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International Law Sovereign Immunity
by
Xiaodong Yang

Introduction

Sovereign immunity, or state immunity, is a principle of customary international law, by virtue of which one sovereign state cannot be sued before the courts of another sovereign state without its consent. Put in another way, a sovereign state is exempt from the jurisdiction of foreign national courts. Thus, the question of immunity is at the same time a question of jurisdiction: only when the court already has jurisdiction will it become meaningful to speak of immunity or exemption from it. For this reason, sovereign immunity is also referred to as “jurisdictional immunity” or “immunity from jurisdiction.” Because different types of legal proceedings may be brought against foreign states, sometimes courts find it necessary to refer to jurisdictional immunities of states. In history, the words “exterritoriality” and “extraterritoriality” were also used in this sense. The current law of state immunity has developed predominantly as a result of cases decided by national courts in legal proceedings against foreign states. Doctrinal debates among the scholars are of much later occurrence and consist mainly of comments on decided cases. The fact that the law of state immunity is primarily judge-made law gives judicial decisions a prominent position among the possible sources of international law as contemplated by Article 38 (1) of the Statute of the International Court of Justice; instead of being a “subsidiary means for the determination of rules of law,” they are now a main source of legal rules. This feature of the law also shapes and determines the contours of a research guide on sovereign immunity. As far as possible, the leading cases in the field must be introduced first, so as to provide a firsthand view of the law and to place the relevant doctrinal debate in its proper context.

General Overviews

The convenient place to start, so far as the relatively modern developments are concerned, is Lauterpacht 1951, which seeks to offer a doctrinal exploration in the light of judicial practice of a number of states during the early part of the 20th century. This set the pattern of the scholarly exposition throughout the history of the law of state immunity. Sucharitkul 1959 was the most important work to appear and argue decidedly in favor of restrictive immunity, at a crucial juncture where the absolutist and the restrictivist camps were of equal strength. The defense of restrictive immunity remained the central concern of the academic works published before the end of the 1980s. Badr 1984 offers a typical justification for the transition from absolute to restrictive immunity. Starting from Schreuer 1988, however, leading writers no longer find it necessary to engage in such a defense but instead concentrate on how restrictive immunity is or should be given effect in practice. Schreuer 1988 thus simply assumes restrictive immunity and discusses the question of immunity along the lines of the pressing issues facing the practitioners. Bankas 2005 discusses a selection of issues based on selection of cases. As a comprehensive summing-up of the developments so far, Fox 2008 gives a good indication of what issues and aspects of state immunity are now facing the student in this field. The book starts with the theoretical bases of state immunity and then conducts a detailed analysis of such practical issues as commercial activity and other exceptions to immunity, express and implied waiver of immunity, and immunity from execution. Finally, the book discusses the extension of state immunity to heads of state, diplomats, and armed forces. Gong 2005 follows a similar pattern and discuses both historical and current issues. A more theory-oriented, rather than case-based, work is Cosnard 1996. The central theme of the book is to demonstrate that state immunity is an entitlement under international law, derived from sovereign equality. Immunity is seen as a “privilege of exemption” that provides protection to the––defendant––state; for this reason one-quarter of the book is devoted to the “beneficiaries of immunity” (Part 1, Title 2), including persons and organs of the state. The book sheds much light on the conceptualization of the notion of statehood and will be of considerable value to the academic researcher.

  • Badr, Gamal Moursi. State Immunity: An Analytical and Prognostic View. The Hague and Boston: Martinus Nijhoff, 1984.

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    Defends the restrictive immunity doctrine. Traces the evolution of the law and discusses the distinction between immune and nonimmune acts of foreign states. It then conducts an ingenious rereading of the case law and argues that even those apparently absolutist cases in fact support the restrictive doctrine.

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  • Bankas, Ernest K. The State Immunity Controversy in International Law: Private Suits against Sovereign States in Domestic Courts. Berlin and Heidelberg, Germany: Springer, 2005.

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    Discusses the origins of absolute immunity, subsequent development of restrictive immunity, possible justifications for immunity, and some other issues, mainly on the basis of selected UK and US case law. Of particular interest are two chapters (chapters 5 and 6) on the position of African states on sovereign immunity.

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  • Cosnard, Michel. La soumission des États aux tribunaux internes: Face à la théorie des immunités des États. Paris: Éditions A. Pedone, 1996.

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    Views state immunity as an entitlement that is derived from sovereign equality and which protects every state against possible encroachments by the exercise of jurisdiction by foreign national courts.

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  • Fox, Hazel. The Law of State Immunity. 2d ed. Oxford: Oxford University Press, 2008.

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    By far the most extensive work published in the English language, this widely acclaimed and oft-cited work provides a well-documented, in-depth, and critical analysis of all the issues, both theoretical and practical, of state immunity in current international law.

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  • Gong, Renren. A Comparative Study of the Question of State Immunity. 2d ed. Beijing: Beijing University Press 2005.

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    The most authoritative and widely cited work in the Chinese language. This exhaustive, lucid and insightful book critically analyses, from a historical and comparative perspective, the core doctrinal and practical issues of state immunity, as well as the practice of China. The discussion on the historical evolution is particularly illuminating. First published in 1994.

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  • Lauterpacht, Hersch. “The Problem of Jurisdictional Immunities of Foreign States.” British Year Book of International Law 28 (1951): 220–272.

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    This article explores the theoretical underpinnings of sovereign immunity and calls for a complete abolition of immunity, by way of an international agreement. Of significance is that the conclusions are based on a survey of judicial practice in various states, gathered in a long appendix (two-fifths of the article).

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  • Schreuer, Christoph H. State Immunity: Some Recent Developments. Cambridge, UK: Grotius, 1988.

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    A practitioner-oriented work, it has remained a major work in the field and is often cited by courts. The analysis is chiefly based on the then-up-to-date case law. The structure, centering on practical issues rather than theoretical controversy, is the most easily navigable.

