In its final Judgment in the Changri-lá case,Footnote ¹ the Brazilian Supreme Court found that “unlawful acts committed by foreign States in violation of human rights, within national territory, do not enjoy immunity from national jurisdiction.”Footnote ² This decision departs from the landmark 2012 judgment of the International Court of Justice (ICJ) in Jurisdictional Immunities, which found that Italian courts should have afforded Germany sovereign immunity even with respect to claims of grave human rights violations, including war crimes.Footnote ³ Changri-lá represents the first decision by a national Supreme Court to defy the ICJ on this question, affirming that as a matter of international law, states do not enjoy immunity from jurisdiction for acts in (grave) violation of human rights.

Like Jurisdictional Immunities, the Brazilian case arose out of Germany's conduct during World War II. It concerned a claim to compensation for the sinking of a fishing boat (Changri-lá) by a German U-199 submarine, which resulted in the death of ten fishermen in July 1943. The complainants, Karla Christina Azeredo Venâncio da Costa e and others, are grandchildren, or their widows, of one of the victims (p. 5). In 2001, an administrative fact-finder, the Brazilian Maritime Tribunal, concluded that the German submarine had intentionally torpedoed the Changri-lá in an act of war.Footnote ⁴ The event took place in the Brazilian territorial sea, close to the city of Cabo Frio when Brazil had already declared a state of war (pp. 14–15).Footnote ⁵

On that basis, the complainants filed suit in 2006 at the Federal Court of Rio de Janeiro (First Instance). Judge Júlio Emílio Abranches Mansur decided that the claim was inadmissible because of German immunity for acta jure imperii.Footnote ⁶ On appeal, the Superior Court of Justice unanimously agreed that Germany was “absolutely immune from Brazilian jurisdiction” regarding acta jure imperii.Footnote ⁷

The complainants appealed to the Constitutional Court, which is the final instance of appeal in Brazil's judicial system. Justice Edson Fachin wrote for a 6–5 majority. His opinion is grounded in both international law and Brazilian constitutional law. It determines that international law affords Germany only relative immunity from jurisdiction, basing his finding primarily on Italy's arguments and Judge Cançado Trindade's dissenting opinion in Jurisdictional Immunities. It further determines that Article 4, II of the Brazilian Constitution, which provides that “the international relations of the Federative Republic of Brazil are governed by the . . . (ii) prevalence of human rights,”Footnote ⁸ prioritizes human rights over immunity.

The opinion proceeds in four parts. First, it recalls the Court's traditional jurisprudence on the topic, i.e., recognizing foreign states’ immunity from jurisdiction for acta jure imperii.Footnote ⁹ In that context, the opinion affirms that Brazil is not a party to the UN Convention on the Immunities of States and their Properties (UN Convention) or any like instrument. Thus, in Brazil, the matter is regulated by customary international law (CIL) (p. 10).

Second, the opinion differentiates Changri-lá from previous cases decided by the Court. In earlier decisions, mainly dealing with labor relations, the Court ruled that foreign states did not enjoy immunity from jurisdiction for acta jure gestionis, only imperii. Footnote ¹⁰ For Fachin, these precedents, however, did not concern cases of human rights violation and war crimes like the Changri-lá—and concentrating on this fact could justify a departure from the rule of absolute immunity from jurisdiction in relation to acta jure imperii (p. 13). In so doing, Justice Fachin implicitly found that Germany had violated international obligations even before assessing whether it was entitled to immunity (p. 18).Footnote ¹¹

The third part deals directly with the immunity question under international law. Fachin initially appeals to the territorial tort exception to state immunity, as contained in Article 12 of the UN Convention and reflected in the commentaries of the International Law Commission (ILC) in the Draft Articles on Jurisdictional Immunities of States and their Property. He explains that the tort exception makes no distinction between jure imperii and jure gestionis actsFootnote ¹² (pp. 18–19).Footnote ¹³ In his view, the ILC's version of the territorial tort exception implies that there is not absolute immunity for acta jure imperii (p. 20).

