Minimalist Interpretation of the Jurisdictional Immunities Convention

I. Introduction The UN Convention on Jurisdictional Immunities of States and Their Property ("Jurisdictional Immunities Convention")1 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,2 for example, it cannot invoke immunity from certain lawsuits arising out of those transactions.3 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.4 Nevertheless, "the principle of State immunity has been firmly established as a norm of customary international law."5 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.6 This Comment embraces the separate protocol by advocating a minimalist approach to interpreting the convention. Section II begins by providing background on the international law of state immunity for commercial transactions. It then analyzes the convention's approach to commercial transactions and argues that the commercial-transaction provisions are best interpreted as a general agreement on nonabsolute or restrictive immunity rather than as instructive specifications for ratifying states. Section III supports the new human rights protocol's pragmatism. It begins by providing background on the international law of state immunity for human rights violations. Next it shows that the convention's trend away from statism and absolute immunity supports cosmopolitan goals inline with the international law of human rights. Finally it argues that progress toward restrictive immunity beneficial to the human rights movement should not be delayed by other concerns more profitably pursued elsewhere. The Comment ultimately implores Amnesty International to support the Jurisdictional Immunities Convention, because the convention, like the US Constitution, "though it may not be perfect in every part, is, upon the whole, a good one."7 II. JURISDICTIONAL IMMUNITIES CONVENTION A. STATE PRACTICE REGARDING COMMERCIAL-TRANSACTION IMMUNITY Historically states were granted absolute immunity from the judicial processes of other states.8 Chief Justice Marshall attributed this absolute immunity to the "perfect equality and absolute independence of sovereigns" and the "common interest impelling them to mutual intercourse, and an interchange of good offices with each other."9 Today these maxims are not forgotten, as states may confer immunity "to prevent embarrassment to the conduct of foreign relations" or out of deference to a "state's legitimate right to manage its affairs."10 But unlike in Chief Justice Marshall's era of absolute immunity, today states increasingly practice restrictive immunity, whereby exceptions are made regularly for a state's commercial transactions gone bad and occasionally for human rights violations.11 The major exception to immunity has long been for state behaviors that qualify as commercial transactions. Whereas all states continue to grant immunity to foreign governments for their public, noncommercial acts in exercise of sovereign or governmental authority, states increasingly deny immunity for foreign states' acts that are private and commercial. …