Recommendation 7

There is some doubt as to whether limb 16(1)(aa)(ii) grants greater immunity than that required by customary international law and therefore may not be compatible with the right to access a court under Article 6 ECHR. The Government should provide detailed analysis to justify why this limb is required by customary international law Proposal for a draft State Immunity Act 1978 (Remedial) Order 2022: State Immunity & The Right of Access to a Court 23 and to explain the sorts of conduct that it envisages it catching. Alternatively, the Government should consider redrafting limb 16(1)(aa)(ii) to ensure it goes no further than the immunity required by customary international law.