Immunity from jurisdiction and human rights: two sticks don’t make a fire

Abstract

During 2021, two domestic courts – the District Court of South Korea and the Brazilian Supreme Court– ruled on two cases related to States’ immunity from jurisdiction and the violation of human rights. Both courts decided that immunity was not applicable due to the fact that the acts covered by the dispute were affected by violations of human rights. In both cases the courts appealed to their constitutional norm and to the evolution of international practice in order to put protection of human rights before the principle of sovereign immunity of the States. While the District Court of South Korea in the Comfort Women against Japan case based its decision on the protection of victims of crimes against humanity and the victims’ right to judicial protection; in the Changri-la against Brazil case, the Brazilian Federal Supreme Court applied human rights laws in broad terms in order to support the exception to immunity. This article questions the legal foundations that both tribunals used in their application of the exception to immunity from jurisdiction.