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  • Sucharitkul, Sompong. State Immunities and Trading Activities in International Law. London: Stevens & Sons, 1959.

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    The author rightly reasoned that restrictive immunity was to be the future law, adducing abundant evidence to prove this point. Much of the material dealt with herein is now of historical interest only, but the superbly well-presented and well-documented analysis still has much to offer to today’s researchers.

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Collection of Materials

The diversity of the sources of the law of state immunity makes it necessary to collect relevant materials both within and without the remit of the judicial authorities, and these materials include court cases, national legislation, government statements, and deliberations of international organizations. Indeed, repeated compilations of cases and other materials over the years constitute the hallmark of the general endeavor to impose some order on this otherwise chaotic branch of the law. Harvard Law School 1932 was the first major effort at collecting judicial material and making it accessible to English readers. The final result of the research appears in the form of a draft convention along restrictive lines. The draft convention is accompanied by detailed article-by-article commentary, which collected and translated a great number of case reports from various countries, including Austria, Belgium, France, Germany, Italy, and Switzerland, which even today are still not available in English. Next comes the Materials on Jurisdictional Immunities of States and Their Property (United Nations 1982), prepared by the Codification Division of the UN Office of Legal Affairs in connection with the work of the International Law Commission, on the question of jurisdictional immunities of states and their property; hence the title. The materials, provided by the governments of the UN Member States, include national legislation, decisions of national tribunals, and diplomatic and other official correspondence. It is thus a highly authoritative collection of official material. Given the gigantic amount of material now involved, more recent collections strive at exhaustiveness in particular areas. Dickinson, et al. 2004 is by far the most comprehensive collection of legislative materials on state immunity. Half of the book is devoted to detailed commentaries on the 1976 US Foreign Sovereign Immunities Act and on the 1978 UK State Immunity Act. These commentaries are written from a practitioner’s perspective and referenced with copious citations of cases decided by the courts of these two countries. Complementary to Dickinson, et al. 2004 is Hafner, et al. 2006. The main body of the collection consists of national materials (mainly recent case law) provided by European states, Israel, and Japan. These materials have been collected under a pilot project of the Council of Europe on state practice regarding state immunity. The book contains a substantial “Analytical Report” written jointly by a number of jurists.

  • Dickinson, Andrew, Rae Lindsay, and James P. Loonam, eds. State Immunity: Selected Materials and Commentary. Oxford and New York: Oxford University Press, 2004.

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    By far the most comprehensive collection of legislative materials on state immunity. Collects international treaties, national statutes, and drafts by various bodies. Of particular value are the commentaries on the UK and the US practice, conveniently arranged according to the structure of the respective national statutes.

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  • Hafner, Gerhard, Marcelo G. Kohen, and Susan Breau. State Practice regarding State Immunities. Leiden, The Netherlands, and Boston: Martinus Nijhoff, 2006.

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    Collects mainly continental European material and provides a most comprehensive guide to the judicial practice of the countries other than the United Kingdom and the United States. For this reason Hafner’s collection and Dickinson’s collection (Dickinson, et al. 2004) can be regarded as mutually complementary volumes. Also published and updated from time to time online.

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  • Harvard Law School. “Research in International Law: Competence of Courts in Regard to Foreign States.” American Journal of International Law 26 supp. (1932): 451–738.

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    Based on the work done under the auspices of Harvard University, this research project presented as its final outcome a draft convention (pp. 455–460) restricting the enjoyment of jurisdictional immunities by states before foreign national courts. The translation of non-English cases is particularly useful to English readers.

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  • International Law Commission. “Document A/CN.4/410 and Add. 1–5: Comments and Observations Received from Governments.” Yearbook of the International Law Commission 2.1 (1988): 45–95.

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    Collects comments and observations from around thirty states, with regard to the International Law Commission draft articles on jurisdictional immunities of states and their property. Can be used as a follow-up to Materials on Jurisdictional Immunities of States and Their Property (United Nations 1982).

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  • United Nations. Materials on Jurisdictional Immunities of States and Their Property. United Nations Legislative Series. New York: United Nations, 1982.

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    Collects national legislation, official records, and correspondence from individual states; treaty provisions; decisions of domestic tribunals; and replies to a questionnaire addressed to UN Member States regarding their respective positions on the question of immunity. The official correspondence and the Member States’ replies to the questionnaire are especially valuable.

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Textbooks

What is of special interest is the place a textbook writer assigns to the question of state immunity in the general framework of the book, because this reflects the author’s individual theorization of the notion of sovereign immunity and its rationale and legal basis. Thus, the principled position of Oppenheim’s International Law Jennings and Watts 1992 is that state immunity is a consequence of the equality of states and is a limitation on the sovereignty primarily of the forum state. Shaw 2008 devotes substantial space to the question of immunity but in general adopts the same approach of regarding immunity as correlative and exceptional to jurisdiction. By contrast, in Daillier 2009, the discussion of sovereign immunity is located, not in “Competence of the State,” but in “The Protection of Sovereignty” (emphasis added) (cf. Cassese 2005, “Limitations on State Sovereignty” [emphasis added]). This shows that the authors conceptualize the notion of immunity from the perspective of the defendant state, as a derivative from sovereignty, rather than from the standpoint of the forum state, as an exception to jurisdiction. Brownlie 2008 views sovereign immunity as primarily a question of jurisdictional competence. The heart of the author’s analysis is presented as the “modalities of restrictive immunity” (pp. 332–336), under which heading he lists, on the one hand, “criteria indicative of the incompetence ratione materiae of the legal system of the forum state” and, on the other, “criteria indicative of the competence ratione materiae of the legal system of the forum state.” For easy reference, Aust 2010 is the most convenient place for a student to get a concise notion of the law of state immunity as it currently stands, and the most accessible. No matter how briefly, textbooks normally contain references to the rationale of immunity, exceptions to immunity from adjudication, and the distinction between immunity from suit and immunity from execution. Finally, because the question of state immunity is a question of jurisdiction of domestic courts in cases involving foreign states normally on a par with private individuals, it is also discussed in textbooks of private international law. In the nature of things, private textbooks on international law normally focus on the practice of the state from whose legal system the conflict-of-law rules discussed by the authors emanates. As far as the UK practice is concerned, Collins and Dicey 2006 and Fawcett, et al. 2008 are standard authorities in this respect.