Further, Justice Fachin finds that [even if acta jure imperii are entitled to absolute immunity,] violations of jus cogens norms cannot be considered acta jure imperii.Footnote ¹⁴ Criticizing the Jurisdictional Immunities precedent as “conservative,” “traditional,” and “classic,”Footnote ¹⁵ Fachin notes that the decision is binding only on the litigating parties. Beyond that, the ICJ judgment is merely a subsidiary means for ascertaining rules of international law (pp. 31–32). Considering the development in state practice,Footnote ¹⁶ Fachin explains that “new paths are, therefore, still open.”Footnote ¹⁷ He then mostly ignores the ICJ's judgment. The sole direct reference to it concerns the 1963 lump sum compensation agreement between Italy and Germany. Justice Fachin mentions the absence of any similar agreement between Germany and Brazil and concludes, seemingly because of this absence, that “the relativization of immunity from State jurisdiction in case of unlawful acts exercised in the territory of the court in violation of human rights remains, as I see it, possible” (pp. 32–33).

In the fourth part, the Constitutional Court articulates the 1988 Brazilian Constitution's “principle of the prevalence of human rights” harmoniously with Cançado Trindade's understanding of the international law of immunities in his Jurisdictional Immunities dissent (p. 37).Footnote ¹⁸ For Fachin, the Constitution's drafters adopted a new paradigm for international relations within the constitutional order (pp. 36–37). In other words, it is not simply a matter of dualism or conflict between constitutional rights and a rule of international law providing for state immunity. The Brazilian Constitution provides for how the international legal order must be apprehended by organs in the Brazilian legal order—specifically by prioritizing human rights. Fachin understands that Cançado Trindade supported this new paradigm, under which, “in the words of Cançado Trindade, no longer preponderates the sovereignty of States, but human beings” (id.).

In this case, Fachin found that the human rights of the victims’ families should prevail in two respects.Footnote ¹⁹ First, Fachin considered that the right to truth should prevail, such that families should be able to know the fates of their members (p. 33).Footnote ²⁰ Second, Fachin considered that “access to justice” is itself a fundamental human right sufficient to cast aside immunity in this case (pp. 34–35).Footnote ²¹ Like Cançado Trindade, the Court aligned itself with the view that human interests prevail over state sovereignty in contemporary international law, meaning, here, that the human rights “to life, truth, and access to court” shall prevail over immunity (pp. 36–37).Footnote ²²

In concluding, Fachin uses a sentence from Cançado Trindade's dissenting opinion as a catchphrase: “[A] crime is a crime.” Acts in violation of human rights ought not be considered jure imperii but jure criminis.Footnote ²³ He concludes that “immunity must, thus, yield before an act attacking human rights. It is not, as seen, an absolute rule.” On that basis, he advances the following “thesis” (Tema 944):Footnote ²⁴ “unlawful acts committed by foreign States in violation of human rights do not enjoy immunity from national jurisdiction” (p. 39). The Constitutional Court adopted his opinion and his proposed thesis by a 6–5 majority.

Following the Judgment, the prosecutor general of the republic filed a motion for clarification. The motion requests the Court to limit its precedent to “international crimes implying grave violation of human rights and humanitarian law,” instead of unlawful acts in violation of human rights, and to limit its precedent to acts taking place in national territory.Footnote ²⁵ This was not an appeal. The point of this motion is that these changes in the thesis would better and more clearly reflect the judgment. The majority rejected the first but welcomed the second request—finding that only the latter change accurately reflects the spirit of the judgment.Footnote ²⁶

* * * *

At first glance, this decision seems relevant as an instance of state practice supporting further restricting state immunity. In fact, it is a particularly probative example, as it represents a national supreme court explicitly engaging with and rejecting the ICJ's approach to sovereign immunity—the first to do so since 2012. However, the opinion is open to criticism. The biggest problems concern the Court's: (1) use of human rights violations, rather than the more serious category of international crimes, as the threshold for denying immunity; and (2) approach to the relationship between international and domestic law.

