Chicago Journal of International Law


The UN Convention on Jurisdictional Immunities of States and Their Property ("Jurisdictional Immunities Convention") is the first worldwide agreement to formalize a consistent approach to jurisdictional immunity. Basically it presents a list of situations in which a person or commercial entity may sue a foreign government. Under the convention, when a foreign government engages in commercial transactions, for example, it cannot invoke immunity from certain lawsuits arising out of those transactions. But a foreign government can invoke immunity when it gravely violates human rights. This is because the Jurisdictional Immunities Convention lacks an immunity-waiver provision-similar to the one it contains for commercial transactions-for genocide, crimes against humanity, war crimes, torture, extrajudicial executions, and enforced disappearances. Amnesty International finds this omission so upsetting that apparently it has blocked the convention by persuading states not to ratify it. Nevertheless, "the principle of State immunity has been firmly established as a norm of customary international law." Blocking the convention's ratification thus succeeds only in blocking the benefits to be achieved from transforming customary international law into treaty law: formal agreement, collaboration, and progressive development away from statism and absolute immunity. To surpass this hurdle, the International Law Commission ("ILC") is considering drafting a separate protocol concerning the issue of human rights immunity that would enable the convention to be adopted as written. [CONT]

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