State Immunity and Human Rights: Heads and Walls, Hearts and Minds

It is not unusual for natural persons alleging ill-treatment abroad at the hands of a foreign state in violation of some rule of international law pertaining to the humane treatment of individuals to attempt to sue that state for damages in the courts of another state. In nearly all such actions brought against the allegedly responsible foreign state as such or against its government or some organ thereof or against its serving or former officials for acts performed in their official capacity, the claim has been defeated by the defendant’s procedural plea of state immunity, an immunity from the jurisdiction of its courts which the forum state is generally obliged as a matter of international law to accord foreign states in respect of acts of an inherently sovereign nature. Nor, the article argues, is there much chance that many domestic courts or any international court will eventually side-step state immunity as it pertains to civil actions alleging internationally wrongful ill-treatment inflicted abroad or that many national governments will legislate or conclude a treaty to similar effect. The article submits that in principle this need not be seen as a bad thing. The rightful objects of opprobrium in such cases, and consequently those against which public campaigns for redress stand to have greater rhetorical purchase, are the foreign state that denies local or international remedies and the government of the state of nationality which makes no genuine effort to intercede with the allegedly responsible state on behalf of the victim.