Does a Sovereign State Immunity Say More than We Think? ITLOS’s Decision in ARA LIBERTAD Case

Abstract

Nation’s immunity from the jurisdiction of other nations’ Courts has been recognized and codified by many nations under the term of ‘Sovereign States Immunity’. But, States still have to emphasize on the scope of this immunity in order to prevent conflicts of States’ sovereignty from enjoyment of other States immunity on their territory. Thus, many nations have provided for a ‘restrictive immunity’ in their domestic law. Following the path of these nations, the 2004 UNCSI has also provided for a ‘restrictive immunity’. However, the 1982 UNCLOS has addressed the issue of Sovereign State Immunity too. Surprisingly or interestingly, the interpretation of UNCLOS Article 32 by ITLOS in Libertad Case demonstrates that unlike to many pretentions or understandings, UNCLOS provides Sovereign States for an ‘absolute immunity’ for warships. This paper will try to find out some justifications for ITLOS’s position before coming to the conclusion that rather than a creative role, ITLOS played its role of interpretation.

Keywords: Sovereign State Immunity; Warship; Restrictive immunity; Absolute immunity; ITLOS.