The Law of State Immunity (Oxford International Law Library)

"The doctrine of state immunity bars a national court from adjudicating or enforcing claims against foreign states. This doctrine, the foundation for high-profile national and international decisions such as those in the Pinochet case and the Arrest Warrant cases, has always been controversial. The reasons for the controversy are many and varied. Some argue that state immunity paves the way for state violations of human rights. Others argue that the customary basis for the doctrine is not a sufficient basis for regulation and that codification is the way forward. Furthermore, it can be argued that even when judgments are made in national courts against other states, the doctrine makes enforcement of these decisions impossible. This fully restructured new edition provides a detailed analysis of these issues in a more clear and accessible manner. It provides a nuanced assessment of the development of the doctrine of state immunity, including a general comprehensive overview of the plea of immunity of a foreign state, its characteristics, and its operation as a bar to proceedings in national courts of another state. It includes a coherent history and justification of the plea of state immunity, demonstrating its development from the absolute to the restrictive phase, arguing that state immunity can now be seen to be developing into a third phase which uses immunity allocate adjudicative and enforcement jurisdictions between the foreign and the territorial states. The United Nations Convention on Jurisdictional Immunities of states and their Property is thoroughly assessed. Through a detailed examination of the sources of law and of English and US case law, and a comparative analysis of other types of immunity, the authors explore both the law as it stands, and what it could and should be in years to come." Contents Foreword by Judge Sir Kenneth Keith Preface and Acknowledgments List of Abbreviations Table of Cases Table of Legislation Table of UNCSI Articles Introduction The plea as one of mixed international and municipal law The functions which State immunity serves The sources of the law of State immunity The recent development of the law of State immunity The three models on which immunity is based Structure of the book State immunity as a case study of the structure of international law PART I GENERAL CONCEPTS 1. The Institution of Proceedings and the Nature of the Plea of State Immunity The institution of proceedings Immunity as a rule of international law The role of national law Outline of the plea of State immunity Proceedings in court: criminal and civil 2. The Three Models of the Concept of State Immunity The changing role of the independence and equality of the State The First Model, the absolute doctrine: the independence of the State The inability of the national court to enforce its judgments against a foreign State The Second Model: the restrictive doctrine The distinction into public and private law acts used as legal device in other areas of regulation The merits and faults of the distinction into public and private law acts The Third Model: immunity as a procedural exclusionary plea From bilateralism of rights to a vertical hierarchy? Assessment of the Third Model 3. The Plea of State Immunity Distinguished from Act of State and Non-justiciability Proceedings in national courts where a foreign State affects the court’s exercise of jurisdiction Special features of proceedings where the State is party State Practice relating to pleas of Act of State and Non-justiciability: US law English law Act of a foreign State The plea of non-justiciability Modification where ‘a foothold in domestic law’ Modification where a procedural right of access Pleas of Act of State, non-justiciability and State immunity compared 4. State Immunity and Jurisdiction: Immunity from the Civil and Criminal Jurisdiction of National Courts The competing principle of sovereign territoriality The extraterritorial extension of the State’s jurisdiction Universal jurisdiction The relationship of immunity to jurisdiction The distinction into civil and criminal jurisdiction Additional jurisdictional links in civil proceedings against a State The exercise of criminal jurisdiction over a foreign State PART II THE SOURCES OF THE LAW OF STATE IMMUNITY 5. A Review of the Sources: Treaties and Projects for Codification International conventions relating solely to State immunity The resolutions of international bodies Decisions of international tribunals Decisions of national courts Treaty practice as a source The 1926 Brussels Convention and the 1934 Protocol The 1972 European Convention on State Immunity Projects for codification by governmental and non-governmental bodies 6. The Restrictive Doctrine of State Immunity: Its Recognition in State Practice Early development The formulation of a general rule of immunity of the State Common law jurisdictions: UK law US law Other common law jurisdictions The development of the restrictive doctrine in civil law countries Russia and other East European Countries African and Asian States 7. English Law: The UK State Immunity Act 1978 Status General structure of the UK State Immunity Act 1978 Definition of the foreign State Waiver The exceptions to immunity: non-immune commercial activities English law: immunity from enforcement Recognition and enforcement of foreign judgments given against foreign States English law: procedure The Civil Procedure Rules Proof of the status of a foreign State or government Commencement of proceedings against a foreign State Service of Process Burden of proof 8. US Law: The Foreign Sovereign Immunities Act 1976 Immunity from adjudication General structure of the Foreign Sovereign Immunities Act 1976 Jurisdiction Definition of the Foreign State Waiver Exceptions to immunity from adjudication The Alien Tort Act 1789 and the