The Law of State Immunity

by Fox QC, Hazel

• ISBN13: 9780199211111
• ISBN10: 0199211116
• Edition: 2nd
• Format: Paperback
• Copyright: 2008-10-03
• Publisher: Oxford University Press

Summary

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. Still others argue 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 addresses all of these issues by reference to the United Nations Convention on Jurisdictional Immunities of States and their Property. 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, Hazel Fox explores both the law as it stands, and what it could and should be in years to come.

Author Biography

Lady Fox QC is a Barrister in practice at 4-5 Grays Inn Square, Grays Inn.

Table of Contents

Acknowledgements	p. v
Foreword	p. vii
Table of Cases	p. xvii
Introduction	p. 1
The plea as one of mixed international and municipal law	p. 1
The functions which State immunity serves	p. 1
The three different phases of State immunity	p. 2
The sources of the law of State immunity	p. 2
The third post-modern phase of State immunity	p. 5
Challenges to the retention of a plea of State immunity for acts in exercise of sovereign immunity	p. 5
Challenges to the retention of State immunity for acts contrary to international law	p. 7
Immunity from execution	p. 8
State immunity as a case study of the structure of international law	p. 8
Structure and General Concepts
Immunity as a Rule of International Law	p. 13
As a rule of law and not a discretionary privilege	p. 13
As a rule of international law	p. 18
The Institution of Proceedings and the Nature of the Plea of State Immunity	p. 26
The institution of proceedings	p. 27
Outline of the plea of State immunity	p. 30
The different responses of immunity, act of state, and non-justiciability in proceedings relating to a foreign State	p. 36
The Concept of the State: Theory and the Justification for State Immunity	p. 40
The concept of the State	p. 40
Post-modernism and the concept of the State	p. 42
The rationale for immunity	p. 45
Theory and State immunity	p. 46
Political and legal justification for State immunity	p. 55
Arguments against State immunity viewed from the position of the State	p. 61
Justification for the restrictive doctrine of immunity	p. 64
State Immunity and Jurisdiction: Immunity from the Civil and Criminal Jurisdiction of National Courts	p. 68
The exercise of territorial jurisdiction	p. 69
The relationship of immunity to jurisdiction	p. 74
The distinction into civil and criminal jurisdiction	p. 78
Criminal jurisdiction of the forum State in relation to a foreign State	p. 87
Conclusion	p. 99
State Immunity as a Personal Plea, Distinguished from Act of State and Non-justiciability	p. 100
Status or subject-matter as the basis of the plea of immunity	p. 100
English law of act of state and non-justiciability	p. 112
Conclusion	p. 136
State Immunity for Acts in Violation of International law	p. 139
State responsibility and diplomatic protection	p. 142
The relation of State responsibility to State immunity	p. 145
Arguments against State immunity from the position of the individual	p. 147
The 2004 UN Convention on Jurisdictional Immunities of States and their Property: An Introduction	p. 167
The Sources of the Law of State Immunity
A Review of the Sources: Treaties and Projects for Codification	p. 173
Sources of the law of State immunity	p. 174
Treaty practice as a source	p. 175
Projects for codification by governmental and non-governmental bodies	p. 194
The Restrictive Doctrine of State Immunity: Its Recognition in State Practice	p. 201
Early development	p. 201
The formulation of a general rule of immunity of the State	p. 204
Summary	p. 235
English Law: The UK State Immunity Act 1978	p. 237
Status	p. 237
General structure of the UK State Immunity Act 1978	p. 245
Definition of the foreign State	p. 248
Waiver	p. 261
The exceptions to immunity: Non-immune commercial activities	p. 267
English law relating to immunity from execution of the State and its property	p. 290
The prohibition on all other enforcement measures except with written consent	p. 293
English law: procedure	p. 302
The Civil Procedure Rules	p. 302
Proof of the status of a foreign State or government	p. 303
Commencement of proceedings against a foreign State	p. 306
US law: the Foreign Sovereign Immunities Act 1976	p. 317
Immunity from adjudication: the Foreign Sovereign Immunities Act 1976	p. 317
Amendment of the FSIA	p. 355
Immunity from execution of the State and its property	p. 366
Concluding remarks	p. 371
The 2004 UN Convention on Jurisdictional Immunities of States and their Property: General Aspects	p. 373
Legislative history: the ILC's work and its consideration in the United Nations	p. 374
Status of the Convention	p. 380
Interpretation of the Convention	p. 383
Structure of the Convention	p. 386
The general rule of immunity in the Convention	p. 391
Conclusion	p. 412
The Current International Law of State Immunity
Introduction	p. 415
The Definitionof the Foreign State	p. 418
External attributes as an independent and sovereign State	p. 419
Internal attributes of the State	p. 426
The Consent of the Foreign State, Express and Implied: Waiver and the Arbitration Exception	p. 477
Introduction	p. 477
Counter-claims: matters covered by waiver	p. 495
Waiver and the arbitration exception	p. 495
Exceptions to State Immunity: The Concept of Commerciality	p. 502
The distinction between public and private acts in the restrictive doctrine of State immunity	p. 502
Evaluation of the restrictive doctrine	p. 530
The Commercial and other Exceptions to State Immunity	p. 533
The exceptions to immunity from adjudication in the UN convention	p. 533
The exception for commercial transactions	p. 534
The interpretative provision	p. 537
The exception for employment contracts	p. 547
State practice in support of the exception to immunity for contracts of employment	p. 550
The exception for employment contracts	p. 551
The exception for infringement of intellectual property rights	p. 563
Participation in companies or other collective bodies	p. 565
Ships owned or operated by a State	p. 567
The exception for personal injuries and tangible property	p. 569
The exception for immovables located in the territory of the forum State, succession, administration of estates	p. 591
State Immunity from Execution	p. 599
The regime of immunity from execution	p. 600
A historical account of the treatment of immunity from execution in national courts	p. 604
Immunity from execution in the UN Convention	p. 609
The structure of the UN Convention's articles on immunity from execution	p. 615
The general rule	p. 630
The categories of State property generally regarded as immune	p. 634
Conclusion and future trends	p. 653
Other Immunities
Heads of State, Diplomats and the Diplomatic Mission, Armed Forces, and International Organizations	p. 665
Introduction	p. 665
Heads of State	p. 667
Diplomats and the diplomatic mission	p. 700
Consular immunity: special missions	p. 716
Armed Forces	p. 717
International organizations	p. 724
Conclusions
Conclusions and Future Models	p. 737
UN General Assembly Resolution 59/38 of 16 December 2004	p. 753
Annex: UN Convention on Jurisdictional Immunities of States and their Property	p. 755
Sixth Committee Summary Record of the 13th Meeting, 59th Session of General Assembly, 25 October 2004	p. 769
Bibliography	p. 773
Index	p. 787
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