State Immunity and Judicial Countermeasures

Abstract

This article explores whether domestic courts can deny jurisdictional immunity of a state as a countermeasure. The article offers a survey of state practice that, according to some scholars, would support this argument, demonstrating that the corresponding practice is scarce, and that relevant domestic legislation denying jurisdictional immunity is not adopted as a countermeasure. Typically, countermeasures are adopted by political organs, which are responsible for the state’s international relations and which can assess what is a lawful response to a violation of international law. Domestic courts are not entitled to adopt countermeasures without the involvement of the executive organs that are competent for the international relations of the state. This article demonstrates that a domestic court’s denial of sovereign immunity as a countermeasure is unlawful without a prior determination of the government, and it is highly impractical when that determination is provided.