Torture Victim Protection Act 1991 The Anti-terrorism and Effective Death Penalty Act 1996, the Seventh Amendment to the FSIA Immunity from execution of the State and its property Amendment of the FSIA relating to execution against State property 9. The 2004 UN Convention on Jurisdictional Immunities of States and their Property: General Aspects Legislative history: the ILC’s work and its consideration in the United Nations Status of the Convention Interpretation of the Convention Structure of the Convention The general rule of immunity in the Convention Exclusions A general assessment of the Convention Implementation by States which have ratified the Convention PART III THE CURRENT INTERNATIONAL LAW OF STATE IMMUNITY 10. The Definition of the Foreign State External attributes as an independent and sovereign State Recognition of a State or government Internal attributes of the State Head of State Constituent units and political subdivisions State agencies Representatives of the State: Individuals Central banks 11. The Consent of the Foreign State: Waiver and the Arbitration Exception The nature of consent of a foreign State in proceedings in national courts Consent under the UN Convention Consent of the State to the exercise of jurisdiction by the court of the forum State Consent by choice of jurisdiction as constituting waiver Counterclaims: matters covered by waiver Waiver and the arbitration exception UNCSI Article 17 arbitration exception: limitations 12. The Concept of Commerciality The Three requirements for an exception to immunity Acta jure imperii Acta jure gestionis Techniques for determination of the commerciality of the act Evaluation of the restrictive doctrine 13. Immunity from Adjudication: the Proceedings in which Immunity Cannot be Invoked, the Commercial and Other Exceptions The exception for commercial transactions The exception for ownership, possession and use of property The taking of property in violation of international law The exception for infringement of intellectual property rights Participation in companies or other collective bodies The exception for ships owned or operated by a State 14. Immunity from Adjudication: The Employment Exception in respect of (1) A Foreign State and (2) An International Organization (1) A foreign State’s immunity and the exception for employment contracts The three Models of employment contracts with a Foreign State The exception for employment contracts in UNCSI Article 11(2) Circumstances where the rule of immunity still prevails UNCSI Article 11(2) (2) An international organization’s immunity and the exception to immunity for employment contracts Allocation of responsibility in respect of employees of an international organization Employment contracts of the international organization and of the foreign State compared 15. Immunity from Adjudication: The Territorial Tort Exception Part One: UN Convention Article 12 Legislative history Jurisdictional connection Applicable law to determine cause of action Types of tortious conduct Exclusions Part Two: impact of the Jurisdictional Immunities Judgment Three controversial types of loss 16. State Immunity from Enforcement: General Aspects The reasons underlying no enforcement against State property State Practice: the general rule and modifications Immunity from enforcement in the UN Convention State immunity from measures of constraint in connection with proceedings before a court The distinction into pre- and post-judgment Types of coercive measures Coercive measures against the State representative Subject-matter of coercive measures 17. The Three Exceptions to Immunity from Enforcement and the Five Categories of State Property listed as Immune The three exceptions to the General Rule of Immunity from enforcement Consent of the State Allocation of State property by the State Use or intended use for commercial purposes The five categories of State property listed as immune Diplomatic property Military property Central bank property Cultural heritage of the State State property forming part of an exhibition Conclusions with regard to Chapters 16 and 17 PART IV OTHER IMMUNITIES 18. Immunity of Individuals Acting on Behalf of the State The head of State Immunities of other high-ranking officials Special missions Immunity ratione materiae of State Officials 19. International Organizations and Special Regimes International organizations Diplomats and the diplomatic mission Consular immunity Visiting armed forces Other issues: private military and security companies and policing and law enforcement PART V CONCLUSIONS 20. Taking Stock Appendix: The United Nations Convention on Jurisdictional Immunities of States and Their Property Select Bibliography Index Revised and updated to include recent developments since 2013, the third edition of The Law of State Immunity provides a detailed guide to the operation of the international rule of State immunity which bars one State's national courts from exercising criminal or civil jurisdiction over claims made against another State. Building on the analysis of its two previous editions, it reviews relevant material at both international and national levels with particular attention to US and UK law; the 2004 UN Convention on Jurisdictional Immunities of the State and its Property (not yet in force), and also seeks to assess the significance of recent changes in the evolution of the law. Although the restrictive doctrine of immunity is now widely observed by which foreign States may be sued in national courts for their commercial transactions, the immunity rule remains controversial, not only by reason of the recognition of a single State's right to deny a remedy for a wrong - China, a major trading State, continues to adhere to the absolute bar - but also by the exclusion of any reparation or relief for the commission on the orders of a State of grave human rights violations. The