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Immunity, Inviolability and Countermeasures - A Closer Look at Non-UN Targeted Sanctions

The starting point for our analysis is the increased recourse, in recent years, to the imposition of targeted sanctions against persons and entities that enjoy some form of immunity under international law (1(b)). Coupled to this is the finding that these sanctions, or at least some of them (e.g., asset freezes targeting central banks), are frequently regarded in legal doctrine as giving rise to a breach of immunity law – save perhaps inasmuch as they can be justified as ‘countermeasures’ (1(c)). The present paper takes a closer look at the latter suggestions. In particular, Section 2 addresses the question whether international immunities (of States and State officials) are at all affected by targeted financial sanctions, having regard to the fact that these sanctions are adopted by the executive or by the legislative branch, rather than by the domestic judiciary. In so doing, the section seeks to explore the outer limits of immunity law, and to assess whether its operation presupposes a link to domestic judicial proceedings. Section 3 subsequently explores the fault line between immunity and inviolability in international law with a view to determining whether non-UN targeted sanctions – even when they do not conflict with international immunities – may nonetheless encroach upon the inviolability conferred upon States or certain State officials under international law. While the focus again rests primarily on financial sanctions (read: asset freezes), the analysis also touches upon the permissibility of travel bans. Next, Section 4 turns to the related question whether breaches of immunity law can constitute lawful countermeasures in reaction to prior internationally wrongful conduct of the State that is targeted (or whose entities/officials are targeted). Section 5 concludes.