The Myth of the Customary Nature of the United Nations Convention on State Immunity: Does the End Justify the Means?

According to the European Court of Human Rights (ECtHR), the not-yet-in-force 2004 UN Convention on Jurisdictional Immunities of States and Their Property (UNCSI) codifies the customary law of State immunity. This chapter challenges that unqualified view, which signals a superficial reading of the UNCSI process, background and norms. A primary illustration is offered by Article 11 on the employment exception to State immunity which, taken as a whole, is simply not validated by uniform State practice. Nonetheless, the ECtHR has consistently relied on that UNCSI provision. The chapter does not lose sight of the high level of protection of embassy employees and similarly-situated individuals which derives from the ECtHR UNCSI-related jurisprudence and accepts that that level of protection may have been the ultimate end pursued by the Court. Yet it is open to question whether that end is worth every legal means, including reliance on a convention which, in various respects, might result in an undue ossification and regression of the law of State immunity as hitherto interpreted and applied by many States.