  • Aust, Anthony. Handbook of International Law. 2d ed. Cambridge, UK, and New York: Cambridge University Press, 2010.

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    Discusses the sources of the law; the entities entitled to immunity; exceptions to immunity such as consent, commercial transactions, contracts of employment, and torts (delicts); enforcement; the immunity of visiting forces; and the immunity of heads of state and other senior officials in respect both of civil and criminal proceedings.

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  • Brownlie, Ian. Principles of Public International Law. 7th ed. Oxford: Oxford University Press, 2008.

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    Discusses the distinction between nonjusticiability and immunity, the rationale of immunity, the current legal position, the European Convention, the UK statute, waiver of immunity, the position of political subdivisions and state agencies, attachment and seizure in execution, the 2004 UN Convention, and the relationship between state immunity and human rights.

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  • Cassese, Antonio. International Law. 2d ed. Oxford: Oxford University Press, 2005.

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    Discusses the rationale of immunity, restrictive immunity of foreign states from civil jurisdiction, immunity in employment matters, immunity from execution, immunities of state organs, personal immunities and international crimes, and, in particular, the question whether peremptory rules of international law (jus cogens) bar the application of the rule of immunity.

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  • Collins, Lawrence, and Albert Venn Dicey. Dicey, Morris and Collins on the Conflict of Laws. Vol. 1. 14th ed. London: Sweet & Maxwell, 2006.

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    Discusses the question of state immunity from the perspective of UK civil procedural rules, in particular under the 1978 UK State Immunity Act. See Rule 19, “State Immunity,” pp. 273–279.

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  • Daillier, Patrick. “Mathias Forteau et Alain Pellet.” In Droit international public. 8th ed. By Patrick Daillier, Alain Pellet, and Mathias Forteau, 497–504. Paris: Librarie Générale de Droit et de Jurisprudence, 2009.

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    Discusses three issues: the notion of immunities, immunity from jurisdiction (i.e., adjudication), and immunity from execution.

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  • Fawcett, James, Janeen M. Carruthers, and Peter North. Cheshire, North & Fawcett: Private International Law. 14th ed. Oxford: Oxford University Press, 2008.

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    Discusses the question of state immunity from the perspective of UK civil procedural rules, in particular under the 1978 UK State Immunity Act. See pp. 491–502.

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  • Jennings, Robert, and Arthur Watts, eds. Oppenheim’s International Law. Vol. 1, Part 1, Peace. 9th ed. Harlow, UK: Longman, 1992.

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    The eighth edition is confined to general remarks of a theoretical nature, while this ninth edition has substantially augmented the discussion with reference to relevant case law, national legislation, and treaties, touching upon a number of practical issues of state immunity and focusing specially on the establishment of restrictive immunity. Originally published in 1955.

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  • Shaw, Malcolm N. International Law. 6th ed. Cambridge, UK: Cambridge University Press, 2008.

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    Focuses mainly on the adjudicative aspects of immunity and discusses absolute and restrictive immunity, sovereign and nonsovereign acts, immunity and violations of human rights, commercial acts, contracts of employment, the position of instrumentalities, immunity for government officials, waiver of immunity, prejudgment attachment, and the burden and standard of proof.

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Absolute Immunity

Absolute immunity was the prevailing position of international law during the 19th century and, at least as far as the United Kingdom and the United States are concerned, the better part of the 20th century. It means that a sovereign or sovereign state was absolutely immune from legal proceedings in foreign national courts, regardless of the character of the legal relationship involved and regardless of the nature of the legal proceedings. That is to say, states enjoyed immunity even in respect of commercial or other private-law dealings, and their property, even if used exclusively for commercial purposes, was not subject to judicial enforcement measures. This may sound outrageous in today’s world, with states and their entities and enterprises routinely engaging in commercial, trading, and other private-law activities in foreign territories and commonly owning, possessing, or disposing of commercial property. But at a time when state trading activities were rare and state presence in foreign countries was limited to a few diplomatic or military missions, that was a natural response, considering that a state would normally be engaged in nothing other than a public or governmental activity in the territory of another state. Besides, absolute immunity was never truly absolute: it could be waived by the defendant state, and courts regularly did assume jurisdiction in cases involving local immovable property. Here it is necessary to refer to three leading cases on absolute immunity. The Schooner Exchange v. McFaddon in 1812, involving a warship of the French navy, is widely recognized as the fountainhead of the law on state immunity. Chief Justice Marshall held that, because of the “perfect equality and absolute independence of sovereigns,” every sovereign was under a legal obligation to give up part of its “complete exclusive territorial jurisdiction” in favor of another sovereign that happens to be in the territory of the forum state at the relevant time. What is notable is that immunity in this case was seen as an exception to the territorial jurisdiction of the forum state. In Berizzi Bros. Co. v. The Pesaro in 1926 and Compania Espanola v. The Navemar in 1938, this absolute immunity was extended to foreign state trading vessels. In Compania Naviera Vascongado v. Steamship “Cristina” in 1938, the leading English case on absolute immunity, Lord Atkin, delivering the leading judgment, enunciated two principles under English law concerning foreign sovereigns: first, a foreign sovereign could not be made a party to legal proceedings against his will, and, secondly, the property of the sovereign was not subject to seizure or detention.

  • Berizzi Bros. Co. v. The Pesaro. 271 US 562 (1926).

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    Because The Schooner Exchange involved a foreign warship, it might be asked what would be the position of US law on foreign state-owned commercial or merchant vessels. This case extended the immunity enjoyed by foreign warships to foreign trading vessels.

