Принцип суверенного равенства государств как основа государственного иммунитета

A state is the main subject of international law that has civil legal personality along with international legal personality. It is characterized by features such as sovereignty, territory, people and power. The state can participate in various categories of relations. Firstly, it can cooperate with other states or international organizations. This includes, for example, political and business alliances between States, the conclusion of international treaties to enhance cooperation in specific areas, being in debt relations. Secondly, the state may enter in various property relations with foreign legal entities and individuals (for example, the purchase of land to expand the territory of the Embassy, the concession of subsoil for exploitation of mineral resources on its territory, rent of owned buildings and structures located in your own country, and in the territory of a foreign state, the acquisition and alienation of property belonging to him, ordering of works, goods and services, etc.). In such private international legal relations, questions and problems arise concerning state immunity.

State immunity is the right of that state to be independent from the jurisdiction of other States, in particular from judicial, administrative and other authorities. Since this is a principle of international law, it is obligatory for all subjects of international law. State immunity begins with one of the main principles of international law – the principle of sovereign equality of states, with the concept of "Par in parem non habet imperium" , which means “ equals have no sovereignty over each other". State immunity is very closely linked to state sovereignty. Oppenheim in the course of international law concludes that, "immunity originates from the principle of equality of states," meaning that state cannot claim to exercise its jurisdiction over others. [1]The significance of sovereignty by international law as one of the principles of international law begins with the signing of the Westphalian Convention (1648) by a number of states within their territory. The Treaty of Westphalia enshrines the principle of supremacy, independence of States on their territory, and non-interference in the internal affairs of the state. Despite the fact that the concept of state sovereignty is not currently enshrined at the international level, the UN Charter contains the principle of sovereign equality of states as one of the fundamental principles of international law. The principle of state sovereignty was clearly enshrined in the UN Charter (1945) and the Declaration "on the principles of international law" (1970). In the Declaration on the principles of international law (1970), the elements constituting the concept of " sovereign equality" are:

1. legally all states are equal;

2. each state has the right to full sovereignty;

3. each state must respect the legal personality of other states;

4. inviolability of territorial integrity and political independence of states;

5. each state has the right to freely choose and develop its political, social, economic and cultural system;

6. each state has the obligation to fulfill its international obligations in good faith fully and to live in peace with other states.[2]

An important issue in the doctrine of international law is the understanding of the scope of state sovereignty. In accordance with the features of the opinion of scientists in the doctrine formed two main concepts:

1. sovereignty — a certain absolute description inherent to the state and not subject to restrictions;

2. sovereignty of the state is limited in the international legal sense . According to scientists who formulate sovereignty as absolute, sovereignty is a concept that cannot be divided, that is, it is either completely present or completely absent. [3]However, other countries that hold another view consider that the state immunity should be limited during the development of the world community. In their view, concepts of sovereignty and immunity should be explained and implemented in accordance with the norms of jus cogens, obligations erga omnes and human rights. There are many cases where there is a contradiction between state immunity and jus cogens norms, one of which is the case between al-Adsani and the United Kingdom. With the participation of the Emir of Kuwait, al-Adsani, who became the object of a bloody revenge, was tortured by the Kuwaiti authorities. He was illegally deprived in prison, strictly tortured and even was burnt in the palace brother of Emir of Kuwait. For burns of 25% of the body, he is treated first at the Kuwait hospital, and then at the United Kingdom hospital. This leads to disruption of al-Adsani's nervous system. In August 1992, al-Adsani filed a civil lawsuit in England against the Kuwaiti authorities. In 1995, the court of England dismissed al-Adsani's lawsuit, stating that under the state immunity act of 1978, immunity is given to a foreign state in cases where it is not under jurisdiction of an English court. Al-Adsani, who also lost on appeal, files a lawsuit to the European court of human rights, claiming that he was denied of access to the court in accordance with article 6 (1) of the European Convention on human rights. According to the judges, 9 judges believe that al-Adsani's right has not been violated, while 8 judges concluded that his rights have been violated. As a result, the European court of human rights decides that al-Adsani's rights have not been violated.[4]The al-Adsani case is an important decision that should be evaluated in the course of this study, as the judges have expressed different views on the rules of jus cogens and its relationship to the decision on immunities.

As for domestic legislation, the Republic of Kazakhstan adheres to the theory of functional immunity. Sovereignty, which is the basis of the country's state immunity, was proclaimed on October 25, 1990 by the adoption of the Declaration "On State sovereignty of the Kazakh SSR". The adoption of the Declaration was a new step in the life of the people of Kazakhstan, and the priority task of the state was to create decent and equal living conditions for all citizens of the Republic. However, as a sovereign state, Kazakhstan could not carry out such things like acting as an independent subject of international relations, determine foreign policy in its interests, exchange of diplomatic and consular missions, participate in the activities of international organizations, in short, it could not serve as a sovereign state. Therefore, in accordance with the program, the Constitutional law "on State independence of the Republic of Kazakhstan" was adopted on December 16, 1991. Despite the need to adopt this Constitutional act, the process of its discussion and adoption has become very complex. If at the time of the adoption of the Declaration the Republic was still convinced of the possibility of concluding an agreement in the Union, at the time of the adoption of the constitutional law the Republic could find the way to real independence. When this law was adopted, Kazakhstan got a chance to full independence in it its foreign policy. For instance, if when the Declaration “On State sovereignty of the Kazakh SSR” came into force, we were among the states in the Union, but when we adopted Constitutional law "on State independence of the Republic of Kazakhstan", we could make other states recognize us as an Independent state without any scope of restriction. The constitutional law “On State independence of the Republic of Kazakhstan” developed and supplemented and clarified the Declaration “on State sovereignty of the Kazakh SSR” in accordance with the conditions that developed after its adoption. In connection with the active participation of the Republic of Kazakhstan in private legal activities, questions concerning immunity arose, for example, claims are filed to the Government and the National Bank as state bodies of the Republic of Kazakhstan. [5]In the Civil procedure code of the Kazakh SSR, Kazakhstan adhered to absolute immunity. However, in 1999, after the introduction of the new Code of Civil procedure, the Republic of Kazakhstan introduced the theory of functional immunity into legislation. The norms of the Civil procedural code establish similar grounds for waiving the immunity of a foreign state, which are applied in world practice.

The principle of sovereign equality of States is based on international cooperation. This principle is the beginning of a state's membership in international organizations, the conclusion or non-conclusion of international treaties, and the creation of an Alliance with other States. The principle of the sovereign equality of States requires that relations between States be formed only on the basis of voluntariness. The Declaration by States in the UN Charter of the principle of sovereign equality as one of the basic principles of international law confirms its close connection with other basic principles of international law set out in article 2 of the UN Charter. Violation of one of the rules leads to violation of the other. However, as the international law is developing, there are different cases concerning the principle of state sovereignty. We have to understand that there mustn’t be any contradiction between principles and rules of international law. To sum up, International organizations and courts must make right decisions by balancing jus cogens norms and principles. The recognition by a state of the immunity of another state within its jurisdiction does not mean that it has waived its immunity.

1. Oppenheim L. International law. Vol. 1, Foreign literature publishing house, 1948, pp. 248-445

2. Declaration on principles of international law (1970) // Electronic resource// https://www.un.org/ru/documents/decl_conv/declarations/intlaw_principles.shtml

3. Зиновьев, А. В. Суверенитет, демократия, государство // Правоведение. 2006. № 6. С. 20 — 28.

5.Сулейменов М.К. Иммунитет государства: абсолютный или ограниченный? // Юрист.№3. 2010.С. 12-19.