Introduction

The doctrine of state immunity, rooted in the principle of sovereign equality among nations, traditionally shields states from being sued in foreign courts without their consent. However, this principle increasingly clashes with the imperative to hold states accountable for human rights violations, particularly those constituting grave breaches of international norms. In international law, exceptions to state immunity have emerged, especially for violations of jus cogens—peremptory norms from which no derogation is permitted, such as prohibitions against torture, genocide, and slavery. This tension is vividly illustrated in the Philippine context, where historical events like martial law under Ferdinand Marcos, Japanese wartime atrocities, and ongoing issues in the Bangsamoro region have tested the boundaries of immunity against the pursuit of justice for human rights abuses.

This article explores the evolution of state immunity, its intersections with human rights law, recognized exceptions under international frameworks, and their application within the Philippines. It draws on customary international law, treaty obligations, and domestic jurisprudence to provide a comprehensive analysis, highlighting how the Philippines navigates these principles as a state committed to both sovereignty and human rights.

The Doctrine of State Immunity in International Law

State immunity, also known as sovereign immunity, originates from the Latin maxim par in parem non habet imperium ("an equal has no power over an equal"). It encompasses two main forms: jurisdictional immunity (protection from suit) and immunity from execution (protection of state property from enforcement). Customary international law, as codified in instruments like the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property (UNCSI), upholds that states are immune from the jurisdiction of foreign courts for acts performed in their sovereign capacity (acta jure imperii), as opposed to commercial activities (acta jure gestionis).

The rationale for state immunity includes maintaining international comity, preventing interference in foreign affairs, and ensuring states can function without the constant threat of litigation. However, this doctrine is not absolute. The restrictive theory of immunity, widely adopted since the mid-20th century, distinguishes between sovereign and commercial acts, allowing suits for the latter. Key international instruments reinforcing this include:

The European Convention on State Immunity (1972), which limits immunity to non-commercial acts.
National legislation, such as the U.S. Foreign Sovereign Immunities Act (1976) and the U.K. State Immunity Act (1978), which provide exceptions for torts, expropriation, and other specific claims.

In the realm of human rights, state immunity has historically posed a barrier to victims seeking redress, as acts like arbitrary detention or extrajudicial killings are often classified as sovereign.

Human Rights Violations and Jus Cogens Norms

Human rights law, primarily enshrined in the Universal Declaration of Human Rights (1948) and core treaties like the International Covenant on Civil and Political Rights (ICCPR, 1966) and the Convention Against Torture (CAT, 1984), imposes obligations on states to respect, protect, and fulfill rights. Violations range from individual acts (e.g., torture) to systematic policies (e.g., apartheid or genocide).

Certain violations infringe jus cogens norms, which are fundamental principles overriding conflicting treaties or customs. The Vienna Convention on the Law of Treaties (1969, Article 53) defines jus cogens as norms accepted by the international community as a whole. Recognized jus cogens include prohibitions against aggression, genocide, crimes against humanity, war crimes, torture, and slavery. The International Court of Justice (ICJ) has affirmed these in cases like Barcelona Traction (1970) and Armed Activities on the Territory of the Congo (2005).

When state immunity conflicts with accountability for such violations, the question arises: does immunity yield to the erga omnes obligations (duties owed to the international community) inherent in human rights protection? Erga omnes norms, as articulated in Barcelona Traction, allow any state to invoke responsibility for breaches, potentially piercing immunity veils.

Exceptions to State Immunity for Human Rights Violations

International law has gradually recognized exceptions to state immunity in cases of serious human rights violations, driven by post-World War II developments like the Nuremberg Trials, which rejected immunity for international crimes. Key exceptions include:

Waiver of Immunity: States may explicitly or implicitly consent to jurisdiction, as in treaty provisions or by participating in proceedings.
Territorial Tort Exception: Under UNCSI Article 11, immunity does not apply to torts committed in the forum state causing death, injury, or property damage. This has been extended in some jurisdictions to human rights torts, though not universally.
Jus Cogens Exceptions: A growing body of jurisprudence argues that immunity cannot shield violations of peremptory norms. For instance:
- The European Court of Human Rights (ECtHR) in Al-Adsani v. United Kingdom (2001) upheld U.K. immunity for Kuwait in a torture case but noted the tension with CAT obligations.
- Conversely, Italian courts in Ferrini v. Germany (2004) denied immunity for Nazi war crimes, leading to the ICJ's Jurisdictional Immunities of the State (Germany v. Italy, 2012), which reaffirmed immunity for armed forces' acts during conflict, even for jus cogens violations. However, a dissenting opinion by Judge Cançado Trindade argued for prioritizing human rights.
- The International Criminal Court (ICC) Statute (1998, Article 27) rejects immunity for heads of state in individual criminal liability, though this applies to personal, not state, immunity.
Universal Jurisdiction: For crimes like piracy, genocide, and torture, states may exercise jurisdiction regardless of nationality or location, as per the CAT's requirement to prosecute or extradite torturers (Article 5). This indirectly challenges state immunity by allowing civil claims in tandem with criminal proceedings.
Customary Law Developments: Reports from the International Law Commission (ILC) on state responsibility (2001 Articles) emphasize that serious breaches of peremptory norms entail obligations to cease, provide assurances, and make reparation. While not directly abrogating immunity, this supports arguments for exceptions in national courts.

