The Immunity Saga Reaches Latin America. The Changri-la Case

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In September 2021, a new episode in the saga of jurisdictional immunities of States unfolded. The Brazilian Supreme Court (Supremo Tribunal Federal, STF) ruled that immunity from jurisdiction ceases when faced with unlawful acts connected to human rights violations (decision in Brazilian Portuguese here). The case concerns the Changri-La fishing boat, sunk in 1943 by a German submarine near Cabo Frio, Rio de Janeiro. Ten fishermen died, and the victim’s relatives sought compensation at the Brazilian courts for their material damages and non-pecuniary losses. Although lower courts recognized the foreign State’s immunity from jurisdiction, following the well-established case law that recognized immunity to jure imperii acts, the STF quashed the decision. Following the vote of the reporting Justice Edson Fachin, the STF, by a narrow majority (6 votes to 5), decided the case adopting the following thesis: (Tema 944) “wrongful acts committed by foreign States in violation of human rights do not enjoy immunity from jurisdiction”. In this post, we endeavor to explain and comment upon the decision’s rationale (early commented here).

Unsurprisingly, the decision caused ripples in the Brazilian legal community, and new developments can be expected as the case returns to the lower courts. The arguments employed by the STF to accept the thesis of the relativization of immunity are noteworthy – especially given the little effort to offer a solution in harmony with international law. Essentially based on the supremacy of the Brazilian constitution, the decision set aside the jurisdictional immunity of Germany giving priority to the constitutional rule of the “prevalence of human rights”. According to Justice Fachin:

“because of the constitutional prescription that gives prevalence to human rights as a principle that governs the Brazilian State in its international relations (Article 4, II), [this Court must] make it effective, setting aside the jurisdictional immunity in the case” (p. 30).

It is the first time the STF needs to deal with wrongful jure imperii acts committed by a foreign State in its territory. The STF built the decision in four steps.

1. War Crimes: “A crime is a crime”.

First, it characterized the act committed by Germany as a war crime, relying on the definition given by the Nuremberg Tribunal. Brazil entered the war in 1942 (Decreto n.º 10.358/1942). According to the STF, “the acts committed in periods of war against civilians in the national territory, even though they are jure imperii, are illicit and illegitimate”. The decision took great pains in explaining the act’s wrongfulness because the core logic of the argument is that the rule of State immunity should not be used as a cloak for wrongfulness.

The passage resonates with the dissenting opinion of ICJ Judge Cançado Trindade in the Jurisdictional Immunities case before the International Court of Justice (directly quoted in the Changri-La decision), to whom:

“[t]here is no immunity for grave violations of human rights and of international humanitarian law, for war crimes and crimes against humanity” (para 179).

2. The law of immunities “remains on the agenda of law International” and “new paths, therefore, are still open”.

Second, the STF tried to verify the status of the rule regarding immunity from jurisdiction in international law. It recognized that the rule governing the field is customary international law and stressed that State immunity is not absolute: several instruments of international law and pieces of foreign legislation confirmed this conclusion.

The Supreme Court placed particular emphasis on Art. 12 of the Draft Articles on Jurisdictional Immunities of States and Their Property, 1991. In addition, the STF noted how different legal instruments recognized this rule. References were also made to recent cases, mentioning the decision in the Ferrini case in Italy, the Distomo case in Greece, and the recent decision of the District of Seoul. It finally concluded that “there are reports of instruments in comparative law and national courts that have removed or mitigated immunity in cases of illegal military acts”. Interestingly, the decision does not give specific weight to this practice or assert its role as an exception to the customary rule. It merely points out that “the issue remains on the agenda of international law” (p. 17). One is left with the impression that the STF resorted to these pieces of practice only to reinforce the possibility of finding exceptions to the rule – without clearly asserting that an exception exists.

Curiously, in this exercise of understanding the rules of customary law governing the field of immunities, the STF ascribed little weight to the 2012 decision of the International Court of Justice. This seems to be one of the most controversial parts of the judgment. The STF did not bother to explain the reasons why the findings of the ICJ did not apply in the present case – findings that examined the same practice the STF examined. The solution found by the Justices to avoid the 2012 judgment was to resort to Article 59 of the International Court’s Statute, which sets forth that judgments are only binding between the disputing parties. According to the STF:

“in any case, the decision of the International Court of Justice is a decision that has no erga omnes and binding effect [to other States], as provided for in article 59 of its own Statute (…). As recognized in article 38 of its Statute, decisions are a subsidiary means to determine the rules of law” (pp. 22-23).