complexity and moral challenge of the issues is illustrated by high profile cases such as Pinochet , Amerada Hess , Saudi Arabia v Nelson and more recently NML v Argentina in national courts; Al-Adsani v UK and Jones v UK in the European Court of Human Rights; and J udgments of the International Court of Justice in Arrest Warrant , Djibouti v France and most recently in the Jurisdictional Immunities of the State , which, particularly since the 2014 contrary ruling of the Italian Co Court, has attracted strong juristic criticism. The expanding extraterritorial jurisdiction of national courts with regard to torture in disregard of pleas of act of State and nonjusticiability as in Belhaj and Rahmatullah offers a further challenge to the exclusionary nature and continued observance of State immunity. Recent developments in key areas are examined, impleading; public policy and non-justiciability; universal civil jurisdiction for reparation for international crimes; the application of the employment exception to embassies and diplomats; immunity from enforcement and procedural measures; immunity of State officials, and tensions between national constitutional requirements and superior international norms. "Although the restrictive doctrine now permits States to be sued in national courts for their commercial transactions, the doctrine of State immunity remains controversial, particularly by reason of high-profile national and international decisions such as Pinochet and Arrest Warrant. Despite the International Court's ruling in the 2012 Jurisdictional Immunities case that the plea of State immunity is procedural and is entirely separate from questions of State responsibility and any obligation to make reparation, controversy continues. Some argue that State immunity paves the way for State violations of human rights and further bars the prosecution of State officials for such acts. Others contend that the customary source of the doctrine is not a sufficient basis for regulation and that codification is the way forward. Furthermore, even when judgments are made in national courts against other States, the doctrine may make enforcement of these decisions virtually impossible. This fully restructured new edition provides a detailed analysis of these issues in a clear and accessible manner. It provides a nuanced assessment of the development of the doctrine of State immunity, including a comprehensive overview of the plea of immunity, its characteristics, and the exceptions, with a comparison of the employment exception as regards the foreign State and international organisations. It includes a coherent history and justification of the plea, arguing that a third model of State immunity despite its procedural nature permits the allocation of adjudicative and enforcement jurisdictions between the foreign and the territorial States. The United Nations Convention on Jurisdictional Immunities of States and their Property is thoroughly assessed, including its implementation by ratifying States. Through a detailed examination of the sources of law and of English and US legislation and case law, and a comparative analysis of other types of immunity, the authors explore both the law as it stands, and what it could and should be in years to come"--Unedited summary from book jacket The Doctrine Of State Immunity Bars National Courts From Adjudicating Or Enforcing Claims Against Foreign States. This Updated Edition Of This Book Provides A Thorough Analysis Of The Doctrine, Explores High-profile Cases, The Un Convention On The Jurisdictional Immunities Of States, And Provides Comparative Coverage Of Uk And Us State Practice. Introduction -- The Institution Of Proceedings And The Nature Of The Plea Of State Immunity -- The Three Models Of The Concept Of State Immunity -- The Plea Of State Immunity Distinguished From The Act Of State And Non-justiciability -- State Immunity And Jurisdiction : Immunity From The Civil And Criminal Jurisdiction Of National Courts -- A Review Of The Sources : Treaties And Projects For Codification -- The Restrictive Doctrine Of State Immunity : Its Recognition In State Practice -- English Law : The Uk State Immunity Act 1978 -- Us Law : The Foreign Sovereignty Immunities Act 1976 -- The 2004 Un Convention On Jurisdictional Immunities Of States And Their Property : General Aspects -- The Definition Of Foreign State -- The Consent Of The Foreign State : Waiver And The Arbitration Exception -- The Concept Of Commerciality -- Immunity From Adjudication : The Proceedings In Which Immunity Cannot Be Invoked, The Commercial And Other Exceptions -- Immunity From Adjudication : The Employment Exception In Respect Of (1) A Foreign State And (2) An International Organization -- State Immunity From Enforcement : General Aspects -- The Three Exceptions To Immunity From Enforcement And The Five Categories Of State Property Listed As Immune -- Immunity Of Individuals Acting On Behalf Of The State -- International Organizations And Special Regimes -- Taking Stock. Hazel Fox, Cmg, Qc; Philippa Webb. Includes Bibliographical References (pages 625-628) And Index. "This book examines the controversial doctrine of State immunity which bars national courts from adjudicating or enforcing claims against foreign States. This fully updated second edition has been completely restructured to examine the current international law of State immunity in the light of the 2004 United Nations Convention on Jurisdictional Immunities of States and their Property. The increasing direct application of international law by national courts challenges the extent to which immunity protects the regulatory discretion of governments. This book covers all aspects of that conflict, explores high-profile cases, provides a critical coverage of UK and US State practice and a comparative analysis of immunity as it applies to Heads of State and other State officials."--Jacket