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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 Judgments 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 Constitutional 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, including: 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.
Hazel Fox, QC, Barrister, Grays Inn,Philippa Webb, Lecturer in Law, King's College London
Lady Fox CMG, QC (Hazel), Barrister, formerly Director of the British Institute of International and Comparative Law and General Editor of the International and Comparative Law Quarterly; member of the Institut de droit international.
Dr Philippa Webb, LLM, JSD, Yale, Lecturer at King's College London, former Special Assistant to ICJ President Rosalyn Higgins DBE QC, author of International Judicial Integration and Fragmentation (OUP, 2013).
Table of Contents
Part I: General Concepts
1. The Institution of Proceedings and the Nature of the Plea of State Immunity
2. The Three Phases of the Concept of State Immunity
3. Act of State and Non-Justiciability Distinguished from State Immunity in Proceedings relating to a Foreign State
4. State Immunity and Jurisdiction: Immunity from the Civil and Criminal Jurisdiction of National Courts
5. The Relationship of State Immunity to Other Immunities
Part II: The Sources of the Law of State Immunity
6. A Review of the Sources: Treaties and Projects for Codification
7. The Restrictive Doctrine of State Immunity: Its Recognition in State Practice
8. English Law: The UK State Immunity Act 1978
9. US Law: The Foreign Sovereign Immunities Act 1976
10. The 2004 UN Convention on Jurisdictional Immunities of States and their Property: General Aspects
Part III: The Current International Law of State Immunity
11. The Definition of the Foreign State
12. The Consent of the Foreign State, Express and Implied: Waiver and the Arbitration Exception
13. Exceptions to State Immunity: The Concept of Commerciality
14. Immunity from Adjudication: The Commercial and Related Exceptions to State Immunity
15. Immunity from Adjudication: The Exception for Personal Injuries and Jurisdiction over Acts in Violation of International Law
16. State Immunity from Enforcement
Part IV: Conclusions
17. Conclusions and Future Models
Appendix 1: UN General Assembly Resolution 59/38 of 16 December 2002
Appendix 2: Annex: UN Convention on Jurisdictional Immunities of States and their Property
Appendix 3: Sixth Committee Summary Record of the 13th Meeting, 59th Session of General Assembly, 25 October 2004