Article by Adrika Bisen,
Many have filed petitions in various national courts, seeking sanctions on and damages from China for the spread of COVID-19. One such petition was filed in the US District Court of Missouri, claiming that China withheld crucial information regarding the spread of COVID-19 which in turn resulted in the loss of lives and irreparable damage worldwide.
Adjudication of claims attributing fault to foreign nations pose the crucial question: are national courts empowered to hear petitions against another state? Before answering this, we must ascertain the extent to which a nation-state like China, for example, is protected by the doctrine of sovereign immunity. The world’s evolving approach to sovereign immunity renders unclear whether sovereign immunity is absolute or whether it ought to be narrower.
The Evolution of the Notion of Sovereign Immunity and its Contemporary Form
Sovereign immunity corresponds to a state’s territorial integrity or political independence. During interstate relations in the 18th century, the doctrine of sovereign immunity was dismissed as a legal concept having a limited scope. However, legal scholars continued to identify sovereignty as an inherently limited concept. They regarded sovereignty to be a relative principle rather than an absolute one. This account of sovereign immunity is best understood in the context of the 18th and 19th centuries. Then, the limited practical interaction between states occurred predominantly through military cooperation or diplomatic relations. Because matters inevitably touched upon sensitive foreign policy, the states were immune from foreign jurisdiction. The states then preferred to resolve such sensitive matters through diplomacy rather than through adjudication. Today’s geopolitical and international law landscapes are only minutely, if at all, reminiscent of those of the 18th and 19th centuries. The extension of an antiquated principle of absolute sovereign immunity is unwarranted, especially where foreign relations today extend far beyond those of the past.
A shift away from the nation-state and towards the individual also transformed the concept of sovereign immunity. Dissenting in McElhinney v. Ireland, Judge Loucaides explained that the law of sovereign immunity:
“Originated at a time when individual rights were essentially non-existent
and when States needed greater protection from possible harassment through
abusive judicial proceedings. The doctrine of State immunity has in modern
times been subjected to an increasing number of restrictions, the trend being
to reduce its application in view of developments in the field of human rights
which strengthen the position of the individual.”
In the 18th century, the international community introduced a new political framework called the balance of power. This principle holds that the right of sovereign immunity enjoyed by each state cannot be used to damage the same rights of other states. This limitation was based on the famous natural law principle of “neminem laedere” (general duty of care). Lord Denning’s 1957 speech in Rahimtoola v. H.E.H. The Nizam of Hyderabad reinforced the need for definite limits on a state’s sovereign immunity, claiming that “sovereign immunity should not depend on whether a foreign government is impleaded, directly or indirectly, but rather on the nature of the dispute.” Because sovereign immunity was intended to be a functional concept rather than an absolute one, to call it an unrestricted and absolute concept no longer true, even politically.
The Evolution of Normative Hierarchy: Shielding Violations of Human Rights Norms Under the Guise of Sovereign Immunity
Sovereign immunity doctrine has been the major factor responsible for the most lamentable state of implementation of human rights norms. The most infamous instance is the case of Jurisdictional Immunities of the State (Germany v. Italy), where the International Court of Justice (ICJ) found that Italy encroached upon international law by denying Germany sovereign immunity from domestic jurisdiction. Germany was accused of infringing humanitarian law and basic human rights.
The theory of normative hierarchy evolved over the years to deal with the doctrine’s intrinsic inconsistency. Under this theory, the state’s jurisdictional immunity is not protected when the state violates protected human rights norms that are considered peremptory international law norms, known as jus cogens. Examples of jus cogens include the basic rules of international humanitarian law, the prohibition of torture and genocide, the right to self- determination, and the prohibition of aggression. The theory assumes that, in cases of human rights violations, international law confers immunity upon a state. Indeed, the theory proposes a hierarchy of international legal standards, aiming to reconcile jus cogens and state sovereignty in favor of the former.
According to this theory, the principle of sovereign immunity is not considered jus cogens, and thus ranks lower in hierarchy than all jus cogens. The International Law Commission (ILC) provided an illustrative list, wherein it considered the prohibition of crime against humanity as jus cogens. Normative hierarchy theory posits that the preservation of jus cogens norms preempts other principles of international law in order to rectify human rights violations.
In his book Enhancing Global Human Rights, R. Falk mentions that the principle of non-intervention does not apply in situations of violation of human rights norms is well-established rule of law. For example, in Nada v. SSEAs, the Swiss Federal Court recognized fundamental human rights as jus cogens norms. Similarly, Article 6 of the International Covenant on Civil and Political Rights (ICCPR) and Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) directs that all states should recognize the non-derogable right of everyone to enjoy the highest standard of health and should take all the possible preventive measures to control and prevent an epidemic, endemic, or pandemic.
Sovereign immunity is not a defense to bar the international community’s ability to take legal action against the infringement of human rights. An illustrative case is the prosecution of the Soviet Union within the Conference on Security and Cooperation in Europe. There, the Soviet Union quit claiming exclusive jurisdiction and engaged in a meaningful conversation about the issues at hand in the Belgrade conference.
The Role of Sovereign Immunity Today
The idea of sovereign immunity is not static. In more recent years, there has been a development away from states having absolute immunity and towards adopting the doctrine of limited sovereign immunity. In the Corfu Case (1949), the ICJ held that no state would knowingly allow its territory to be used for acts injuring the rights of other nation-states.
Applying the Corfu principle of international law to the current situation, the World Health Organization’s (WHO) International Health Regulations are binding during the international spread of a disease. The regulations obligate a country in which an outbreak takes place to make timely notification and share accurate information. The State Party shall continue to communicate to the WHO timely, accurate, and sufficiently detailed public health information available to it on the notified event, China was bound by international obligations to report accurately to the (WHO) about the situation, but failed to do so. The ICJ’s “sufficiently direct and certain causal nexus” test as set forth in the Bosnian Genocide Case should be applied to determine if there is a causal link in the damage suffered by the individuals and injured states and the violation of international law norms by China. Under that test, injured states must establish that the pandemic could have been averted had China complied with the International law and human rights norms and taken preventive measures.
China’s inaction in the wake of an impending global pandemic clearly demonstrates China’s negligence and even disregard of jus cogens norms. In the Corfu Case, a mere failure to discharge a positive duty was considered enough to assess damages against the offender state and considered a form of negligence. Similarly, China declined offers from the WHO to assist them in investigating the coronavirus outbreak. Such inaction and negligence on behalf of nation-states disregards the non-derogable nature of jus cogens norms like ‘the prohibition of crime against humanity’.
The principle of sovereign immunity protects states to the extent that their actions collectively benefit member nations and individuals. The moment a state pursues actions detrimental to other states or stands in clear violation of fundamental human rights norms, sovereign immunity ends. This holds true even if such an action is protected by domestic immunity laws or is inconsistent with international law norms. COVID-19’s threat to Humankind urgently demands a restrictive approach to sovereign immunity.
Author
Adrika Bisen is a law student at Gujarat National Law University, Gandhinagar with a keen interest in International Law and Policy.