Вісник Харківського національного університету внутрішніх справ (Jul 2023)
Jurisdictional immunity of the state: evolution of the doctrine
Abstract
One of the key problems in the judicial consideration of compensation claims for damage caused to the health, life or property of Ukrainian citizens as a result of the armed aggression of the Russian Federation is overcoming the jurisdictional immunities of a foreign state. The existence of significant gaps in Ukrainian legislation regarding the regulation of restrictions on the jurisdictional immunity of a foreign State when a court considers private law disputes involving such a State gives rise to an urgent need to study the main provisions of the doctrine of jurisdictional immunity of a State with due regard for current trends in the development of private international law. The purpose of the article is to demonstrate the achievements in legal science in the development of the doctrine of jurisdictional immunity of a foreign state in private law disputes and to identify further trends in its development with a view to taking it into account when drafting future national legislation. The main stages and trends in the development of the doctrine of jurisdictional immunity of a foreign state in private international law have been studied. The evolution of international and national legislation, as well as the case law of national and international courts on the application of foreign state immunity in court proceedings has been considered. The tendencies in the development of the doctrine of jurisdictional immunity of the State in private law disputes involving foreign persons have been identified. It has been concluded that the doctrine of jurisdictional immunity of the State in private international law has undergone significant development and changes over the past two centuries. At the present stage, the doctrine of jurisdictional immunity of a foreign state is on the threshold of a new period of development of the doctrine i.e. a period of further limitation of state immunity in favour of human rights, ensuring the necessary balance between state immunity and the right of an individual to access to court and a fair trial. At the international level, an approach is emerging whereby a state’s jurisdictional immunity should be interpreted in accordance with and in the light of jus cogens rules, in particular in cases of compensation for damage to life, health or property caused by armed aggression by a foreign state.
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