Regional frameworks, such as the Inter-American Court of Human Rights' rulings in cases like Velásquez Rodríguez v. Honduras (1988), prioritize victim rights over procedural barriers.

The Philippine Context: Balancing Sovereignty and Accountability

The Philippines integrates international law into its domestic order via Article II, Section 2 of the 1987 Constitution, which adopts "generally accepted principles of international law as part of the law of the land." This monist approach means customary norms, including state immunity and jus cogens, are directly applicable, subject to constitutional supremacy.

Domestic Legal Framework

State Immunity in Philippine Law: Governed by Article XVI, Section 3 of the Constitution, which states that the "State may not be sued without its consent." This extends to foreign states under customary law. The Supreme Court in Sanders v. Veridiano (1988) affirmed restrictive immunity, allowing suits for commercial acts but upholding it for sovereign ones.
Human Rights Protections: The Bill of Rights (Article III) mirrors international standards, prohibiting torture, arbitrary arrest, and extrajudicial killings. Republic Act No. 9851 (2009) criminalizes genocide, crimes against humanity, and war crimes, incorporating ICC definitions and allowing universal jurisdiction for certain offenses.
Incorporation of Treaties: As a party to the ICCPR, CAT, Genocide Convention (1948), and Rome Statute (though withdrawn in 2019), the Philippines is bound to prevent and punish violations. The Human Rights Victims Reparation and Recognition Act (RA 10368, 2013) provides compensation for martial law victims, reflecting a domestic exception to immunity for historical abuses.

Key Philippine Cases and Applications

Marcos Regime and Asset Recovery: In Republic v. Marcos (U.S. cases, 1980s-1990s), U.S. courts pierced immunity for embezzlement as commercial acts, aiding Philippine recovery efforts. Domestically, the Presidential Commission on Good Government (PCGG) pursued ill-gotten wealth, treating it as waived immunity through Marcos's ouster.
Comfort Women and Japanese Immunity: In Malaya Lolas v. Japan (petition denied by Supreme Court in 2010), survivors of wartime sexual slavery sought reparations. The Court upheld Japan's immunity, citing sovereign acts during war, consistent with ICJ's Germany v. Italy ruling. However, it urged diplomatic resolution, highlighting the limits of exceptions in Philippine courts.
Oposa v. Factoran (1993): While environmental, this intergenerational rights case illustrates the Court's willingness to enforce erga omnes obligations, potentially analogous to human rights.
ICC and Duterte Administration: Post-2019 ICC withdrawal, investigations into drug war killings test immunity. Article 27 of the Rome Statute rejects head-of-state immunity, but state immunity persists for civil claims abroad. Philippine courts have invoked complementarity, but no clear exception has been litigated.
Bangsamoro and Indigenous Rights: Conflicts in Mindanao involve allegations of state-sponsored violations. RA 11054 (Bangsamoro Organic Law, 2018) incorporates human rights, but immunity shields military actions unless classified as international crimes.

Challenges in the Philippines include judicial conservatism on immunity, limited universal jurisdiction implementation, and political influences. Victims often resort to international bodies like the UN Human Rights Committee, which in Marlon Recabar v. Philippines (2020) found violations but lacks enforcement.

Emerging Trends and Reforms

Globally, momentum builds for codifying exceptions, as seen in the ILC's ongoing work on immunity and the African Union's Malabo Protocol (2014), which rejects immunity for international crimes. In the Philippines, advocacy for amending RA 9851 to expand civil remedies and ratifying the UNCSI could strengthen exceptions.

Proposals include:

Legislative waivers for jus cogens violations.
Enhanced role for the Commission on Human Rights in facilitating claims.
Bilateral agreements for reparations, as in the Philippines-Japan post-war treaties.

Conclusion

The interplay between state immunity and human rights violations reveals a dynamic evolution in international law, where traditional sovereignty yields to accountability for jus cogens breaches. In the Philippine context, while immunity remains robust for sovereign acts, constitutional commitments and treaty obligations provide avenues for exceptions, particularly in domestic reparations and universal jurisdiction cases. As global norms advance, the Philippines stands at a crossroads: upholding immunity to preserve comity while ensuring justice for victims. Ultimate resolution lies in harmonizing these principles through progressive jurisprudence and international cooperation, ensuring that no state hides behind immunity to perpetrate or evade responsibility for human rights atrocities.