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    • Compania Espanola v. The Navemar. 303 US 68 (1938).

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      Like The Pesaro, this case also extended immunity to foreign state-owned trading vessels.

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      • Compania Naviera Vascongado v. Steamship “Cristina.” AC 485 (1938).

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        Leading English case on absolute immunity. Held that immunity was equally applicable to the commercial property of a foreign sovereign.

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        • The Schooner Exchange v. McFaddon. 11 US (7 Cranch) 116 (1812).

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          Former owners of a merchant vessel that had been seized by the French navy on the high seas and converted into a warship sought to regain possession of the ship when it entered the port of Philadelphia for repairs as a result of stress of weather at sea. Claim rejected.

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          The Transition from Absolute to Restrictive Immunity

          The transition from absolute to restrictive immunity was initiated by the Belgian and the Italian courts and gathered momentum after World War I, when the Soviet type of states became increasingly frequently engaged in commercial and trading activities abroad, either by the state itself or through establishing trade institutions. The most renowned document in the history of the law of state immunity is perhaps the Tate Letter, so named after its addressor, which marked the shift from absolute to restrictive immunity in the practice of the United States. The most important case in the development of the doctrine of restrictive immunity is undoubtedly the Claim Against the Empire of Iran Case in 1963, which precipitated the transition of the law of state immunity and shaped a great number of subsequent decisions in other states. In this case, the German Federal Constitutional Court conducted a meticulous study of the history of the law of state immunity and of case law from a number of states, as well as works of international organizations, and concluded that unrestricted immunity could no longer be regarded as a rule of customary international law. The UK practice remained for a long time in favor of absolute immunity, until the landmark cases of The Philippine Admiral in 1975 (the very first UK case to apply restrictive immunity), Trendtex Trading Corporation v. Central Bank of Nigeria in 1977, and I Congreso del Partido in 1981 (cited under Nature or Purpose Debate). In I Congreso del Partido, the House of Lords held that restrictive immunity was now the legal position at common law in the United Kingdom, so that state immunity was available only with regard to sovereign acts (acts iure imperii), but not to private acts (acts iure gestionis). At the same time, the UK State Immunity Act was enacted in 1978 and eliminated any remaining uncertainty as to the actual application of the restrictive doctrine to immunity cases. The transition of the law from absolute to restrictive immunity is well documented by scholarly works. Wyllys Allen 1933 is of great seminal value both from a historical and a doctrinal perspective. Sinclair 1980 and Trooboff 1986 are representative of the ethos of the time and rank among the leading pieces of the period. Like Cosnard 1996 (cited under General Overviews), Pingel-Lenuzza 1997 is a theory-oriented work, and its general structure is very much determined by the strong theoretical bent. It constructs a convincing theoretical framework of the law of state immunity and is of great value to the academic researcher.

          • Claim Against the Empire of Iran Case. BVerfGE 16, 27 (1963).

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            A firm in Cologne brought an action against the Iranian Empire, claiming payment for repairs it carried out to the heating system at the Iranian Embassy in Cologne. Claim upheld and immunity denied on the ground that engaging repairs was a commercial or private-law activity.

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          • The Philippine Admiral (The Owners of the Ship “Philippine Admiral” (Philippine Flag) v. Wallem Shipping (Hong Kong) Ltd. and Another). AC 373 (1975 [1977]).

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            Claim for payments for goods and services supplied and damages for a breach of charter party. It was held that absolute immunity was inapplicable to actions in rem against a ship in use for normal commercial purposes, but that absolute theory might still apply to actions in personam.

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            • Pingel-Lenuzza, Isabelle. Les immunités des Etats en droit international. Brussels: Bruylant, 1997.

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              Consists of two main parts: Part 1, “The Emergence of the Rule of Relative Immunity,” and Part 2, “The Consolidation of the Rule of Relative Immunity.” The two titles here exactly sum up the central theme of the book: tracing the development of the law from a historical viewpoint.

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            • Sinclair, Sir Ian. “The Law of Sovereign Immunity: Recent Developments.” Recueil des Cours 167 (1980): 113–284.

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              Discusses the history of the law and codification efforts based on modern Euro-American case law and then-recent national legislation. As is the norm with works published before and during the early 1980s, the core objective is to argue that restrictive immunity should be the prevailing principle.

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            • Tate, Jack B. “Letter of 19 May 1952 from Jack B. Tate, Acting Legal Advisor, US Department of State, to Philip B. Perlman, Acting Attorney General, US Department of Justice.”

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              In this letter the US State Department formally declared that from then onward, in handling cases against foreign states, the State Department would grant immunity to foreign states only with regard to sovereign or public acts (iure imperii), but not with respect to private acts (iure gestionis).

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            • Trendtex Trading Corporation v. Central Bank of Nigeria. QB 529 (1977).

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              Involving a claim on an irrevocable letter of credit issued by the Central Bank of Nigeria in London. It was held that restrictive immunity applied also to actions in personam.

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              • Trooboff, Peter D. “Foreign State Immunity: Emerging Consensus on Principles.” Recueil des Cours 200 (1986): 235–432.

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                The author believes that restrictive immunity was the emerging consensus at the time. Thus, the work starts with the distinction between iure imperii and iure gestionis and discusses various exceptions to immunity, the issue of prejudgment attachment and execution of judgments, and the enforcement of arbitral awards.

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              • Wyllys Allen, Eleanor. The Position of Foreign States Before National Courts: Chiefly in Continental Europe. New York: Macmillan, 1933.

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                As the title suggests, the book examines the European practice, and its merit consists particularly in the preservation and analysis of judicial decisions, many of which would otherwise have been lost among a sea of national collections. It establishes the basic modus operandi for all subsequent works.

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              The Codification of the Law

              The codification of the law of state immunity has been taking place at two levels: international and national. Even though activities on the international plane may have set the keynote and the pattern for the development, so far the parameters of the law itself (even in the sense of international law) have been determined chiefly by what has been enacted by national legislative bodies.

