The article provides a fresh re-examination of the conceptual foundations of the sovereign immunity doctrine in the light of the changing character of sovereignty itself. This is done in the context of the changing expectations in international law generated by the UN Charter, and the development of human rights and humanitarian law. The article applies the innovative communications theories generated by the New Haven School to provide a more realistic and relevant approach to the issue of international law-making in this area. The article provides an overview of the emergence of changed expectations relating to the restrictions on the scope and reach of sovereign immunity. It reviews the developing practice, the emerging statutory developments, and the emerging developments in international treaties. It also surveys the leading case law from European jurisdictions as well as the United States, and it provides a critical analysis of the most recent World Court decision dealing with the precise reach of sovereign immunity. The article concludes that law-making is dynamic and that a broader and more comprehensive approach to international law-making in this context will make a strong case for an expansion of the restrictive theory of sovereign immunity to cover, for example, the problem of jus cogens violations.
Winston P. Nagan & Joshua L. Root, The Emerging Restrictions on Sovereign Immunity: Peremptory Norms of International Law, the U.N. Charter, and the Application of Modern Communications Theory, 38 N.C. J. Int'l L. & Com. Reg. 375 (2013), available at http://scholarship.law.ufl.edu/facultypub/589.