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The Law of State Immunity,9780199647064
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The Law of State Immunity

by ;
Edition:
3rd
ISBN13:

9780199647064

ISBN10:
0199647062
Format:
Hardcover
Pub. Date:
10/15/2013
Publisher(s):
Oxford University Press, USA
List Price: $277.33

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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. 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.

Table of Contents


Introduction
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


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