Imunidade jurisdicional do Estado estrangeiro em face de violações graves do direito internacional

Abstract

Customary international law regulates State jurisdictional immunities. It starts from the general rule par in parem non habet imperium and recognizes the exceptions raised by the doctrine that limits the prerogative to sovereign acts. Although, from the nineteen-nineties emerges the hypothesis that jurisdictional immunity should be excluded whenever it faces the fundamental right of access to court, particularly if the case concerns reparations arising from violations to imperative norms of international law. So, the object of this thesis is State jurisdictional immunity and its inquiry refers to the impact of the fundamental right of access to court over the institute juridical regulation. The methodology uses a inductive approach and selects and organises information through monographic and case study procedures. It also uses bibliographic and documental techniques to gather information. The result is a study structured in three parts, in each one, successively: it presents the theory of autonomous fundament of jurisdictional immunity, the evolution of the restrictive approach, and aspects of the United Nations Convention on the Jurisdictional Immunities of States and Their Goods; it distinguishes the proper juridical regulation of jurisdictional immunities in civil or criminal cases and presents the institute current characteristics based in the International Court of Justice judgment in the Jurisdictional Immunities case and in the discussion and analysis of the European Court of Human Rights case law; it discusses the formation of equivalent protection and controlimiti doctrines, exposing the stalemate brought by the judgment in the Simoncioni case and the analogous question currently awaiting judgment in the Brazilian Constitutional Court, in the Changri-lá case. The thesis concludes that is necessary to distinguish the juridical treatment of jurisdictional immunity as the case refers to civil or criminal matter, and that subordination of jurisdictional immunity to domestic juridical orders conducts to a stalemate in interstate relations. Finally, from these assertions, it concludes that State jurisdictional immunity is a legitimate and reasonable restriction to the right of access to court even in the presence of serious violations of international law.