The great novelty of the Changri-lá case lies in how low it sets the threshold for setting aside immunity: a mere violation of human rights. This seems much too low. This understanding is especially problematic where the exercise of extraterritorial jurisdiction is concerned, but, after the motion for clarification, the precedent was rewritten to include only acts within national territory. As seen above, the prosecutor general unsuccessfully questioned the threshold itself. He underlined that the foreign precedents underpinning Fachin's opinion and Cançado Trindade's dissent refer to “international crimes.”Footnote ²⁷ Professors Lucas Lima and Aziz Saliba also raised the issue in their commentary on the case, questioning why “war crimes” or “‘gross violations’ of human rights” were not adopted as the threshold.Footnote ²⁸ Instead, by setting the threshold at mere violations of human rights, the Court advanced an unprecedented position on relative immunity.

To address these criticisms, one must make sense of how the Constitutional Court worked out “international crimes,” “human rights,” and “peremptory norms.” In the third part, focusing on the international legal order, Fachin followed Italy in Jurisdictional Immunities and understood that a violation of jus cogens norms (or an international crime) cannot be considered a sovereign act. Under that perspective, there would be no acta jure imperii for which Germany was to enjoy immunity from jurisdiction. By quoting Italy, he also addressed the normative hierarchy theory, under which jus cogens norms are prioritized over all others, including immunity rules (see note 14 supra). Indeed, that has been a common doctrinal approach for reformists since the 1990s.Footnote ²⁹ However, immediately after quoting Italy, he concluded that “thus, there is either no act of State or the immunity arising therefrom must yield before the preponderance of human rights” (p. 25). In that exercise, he clearly conflated the concepts human rights rules and jus cogens rules, weakening the opinion's analysis of international law.

In contrast, in turning to the Brazilian constitution, Fachin directly emphasizes human rights, particularly the rights to truth and to access to court. In light of the international legal possibility of relativizing immunity for acts of state, Fachin turned to the requirements of the Brazilian constitution in this regard. From there, the argument is simple. In the view of the Court: the Constitution determines the “prevalence of human rights” in Brazil's international relations; he picks the (human) rights to truth and to access to court from the international legal order; these rights prevail over state immunity. Lima and Saliba have opined that the “the decision ended up by stressing domestic values over international rules,”Footnote ³⁰ similarly to the Sentenza 238 of the Italian Constitutional Court.Footnote ³¹ But this misses the point. In formal terms, the Brazilian Court found that international law permits relativizing German immunity, while the Brazilian constitution requires doing so in relation to human rights violations (Article 4, II). Thus, it can be maintained that the Court understood itself to be applying international law in conjunction with, not in conflict with, Brazilian constitutional law. The way the Court conflated the normative hierarchy theory (see note 14 supra), used by some in the international legal epistemic community, with the constitutional “prevalence of human rights” is certainly reproachable.

That said, the Court's handling of Brazilian constitutional law is subject to criticism. As raised by Justice Mendes (see note 8 supra), Article 4 of the Constitution presents other principles governing Brazil's international relations, including “national independence” and “equality among the States.” The weight given to the “prevalence of human rights” seemed arbitrary or, at any rate, unconvincing—at least for those who do not follow Cançado Trindade.

And from an international law perspective, the criticism remains that the Court did not adequately address “conservative” foreign and international precedents. In other words, it concluded much too easily that Germany's immunity in that case could be relativized, and with an unprecedently low threshold. The focus of the opinion is naturally on Jurisdictional Immunities, which the majority waived away as binding only on the litigating parties in that case and, otherwise, qualified as merely a subsidiary means for determining rules of law. While this is true, to rely on the decision's non-binding character might be “something quite reckless in the international legal order,”Footnote ³² especially where the purpose of advancing a new rule of CIL is concerned—where, inter alia, persuading other relevant actors is necessary. It should be acknowledged, however, that customary international law is often made in the breach.

The fact is that the Brazilian Court's approach opens a broader question about the role of precedents by international courts. The international legal epistemic community is used to reading ICJ decisions as, if not erga omnes binding, authoritative statements of international law.Footnote ³³ Yet, the authoritativeness of international judicial decisions (or WTO Appellate Body reportsFootnote ³⁴) is difficult to grasp, especially if contrasted with states’ own authority to interpret and apply international rules in a horizontal legal system. Brazil, according to the Supreme Court, has made a normative choice to interpret and apply international law according to the prevalence of human rights. It remains to be seen, however, whether the Brazilian precedent will herald a new customary norm of relative immunity, or just one more breach of the status quo rules.