can also be revoked as provided under the Vienna Convention. This waiver can be classified as Implied and expressed waiver.

The current trend is additionally inclined towards the restricted approach where countries have curtailed the likelihood of immunity for a remote State in their jurisdiction either by way of legislation or court decisions; there is justification that it is now well structured. This provides a new impetus for clearly determining state responsibility and international liability because the principle of state immunity has become well defined due to the restrictive approach.