Sovereign immunity

Overview

Sovereign immunity, also known as Crown Immunity, is a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution. This principle, rooted in the ancient English principle of the monarch's absolute immunity, has evolved significantly over time and varies greatly among different jurisdictions.

History

The concept of sovereign immunity originated in early English law. The maxim "the king can do no wrong" was a fundamental principle of the English constitution, established in the Middle Ages. This principle was based on the idea that the king, as the sovereign ruler, was absolute and could not be held accountable in his own courts.

In the United States, the doctrine of sovereign immunity was adopted from English common law. The Eleventh Amendment to the United States Constitution, ratified in 1795, provides an explicit textual source for the doctrine. The amendment bars suits against states in federal courts without their consent.

Types of Sovereign Immunity

There are two types of sovereign immunity: absolute and restrictive.

Absolute Sovereign Immunity

Under the doctrine of absolute sovereign immunity, a sovereign state is immune from all lawsuits in the courts of another state, regardless of the nature of the action or the character of the relief sought. This form of immunity is rarely applied in modern international law.

Restrictive Sovereign Immunity

Restrictive sovereign immunity is a principle that allows courts in one country to hear cases against foreign governments, but only in certain circumstances. Typically, a foreign state is immune from the jurisdiction of the courts of another state, except for cases involving commercial activities or other specific categories of actions.

Sovereign Immunity in Different Jurisdictions

The application of sovereign immunity varies greatly among different jurisdictions.

United States

In the United States, the federal government possesses sovereign immunity, as do the individual states to varying degrees. The Federal Tort Claims Act (FTCA) and the Tucker Act are the two primary avenues for individuals seeking to hold the federal government liable for damages.

United Kingdom

In the United Kingdom, the Crown has historically been immune from prosecution. However, the Crown Proceedings Act 1947 made the Crown (in the right of the UK government) liable in tort and contract and allowed for civil actions in the courts to be brought against the Crown.

European Union

In the European Union, the principle of sovereign immunity is applied differently. The European Court of Justice (ECJ) has held that Member States can be held liable for damages caused by their breach of EU law.

Criticisms and Controversies

The doctrine of sovereign immunity has been subject to criticism and controversy. Critics argue that it allows governments to avoid accountability for their actions. There are also controversies regarding its application in cases involving human rights abuses.