              Treaties

              The only multilateral treaties in force that deal specifically with the question of immunity are the Brussels Convention and the European Convention on State Immunity. The Brussels Convention subjects state-owned or -operated trading vessels and the states owning or operating them “to the same rules of liability” (Article 1), and to “the same rules concerning the jurisdiction of tribunals, the same legal actions, and the same procedure” as in the case of privately owned merchant vessels (Article 2), while excluding ships of war and other types of government or public ships from its scope of application (Article 3 (1)). The European Convention established a pattern that has been followed by all subsequent legal instruments, whether national or international; that is, a general provision of immunity (Article 15) qualified by a number of exceptions to that immunity (Articles 1–14). The enforcement of judgments, however, is subject to a voluntary (Article 20) or optional (Additional Protocol) regime, whereby the defendant state is expected, as a matter of treaty obligation, to give effect to judgments against it. The convention is accompanied by an explanatory report (Council of Europe 1972) that contains detailed commentary on the text. The most important international convention so far is undoubtedly the UN Convention on Jurisdictional Immunities of States and Their Property, but it is not yet in force. It was drafted by the International Law Commission, whose annual reports to the UN General Assembly, especially those of 1991 and 1999 (International Law Commission 1991, International Law Commission 1999), provide detailed commentary on the articles of the convention. Like the European Convention, it consists of a general principle of immunity (Article 5) subject to a number of exceptions to that immunity (Articles 7–17). It provides a separate immunity from measures of constraint (Articles 18–19), indicating that immunity from enforcement is distinct from immunity from jurisdiction (i.e., adjudication), and it also stipulates that certain categories of state property, such as the property of embassies and central banks, are absolutely immune from enforcement and execution (Article 21). Ever since its conclusion, the UN Convention has been a focal point for the academic discourse on state immunity, and there is now already a vast body of scholarly commentary on it. The writings normally contain a statement of the articles of the convention and a discussion of their background, meaning, and possible scope of application. Hafner and Köhler 2004 and Stewart 2005 are but two prominent examples.

              • “Brussels Convention (International Convention for the Unification of Certain Rules relating to the Immunity of State-Owned Vessels [Brussels, 10 April 1926], and Additional Protocol [Brussels, 24 May 1934]).” League of Nations Treaty Series 176 (8 January 1936): 199, 214.

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                The first international convention based on the principle of restrictive immunity. It denies immunity to state trading vessels and preserves immunity only for warships and other governmental or noncommercial vessels.

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              • Council of Europe. Explanatory Reports on the European Convention on State Immunity and the Additional Protocol. Strasbourg, France: Council of Europe, 1972.

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                Explanatory reports of the draftsmen, containing background information and article-by-article analysis. Authoritative statement on the application and interpretation of these instruments. Available online. Full list––Nos. 74 and 74A.

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              • European Convention on State Immunity. CETS 074 (16 May 1972).

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                So far, the most important international legal instrument in force on the question of foreign state immunity before national courts. As of 2011 it has been ratified by eight states: Austria, Belgium, Cyprus, Germany, Luxembourg, the Netherlands, Switzerland, and the United Kingdom. Portugal has signed but not ratified it. Entry into force 11 June 1976.

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              • Hafner, Gerhard, and Ulrike Köhler. “The United Nations Convention on Jurisdictional Immunities of States and Their Property.” Netherlands Yearbook of International Law 35 (2004): 3–49.

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                Hafner led the UN General Assembly Ad Hoc Committee on Jurisdictional Immunities, which prepared the final stages for the UN Convention. This article gives a good summary of the issues involved and their solutions.

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              • International Law Commission. “Jurisdictional Immunities of States and Their Property.” Yearbook of the International Law Commission II.2 (1991): 12–62.

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                Report of the International Law Commission on the Work of Its Forty-Third Session, A/46/10, Chapter II. The outcome of thirteen years of work of the International Law Commission. Forms the basis of the UN Convention on Jurisdictional Immunities of States and Their Property. With article-by-article commentary.

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              • International Law Commission. “Jurisdictional Immunities of States and Their Property,” and Annex, “Report of the Working Group on Jurisdictional Immunities of States and Their Property.” Yearbook of the International Law Commission II.2 (1999): 127–128, 149–173.

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                Report of the International Law Commission on the Work of Its Fifty-First Session, A/54/10, Chapter VII. Further studies of the International Law Commission, in the light of new developments since the adoption of the Draft Articles in 1991.

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              • Stewart, David P. “The UN Convention on Jurisdictional Immunities of States and Their Property.” American Journal of International Law 99.1 (2005): 194–211.

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                Summarizes and discusses the UN Convention in line with its general structure.

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              • UN General Assembly. UN Convention on Jurisdictional Immunities of States and Their Property. UN Doc. A/RES/59/38 (16 December 2004).

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                Opened for signature by all states from 17 January 2005 until 17 January 2007, not yet in force. The final conclusion of this convention, twenty-six years after the International Law Commission started its work on the topic in 1978, marks the definitive establishment of restrictive immunity as the prevailing legal rule in current international law.

