This section explores the fundamental tension between the customary international law of state immunity and the emerging primacy of peremptory norms (jus cogens). This page provides the necessary materials to investigate the following core legal questions:
Is State Immunity Absolute?
Does a state lose its immunity in foreign domestic courts when accused of grave human rights violations, or is immunity a procedural bar that exists regardless of the gravity of the act?
- Primary Source (Pro-Immunity): ICJ Judgment: Germany v. Italy (2012). The International Court of Justice held that a state is not deprived of immunity even if it is accused of serious violations of international human rights law.
- Primary Source (Restrictive-Immunity): Seoul Central District Court Ruling (Jan 2021). A landmark decision arguing that immunity should be waived if the defendant state "destroyed universal values" of the international community.
- Secondary Resource: UCLA Law Symposium Paper (2021). An analysis of how South Korea's "Rights Revolution" is shattering traditional immunity paradigms.
The "Domestic Tort" Exception
Can the recruitment and transport of laborers on the forum state's territory be classified as a "local tort" that bypasses the need for a sovereign immunity analysis entirely?
- Primary Source: Article 12 of the UN Convention on Jurisdictional Immunities. Investigating the "Personal Injury and Damage to Property" exception.
- Secondary Resource: Seoul High Court (2023) Decision Analysis. Examining the court's "one step further" approach in applying tort exceptions to sovereign acts.
The Post-Colonial Puzzle
Does the principle of sovereign equality (on which immunity is based) apply to relations between a former colonizer and its former colony for acts committed during annexation?
- Secondary Resource: Asian Journal of Law & Society Article (2025). "Ambivalent Identity: A Postcolonial Review of Korean Court Judgments." This paper questions if immunity—a norm for equal states—can be applied to "incorporated but unequal" colonial histories.
Comparative Perspectives:
To provide broader context, we have curated resources regarding similar jurisdictional battles in other regions:
- The "Italian Approach": Ferrini v. Federal Republic of Germany (2004).
- The "Brazilian Approach": Brazilian Federal Supreme Court Ruling (2021) regarding German U-boat attacks.
- The "Greek Approach": Distomo Massacre Litigation (2000).