A new update in the Changri-la Case

The professors members of the Jean Monnet Center of Excellence, Professor Lucas Lima and Azziz Tuliba, discussed about a new episode involving the Changri-la Case (link at the end).

In September 2021, the Brazilian Supreme Court (Supremo Tribunal Federal, STF) ruled that immunity from jurisdiction ceases when faced with unlawful acts connected to human rights violations, referring to the Changri-La Case, in which a fishing boat was sunk in 1943 by german forces near Rio de Janeiro. In result, ten fishermen died and their relatives sought compensation for material damages and non-pecuniary losses. Although lower courts recognized the foreign State’s immunity from jurisdiction, following the law case that recognized immunity to jure imperii acts, the STF quashed the decision. The STF, by a narrow majority of 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 spite of being noteworthy, the STF’s thesis of the relativization of immunity caused dispute in the Brazilian legal community, 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”. In summary, 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,, relying on the Nuremberg Tribunal’s definition, it characterized the act committed by Germany as a war crime. 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”, in other words, the State immunity in periods of war should not be used as a cloak for wrongfulness.

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

Second, the STF, verifying the status of the rule regarding immunity from jurisdiction in international law, recognized that the rule governing the field is customary international law and stressed that State immunity is not absolute, in accordance to several instruments of international law.

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, analyzing recent cases such as the Ferrini case (Italy), the Distomo case (Greece) and the recent decision of the District of Seoul, 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”. It is worth noting that the decision does not give specific weight to the fact that this constitutes an exception in custumary rule, leaving one 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, the STF ascribed little weight to the 2012 decision of the International Court of Justice. Seeming 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. 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.

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. 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. 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 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. In conclusion, 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.

Today’s violation is tomorrow’s rule?

The Brazilian Court offered a solution to its domestic audience. However, it is difficult to find an answer to the international side of the story: there is no proper engagement with international law. 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. 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 seems far from coming to an end. The next steps in the saga within the Brazilian judiciary 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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