Evolution of the Doctrine of Jurisdictional Immunity of a Foreign State

The transformation of doctrinal views on the problem of jurisdictional immunity of a foreign state as an independent subject of scientific research is currently particularly relevant, given not only the qualitative change in the participation of public actors in cross-border private law relations, but also global digitalization and the modern geopolitical situation, suggesting the need to protect national interests in the field of international trade.

The objectives of this study are to analyze the institution of jurisdictional immunity of the state as a participant in cross-border private law relations, which involves the consistent solution of the following tasks: to present a retrospective of the formation of ideas about the complete inviolability of a foreign state from internal legal procedural actions; to analyze the causes and development of the idea of the need to limit the jurisdictional immunity of the state; to investigate the approaches to solving this issue that existed in the domestic doctrine at different stages of the existence of the Russian state; to study modern views on this issue, reflected in international normative acts and judicial practice.

The methodological basis of the research consists of such general scientific dialectical methods of cognition as ascent from the abstract to the whole, comparison, analysis and synthesis, deduction and induction, etc. A number of special scientific methods are also used: descriptive, comparative legal, systemic, historical-legal, formal-legal and others.

According to the results of the study, it can be concluded that the evolution of the legal concept reflected in the judicial practice of national and international judicial institutions illustrates a gradual departure from the idea of jurisdictional immunity of the state in its absolute understanding in favor of a limited one, and in recent years the tendency to expand the list of cases when the state cannot invoke the existence of immunity from the jurisdiction of another state. An innovation in this area, which certainly has a solid conceptual basis and serious prospects for further development, can be considered the denial of immunity on grounds of public order for the protection of human rights. At the same time, in the near future, the growing conflict between the constitutional (internal) law of the state and international norms will require its resolution.