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              National Legislation

              So far, nine states have enacted immunity statutes: Argentina, Australia, Canada, Israel, Pakistan, Singapore, South Africa, the United Kingdom, and the United States. Generally speaking, the Australian, the UK, and the US statutes can provide a good sampling of all the issues and different approaches. The United States Foreign Sovereign Immunities Act of 1976 (FSIA) was the first national statute on sovereign immunity. Like the European Convention, the US FSIA is predicated on a general principle of immunity, which is then restricted by a number of clearly defined exceptions (sec. 1605). It provides two distinct immunities for foreign sovereign states: immunity from jurisdiction (sec. 1604), and immunity from attachment and execution of the property of a foreign state (sec. 1609). The accompanying Legislative History (1976), being the legislators’ own statement on the meaning and scope of application of various terms and provisions in the FSIA, remains the most authoritative interpretation of the law and has had a tremendous impact on the development of the law in the United States. The Third Restatement (American Law Institute 1987) is the most authoritative scholarly commentary on the FSIA, and the most cited in the US courts. Dellapenna 2003 is by far the most exhaustive study of the US law on foreign sovereign immunity, and of the greatest length (970 pages). The purpose of the United Kingdom State Immunity Act of 1978 (SIA) is twofold: to give effect to the 1972 European Convention on State Immunity, to which the United Kingdom is a party, and to supersede the common law on the question of foreign state immunity, which had just turned to restrictive immunity a year earlier. Lewis 1990 provides a concise scholarly commentary on the UK SIA. The Australia Foreign States Immunities Act of 1985 (FSIA) resembles the US and the UK immunity statutes in some respects, while in others it steers a middle course. Australian Law Reform Commission 1984, apart from being a drafter’s statement of the law, is also a superbly well-written and well-referenced academic work, combining meticulous research, rigorous reasoning, and sound practical sense, and in many respects it sheds much light on complicated issues of the law as it stands at the international level. Crawford 1983, written by the world’s leading authority on the question of sovereign immunity, the originator and leading drafter of the Australia FSIA, and Commissioner in Charge of the Australian Law Reform Commission for the drafting of the Australia FSIA, provides an authoritative exposition of the considerations in drafting the statute.

              • American Law Institute. Restatement (Third) of the Foreign Relations Law of the United States. Vol. 1. St. Paul, MN: American Law Institute Publishers, 1987.

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                Takes the form of statute-like sections followed by a “Comment” and “Reporters’ Notes.” Follows the provisions of the FSIA and deals with such issues as the general principle of immunity, claims against state instrumentalities, commercial activity, tort, waiver of immunity, default judgments, and execution or other enforcement measures. Part IV, “Jurisdiction and Judgments”; chapter 5, “Immunity of States from Jurisdiction,” sections 451–460.

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              • Australia Foreign States Immunities Act of 1985. Act No. 196 (16 December 1985).

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                It also provides a general immunity for foreign states subject to certain exceptions, including commercial activity, contracts of employment, personal injury or damage to property, from adjudication and immunity from enforcement and execution, and waiver of immunity.

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              • Australian Law Reform Commission. Foreign State Immunity. Report No. 24. Canberra: Australian Government Publishing Service, 1984.

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                The drafters’ explanation and section-by-section analysis of the Australia FSIA. The most authoritative legislative statement on the meaning and scope of application of the provisions of the Australian statute.

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              • Crawford, James. “A Foreign State Immunities Act for Australia?” Australian Yearbook of International Law 8 (1983): 71–107.

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                This article is the blueprint for the Australian statute and discusses a number of theoretical and practical issues that are still in debate today.

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              • Dellapenna, Joseph W. Suing Foreign Governments and Their Corporations. 2d ed. New York: Transnational Publishers, 2003.

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                Follows the provisions of the FSIA and discusses various practical issues. The discussion is referenced with copious citations of US case law and scholarly writings. A monumental work and a must-have for lawyers practicing in the United States.

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              • Lewis, Charles J. State and Diplomatic Immunity. 3d ed. London and New York: Lloyd’s of London Press, 1990.

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                Commentary on the UK SIA. Follows the structure and provisions of the statute and discusses the definition of state, exceptions to immunity, submission to jurisdiction, and the criteria for distinguishing between acts iure imperii and acts iure gestionis. Uses mainly UK case law.

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              • United Kingdom State Immunity Act of 1978 (20 July 1978).

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                It provides a general immunity for foreign states subject to certain exceptions, including commercial activity, contracts of employment, personal injury or damage to property, immunity from adjudication and from enforcement and execution, and waiver of immunity.

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              • United States Foreign Sovereign Immunities Act of 1976. Public Law 94-583. US Code, Title 28, §§ 1330, 1332, 1391(f), 1441(d), and 1602–1611 (21 October 1976).

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                The FSIA stipulates a general rule of immunity, which is then qualified by a number of exceptions, such as commercial activity, expropriation, immovable property, and noncommercial torts. The legislative history by the US House of Representatives (No. 94-1487, 9 September, 1976, 1976 U.S.C.C.A.N. 6604) provides a background to the statute and contains a detailed section-by-section analysis.

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              Other Codification Efforts

              Most notable are the codification efforts of two leading international learned bodies: the International Law Association (ILA) and the Institut de Droit International (IDI). The Draft Articles for a Convention on State Immunity (International Law Association 1983) (revised in 1994) is heavily influenced by the US Foreign Sovereign Immunities Act of 1976 but also pays deference to the UK State Immunity Act of 1978 (see National Legislation). L’Institut de Droit International 1992, though in substance very much in common with other legal instruments, in its form adopts Brownlie’s (Brownlie 2008, cited under Textbooks) dichotomous formula of providing for immunity and its exceptions in terms of “competence” and “incompetence” (Article 2).

              • International Law Association. “Draft Articles for a Convention on State Immunity.” In Report of the Sixtieth Conference (Montreal). London: International Law Association, 1983.

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                Provides that immunity can be denied in respect of waiver, commercial activity, contracts of employment, immovable property, and tort, among others. See pp. 5 and 325. Revised in 1994 in Report of the Sixty-Sixth Conference (Buenos Aires) (pp. 21 and 452).

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              • L’Institut de Droit International. “Draft, 1991: Contemporary Problems concerning the Immunity of States in Relation to Questions of Jurisdiction and Enforcement, 1991.” Annuaire de l’Institut de Droit International 64.II (1992): 388.

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                In substance similar to the ILA draft (International Law Association 1983).