Dismissing ICJ’s decision and argument via Article 59 is, to say the least, a controversial option because it evades the problem. It is true that international judgments only bind the parties to a dispute. Nonetheless, the authority of the determination of the law made by the International Court cannot be selectively overlooked. Although a State could ignore the arguments of the ICJ – something quite reckless in the international legal order – it is difficult to foresee in the reporting justice’s vote an address of the rule referred and authoritatively ascertained by the International Court. By not confronting ICJ’s arguments, the STF missed the opportunity to distinguish its case from the ruling in Jurisdictional Immunities in relation to Ferrini and Distomo cases.

3. The acts in question constitute human rights violations, and “[i]mmunity must yield in the face of an act that violates human rights.”

In its third step, the STF has ascertained different human rights violations – nationally and internationally recognized. The decision refers to the right to life (Art 6 ICCPR), the right to access to justice (Art 1 ICCPR and Arts 8 and 10, Universal Declaration), and the right to truth (Art 32, Additional Protocol I, Geneva Convention). At this point, the tort exception (locus delicti commissi) is once again invoked, and the STF recognized the “[p]ossibility of relativizing immunity from State jurisdiction in case of unlawful acts committed in the territory of the forum State in violation of human rights”.

No apparent reason was given to explain why the thesis (Tema 944) was broadly formulated and comprised “violations of human rights” and not war crimes or even “gross violations” of human rights. As noted elsewhere, this decision would be even broader than the already recognized exceptions in other domestic courts. The scope of the thesis has already been questioned by the Ministério Público Federal (MPF, Office of the Federal Public Prosecutor), asking for the delimitation of the hypothesis for relativizing State Immunity. The MPF suggested the reform of the decision arguing that instead of violations of human rights only “grave violations of human rights and IHL” would be able to avoid the application of the rule of immunity

4. Prevalence of the constitution. “Human rights shall prevail (…) as it is determined by the Constitution”.

The latest (and definitive) blow the STF gave in the law of State immunity came from the Brazilian legal order. Given that the question involved human rights and Art 4. II of the Constitution (dealing with the guidelines for Brazilian foreign relations ) establishes the “prevalence of human rights”, the following conclusion was that this prescription needed to be “made effective” and, thus, it was necessary to “remove immunity from jurisdiction in the case” (p. 33). Perhaps this could be appointed as a significant distinction with the Jurisdictional Immunities case: neither Italy nor Greece had such explicit constitutional provisions when they issued their respective judgements. On the contrary, the constitutions of both countries attribute great weight to general international law in relation to their domestic orders.

Disregarding the fact that “equality among States” is also a guiding principle of Brazilian foreign relations (Art. 4. V), the decision ended up by stressing domestic values over international rules. On the one hand, the court asserts that the State’s immunity from jurisdiction is based on customary law. On the other hand, it stated that customary law “should not always prevail” (p.6), and, in a dualistic exhortation, observed that “customary or not, [the rule] must comply with the Constitution” (p.1).

Today’s violation is tomorrow’s rule?

The Brazilian Court offered a solution to its domestic audience. One can understand that the Tribunal felt no need to identify an exception to the customary rule (as identified by the ICJ) if the application of the constitution would solve the problem. However, it is difficult to find an answer to the international side of the story: there is no proper engagement with international law. As it is well known, the legal response rooted in the domestic arguments is not without its international hurdles. The STF’s decision lacked a clear answer – and not a set of assumptions – about the non-application of the international rule.

The STF’s Changri-la decision can be read in accordance with the Sentenza 238 of the Italian Constitutional court (not mentioned in the decision)(see here, here, and here). When the rule of immunity meets “supreme principles of the constitutional order”, the constitutional order triumphs. Further analysis and commentary seem necessary to understand all the implications of this decision, both to Brazilian and international law. The road for certainty on the field of State immunity (see also here) seems far from coming to an end – and now, with a Latin-American detour. The next steps in the saga within the Brazilian judiciary (and perhaps at the international level) will confirm whether Changri-la’s decision should be read as a new element of practice to be considered in determining exceptions to the customary law of immunities or be perceived as a violation of that law.

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Riccardo Pavoni says

December 3, 2021

Thank you so much for this post, very helpful to those, like me, whose knowledge of Brazilian Portoguese is rudimentary, at best.

Do you have any idea why Sentenza 238 of the It Const Ct was not quoted? Just an oversight? This is very puzzling to me because the Changri-la decision is indeed the Brazilian 238, no doubt (and you duly note it, en passant). It is also puzzling because, on the other hand, more recent developments, such as the Korean case, are quoted.

Curiously enough (to use a metaphor), also Italian courts are sometimes tempted to ignore Sentenza 238. See here

and see Prof. Scovazzi here at p. 167 with a piece titled "As if it didn't exist..."