Procedural Aspects of Overcoming Sovereign Immunity: Relevance for Ukraine and the International Legal Order (SDG'S)
Authors: Kovalova Tetiana , Kuderska Iryna , Ktitorov Maksym , Komissarov Mykola , Maltsev Vitaliy 
Published: July 2024

Objective: The object of this research article is the procedural domestic and international aspects of overcoming the sovereign immunity of a State that has committed military aggression, violating international humanitarian law and human rights law, with a focus on compensation for the damage caused by such actions.

Method: The method of study involves a critical analysis of the approaches taken by the Supreme Court of Ukraine to overcome jurisdictional immunity, in light of international law norms. The authors employs a combination of legal analysis, case law examination, and comparative analysis of international practices to evaluate the compliance of the court's decisions with conventional provisions on compensation for damages.

Results: This research article analyses the procedural domestic and international aspects of overcoming the sovereign immunity of a State whose military aggression has violated international humanitarian law and human rights law, and on this basis raises the issue of compensation for the damage caused by such actions. Special attention is paid to the approaches to overcoming jurisdictional immunity by the Supreme Court of Ukraine. Taking into account the norms of international law, the author critically analyses the court's compliance with the conventional provisions establishing the procedure for consideration of cases on compensation for damages. The aggressor State's disregard for the norms and principles of international law, sovereignty of other States, and international good faith does not give rise to a disregard for the norms of international law based on the principle of reciprocity. The author emphasises that compliance with the rules on court proceedings must comply with the conventional requirements, and this should be the basis for national case law on school compensation. The authors analyses legal immunities and jurisdictional immunity of the State in particular in the context of ensuring justice, which, according to international standards, is the basis for fair treatment of victims of armed aggression and ensuring access to justice.

Contribution: It is noted that the application of the rules of jurisdictional immunity is the basis for limiting the right to a trial, which should be proportionate. The authors identifies the prospects for the development of international practice of interpreting the areas of ensuring the right to a fair trial, in particular, based on the practice of international courts. The author summarises the directions of changing approaches to the validity of the application of absolute immunity, and the dynamic interpretation of the legitimate purpose of limiting the right to a court, which is necessary and permissible provided that the essence of this right is preserved. The author emphasises the importance of the effectiveness of reparations as a principle and its significance for the development and provision of transitional justice in Ukraine.