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              Exceptions to Immunity from Jurisdiction

              Because of the existence of two separate immunities in current law (i.e., immunity from adjudication and immunity from execution), the question of exceptions to immunity from jurisdiction primarily concerns the immunity of a foreign state from the adjudicative power of the court and does not prejudge the possibility of enforcement of the court’s rulings and decisions against either the foreign defendant state or its property. Separate and distinct considerations apply to the process of enforcement and execution. A number of exceptions to the immunity of states before foreign national courts can be found in current legal instruments and case law. While the list may vary from instrument to instrument, and from court to court, there is little dispute concerning the core items, and these include commercial activity, contracts of employment, and personal injury or damage to property. What must be noted, though, is the great diversity in state practice concerning the actual definition of these exceptions and the circumstances in which they apply.

              Commercial Activity

              The term “commercial activity” is in practice used to cover both the general situation in which a foreign state has engaged in some sort of private-law activity and therefore cannot be immune from local jurisdiction, and a specific exception to immunity based on a strictly defined “commercial” activity. It is generally agreed that a contract for the sale or supply of goods or services, and a contract for a loan or other types of financial transaction, are the two most obvious examples of commercial activity. Beyond these, state practice remains unsettled. It is not possible to list more than those commercial activities on which there seems to be a greater degree of consensus, such as leasing of immovable property (e.g., Joseph v. Office of the Consulate General of Nigeria), issuance of government bonds and public debt in foreign countries (e.g., Republic of Argentina v. Weltover, Inc.), issuance of a letter of credit (e.g., Trendtex Trading Corporation v. Central Bank of Nigeria), and the operation of an airline (e.g., In re Air Crash Disaster near Warsaw, Poland on May 9, 1987). Thus, commentators agree that, rather than a single rule or test, it is necessary to resort to a group of criteria. Crawford 1983 is still the most authoritative analysis of the rationale of state immunity and the criteria for distinguishing immune and nonimmune activities both from a doctrinal and a practical point of view. Badr 1984 and Schreuer 1988 likewise propose a list of criteria.

              • Badr, Gamal Moursi. “Proposed Criteria for the Distinction between Public Acts and Private Acts of the Foreign State.” In State Immunity: An Analytical and Prognostic View. By Gamal Moursi Badr, 63–70. The Hague and Boston: Martinus Nijhoff, 1984.

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                Proposes a list of criteria in distinguishing between a public and a private act, including the formation of the act, the participants, the contents, and the sanctions attached.

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              • Crawford, James. “International Law and Foreign Sovereigns: Distinguishing Immune Transactions.” British Year Book of International Law 54.1 (1983): 75–118.

                DOI: 10.1093/bybil/54.1.75Save Citation »Export Citation »E-mail Citation »

                Finds that the distinctions drawn between immune and nonimmune activities are the result not of a single rule or principle but of a balance of principles and considerations. Most importantly, the article proposes a three-step approach: individuation of the activity or transaction, its classification, and then a consideration of jurisdictional requirements.

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              • In re Air Crash Disaster near Warsaw, Poland on May 9, 1987. 716 F.Supp. 84 (E.D.N.Y. 1989).

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                Operation of an airline constitutes a commercial activity for which there is no immunity.

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              • Joseph v. Office of the Consulate General of Nigeria. 830F.2d 1018 (9th Cir. 1987).

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                No immunity with regard to leasing of immovable property in the forum state.

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                • Republic of Argentina v. Weltover, Inc. 504 US 607 (1992).

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                  No immunity where a state issues government bonds and public debt in foreign countries, if the obligations arising under such bonds have a connection with the forum state.

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                  • Schreuer, Christoph H. State Immunity: Some Recent Developments. Hersch Lauterpacht Memorial Lecture Series 8. Cambridge, UK: Grotius, 1988.

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                    See pp. 42–43. Suggests a list of criteria to be considered, including the participants in the activity or transaction, the claimant’s legitimate expectations, whether the contract is typically commercial, whether sovereign prerogative is involved, the legal forms and methods of the transaction, and whether a denial of immunity would involve political implications.

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                  • Trendtex Trading Corporation v. Central Bank of Nigeria. QB 529 (1977).

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                    No immunity if a foreign state entity (here a central bank) is sued for repudiation of a letter of credit payable in the forum state.

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                    Nature or Purpose Debate

                    One crucial point is whether, in deciding whether a particular act is a commercial activity or actum iure gestionis, the judge should take into account only the character or nature of the act, or whether the judge should also consider the sovereign purpose of that act. For example, private parties regularly buy and sell grains, so if a state buys grains on the international market, this must be a commercial activity. But what if the state bought the grains not to make any profit out of reselling them, but to relieve an ongoing famine in the country? If this purpose can be taken into account, then the act of buying grains assumes a distinctly sovereign or public character. This is still a hotly debated issue in current law, and three major positions have emerged: (1) that the court should consider only the nature of the activity, (2) that the court should consider the whole context of the activity (including the purpose of the act), and (3) that in some cases the purpose may be decisive. The Claim against the Empire of Iran Case is undeniably the leading authority on the “nature” test. This test is also enshrined in the United States Foreign Sovereign Immunities Act of 1976 (FSIA) (sec. 1603(d)). According to the US Supreme Court in Republic of Argentina v. Weltover, Inc., the question is not whether the foreign government has acted with a profit motive or with the aim of fulfilling uniquely sovereign objectives. Rather, the issue is whether the government’s particular actions (whatever the motive behind them) are the type of actions by which a private party engages in commerce. At the other end of the spectrum, the Canadian Supreme Court in United States of America v. Public Service Alliance of Canada (re Canada Labour Code) and the Italian Court of Cassation in Borri v. Argentina found the purpose of the act a decisive factor in determining whether that act was sovereign or commercial in character. The 2004 UN Convention retains the purpose test even though, in determining whether a contract or transaction is a commercial transaction, “reference should be made primarily to the nature of the contract or transaction” (Article 2(2)). The established position in UK law, as well as in the law of Australia and New Zealand, is that the whole context of the claim must be taken into account: I Congreso del Partido. However, one can see that such a “context” approach may turn into a veritable “purpose” test in some cases, such as Holland v. Lampen-Wolfe.

