Pavoni: The Myth of the Customary Nature of the United Nations Convention on State Immunity

Riccardo Pavoni (Univ. of Siena - Law) has posted The Myth of the Customary Nature of the United Nations Convention on State Immunity: Does the End Justify the Means? (in The European Convention on Human Rights and General International Law, Anne van Aaken & Iulia Motoc eds., forthcoming). Here's the abstract:

The modern jurisprudence of the European Court of Human Rights (ECtHR) involving questions of foreign State immunity is usually informed by the premise that such questions are governed by customary international law, ‘the codification of which is enshrined’ in the 2004 UN Convention on Jurisdictional Immunities of States and Their Property (UNCSI), a multilateral treaty which is not yet in force. This paper takes the view that the alleged customary nature of the UNCSI largely constitutes a myth. A primary illustration is offered by Article 11 on the employment exception to State immunity, which is at the heart of most ECtHR’s decisions relating to the UNCSI. The multiple reasons why the UNCSI, and that provision in particular, cannot be regarded as a reflection of customary law are outlined.

Yet the paper considers that in its UNCSI decisions the ECtHR may have favoured a consequentialist posture, according to which the ultimate end of safeguarding human rights impaired by measures taken by ECHR Parties pursuant to controversial immunity rules would justify every legal means, however questionable, espoused for that purpose. However, it is not to be taken for granted that the ECtHR’s calculus has been accurate in this area, ie, that the Court has carefully pondered the pros and cons of its UNCSI jurisprudence. The dilemma remains as to whether the end justifies the means.