The Law of State Immunity

by Fox, Hazel

• ISBN13: 9780199270996
• ISBN10: 0199270996
• Format: Paperback
• Copyright: 2004-05-20
• Publisher: Oxford University Press

Summary

This book examines the controversial doctrine of state immunity which bars a national court from adjudicating or enforcing claims against foreign States. State practice, particularly as evidenced in English and US courts, the proposals of the International Law Commission and recent challenges before international tribunals are analysed to give an indepth up-to-date account of the doctrine in current international law.

Author Biography

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

Table of Contents

Table of Cases	xliii
Introduction	1	(1)
The plea as one of mixed international and municipal law	1	(1)
The functions which State immunity serves	1	(1)
Three different phases of State immunity	2	(1)
The sources of the law of State immunity	3	(1)
The third postmodern phase of State immunity	4	(1)
Challenges to the retention of a plea of State immunity for acts in exercise of sovereign immunity	4	(1)
Challenges to the retention of State immunity for acts contrary to international law	5	(1)
Immunity from execution	6	(1)
State immunity as a case study of the structure of international law	7	(4)
PART I OVERVIEW AND GENERAL PRINCIPLES
The Institution of Proceedings and the Nature of the Plea of State Immunity	11	(12)
The institution of proceedings	11	(3)
The different responses of the English courts with regard to proceedings relating to the act of a foreign State or its agents	14	(2)
Outline of the plea of State immunity	16	(7)
The Concept of the State and the Justification for State Immunity	23	(17)
The concept of the State	23	(2)
Postmodernism and the concept of the State	25	(3)
The rationale for immunity	28	(5)
The arguments against State immunity viewed from the position of the State	33	(3)
Justification for the restrictive doctrine of immunity	36	(4)
Theories relating to State Immunity and the Concept of Jurisdiction	40	(27)
Theory and State immunity	40	(11)
The concept of jurisdiction and the doctrine of State immunity	51	(13)
Conclusion	64	(3)
PART II THE SOURCES OF THE LAW OF STATE IMMUNITY
Treaty Practice, Projects for Codification, and Municipal Law as Sources: The Development of the Restrictive Doctrine	67	(57)
State practice as evidence of customary international law relating to State immunity	68	(6)
The applicable law by which to determine State immunity	74	(3)
Treaty practice as a source of State immunity law	77	(17)
The European Convention on State Immunity 1972	94	(6)
National legislation and decisions of national courts as evidence of customary international law	100	(1)
The development of the restrictive doctrine of State immunity in common law countries	101	(17)
The development of the restrictive doctrine of State immunity in civil law countries	118	(6)
Current State Practice: English Law, US Law, and the ILC 1991 Draft on Jurisdictional Immunities of States and their Property	124	(133)
A survey of the current position relating to State immunity	124	(4)
UK State Immunity Act 1978	128	(55)
US law of State immunity: before and after the Foreign Sovereign Immunities Act 1976	183	(33)
The 1991 Draft of the International Law Commission on the Jurisdictional Immunities of States and their Property	216	(41)
PART III THE CURRENT INTERNATIONAL LAW
Accepted and Controversial Aspects of the Rules Relating to State Immunity and the Role of Consent of the Foreign State	257	(15)
The current international law	257	(1)
A general survey of the current international law relating to State immunity	258	(4)
Consent express and implied: waiver and the arbitration exception	262	(10)
The Exceptions to State Immunity	272	(51)
The commercial exception	272	(31)
The exception for infringement of intellectual property rights	303	(1)
The exception for employment contracts	303	(6)
The exception for personal injuries and tangible property	309	(12)
Conclusion	321	(2)
The Definition of the Foreign State	323	(45)
External attributes as an independent and sovereign State	324	(6)
Internal attributes of the State	330	(38)
Immunity from Execution	368	(53)
Overview of enforcement measures	369	(6)
English law relating to immunity from execution of the State and its property	375	(8)
US law relating to immunity from execution of the State and its property	383	(5)
The development of a restrictive doctrine of immunity from execution of property of the State	388	(13)
Problems relating to a restricted rule of immunity from execution	401	(10)
Future models	411	(10)
PART IV INTERNATIONAL IMMUNITIES OTHER THAN STATE IMMUNITY
Heads of State, Diplomats and the Diplomatic Mission, Armed Forces, and International Organizations	421	(56)
Introduction	421	(1)
Heads of State	421	(5)
Sources of law	426	(1)
The rationale for immunities of a head of State	426	(1)
The position of head of State in international law	427	(6)
Applicable law	433	(4)
Immunities of the head of State	437	(11)
Diplomats and the Diplomatic Mission	448	(13)
Armed forces	461	(6)
International organizations	467	(10)
PART V CURRENT AND FUTURE PROBLEMS
State Immunity as a Personal Plea, Distinguished from the Doctrines of Act of State and Non-justiciability	477	(26)
Status of the defendant or subject-matter of the dispute as the basis of the plea	477	(4)
Act of State	481	(8)
Non-justiciability	489	(14)
State Immunity from Criminal Jurisdiction: The Answerability of State Officials for the Commission of International Crimes	503	(14)
The classical rule	503	(2)
Criminal jurisdiction of the forum State over a foreign State	505	(4)
Position of the official: non-answerability in municipal law	509	(6)
Conclusion	515	(2)
Immunity for Acts Unlawful in International Law: The Exhaustion of Local Remedies	517	(24)
Current State practice relating to an exception to State immunity for acts contrary to international law	518	(2)
Exhaustion of local remedies	520	(3)
The concepts of jus cogens and universal jurisdiction	523	(6)
The European Court of Human Rights	529	(1)
Challenge to the doctrine of State immunity from the individual's point of view	530	(10)
Conclusion	540	(1)
Conclusions and Future Models	541	(16)
How the issues have been presented in this book	541	(2)
The relevance of the State as a source of responsibility and accountability	543	(6)
Overall assessment of the value of the plea of State immunity	549	(1)
Future models	549	(8)
Bibliography	557	(6)
Index	563