                    • Borri v. Argentina. Case No. 6532 (ord.) (27 May 2005).

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                      Italy’s Court of Cassation held that, even though the issuance of bonds by Argentina had an undeniably private-law character, the subsequent extension of the term of payment and consequent failure to fulfill Argentina’s obligations served public purposes. For this reason Argentina was immune from an action for breach of contract.

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                      • Claim Against the Empire of Iran Case. BVerfGE 16, 27 (1963).

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                        Germany’s Federal Constitutional Court opined that the distinction between acts iure imeprii and iure gestionis must be determined by the nature of the transaction or the resulting legal relationships, and not by the motive or purpose of the act. This started the still-raging contention between the so-called “nature” and “purpose” tests.

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                      • Holland v. Lampen-Wolfe. 1 WLR 1573 (2000).

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                        The House of Lords held that the operation of a military base was a sovereign activity, as was, accordingly, the provision of education and training for military personnel at the base, and that, therefore, the publication of a memorandum in the course of the supervision of such provision was itself a sovereign act.

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                        • I Congreso del Partido. 1 AC 244 (1981).

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                          The House of Lords held that, in considering whether the relevant act upon which the claim is based should be considered as governmental or sovereign activity, or as trading or commercial activity, the court must consider the whole context in which the claim against the foreign state is made.

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                        • Republic of Argentina v. Weltover, Inc. 504 US 607 (1992).

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                          The US Supreme Court held that the issuance of bonds was a commercial activity. In the court’s opinion, when a foreign government acts, not as regulator of a market, but in the manner of a private player within it, its acts are “commercial” within the meaning of the FSIA.

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                          • UN General Assembly. UN Convention on Jurisdictional Immunities of States and Their Property. UN Doc. A/RES/59/38 (16 December 2004).

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                            Article 2(2) provides that the “purpose should also be taken into account if the parties to the contract or transaction have so agreed, or if, in the practice of the state of the forum, that purpose is relevant to determining the noncommercial character of the contract or transaction.”

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                          • United States of America v. Public Service Alliance of Canada (re Canada Labour Code). 91 DLR (4th) 449 (1992).

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                            A Canadian trade union applied for certification as bargaining agent for the Canadian civilian workers employed at a US naval base in Canada. Immunity was upheld by Canada’s Supreme Court on the ground that the management and operation of a military base was a sovereign activity, because the military base served a sovereign purpose.

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                            • United States Foreign Sovereign Immunities Act of 1976. Public Law 94-583. US Code, Title 28, §§ 1330, 1332, 1391(f), 1441(d), and 1602–1611 (21 October 1976).

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                              Stipulates that “the commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose” (sec. 1603(d)).

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                            Territorial Connection

                            The territorial connection requirement, namely that in a case against a foreign state the act or legal relationship in question must have some connection with the territory of the forum state, is the most fundamental rule in the law of state immunity, because it is this territorial connection that gives the court a firm basis for jurisdiction. This requirement has been codified in a number of legal instruments, chief among which is the United States Foreign Sovereign Immunities Act of 1976 (FSIA), which stipulates that a foreign state shall not be immune from the jurisdiction of the US courts in any case “in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States” (sec. 1605(a)(2)). Such a territorial nexus requirement has prevented cases from being brought with respect to alleged acts of torture committed abroad: Saudi Arabia v. Nelson, in the absence of a commercial activity on which to base the claim and that has some connection with US territory. For the Swiss courts, it is not enough that a foreign state has engaged in a commercial activity; there must at the same time be a connection between such activity with the Swiss territory. This is often referred to as Binnenbeziehung, “domestic connection.” This requirement was first formulated in Kingdom of Greece v. Julius Bär & Co. and reaffirmed in many cases, such as United Arab Republic v. Mrs. X and Banque Centrale de la République de Turquie v. Weston Compagnie de Finance et d’Investissement SA.

                            • Banque Centrale de la République de Turquie v. Weston Compagnie de Finance et d’Investissement SA. BGE 104 Ia 367 (1978).

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                              Involving attachment orders in connection with a failure to repay a loan that was to have been repaid in Swiss francs at a Swiss bank. The attachment orders were upheld when it was established that the obligation had the necessary connection (Binnenbeziehung) with Swiss territory.

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                              • Kingdom of Greece v. Julius Bär & Co. Arrêts du Tribunal Fédéral Suisse (ATF) 82 I 75 (1956).

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                                Vacated an attachment order on the ground that the necessary connection linking the debt obligation with Swiss territory was absent. Stated that not every private law relationship entered into by a foreign state could give rise to proceedings in Switzerland; that relationship must have some link with Swiss territory.

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                                • Saudi Arabia v. Nelson. 507 US 349 (1993).

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                                  An employee of a Saudi Arabian government-run hospital brought an action against Saudi Arabia and the hospital for injuries arising from his alleged detention and torture in Saudi Arabia. The US Supreme Court dismissed the case on the ground that the plaintiff was not alleging breach of contract, but personal injuries.

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                                  • United Arab Republic v. Mrs X. ATF 86 I 23 (1960).

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                                    In upholding an attachment order, Switzerland’s Federal Tribunal further clarified the territorial nexus requirement, namely that the relationship has its origin in Switzerlandand and is to be performed there, or at least that the debtor has taken certain steps capable of making Switzerland a place of performance.

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                                    • United States Foreign Sovereign Immunities Act of 1976. Public Law 94-583. US Code, Title 28, §§ 1330, 1332, 1391(f), 1441(d), and 1602–1611 (21 October 1976).

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                                      Stipulates that, for a US court to deny immunity to a foreign state, the commercial activity must have occurred in the United States, or have been closely connected with US territory (sec. 1605(a)(2)).

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                                    Contracts of Employment

                                    In some countries, contracts of employment are treated as a separate exception to immunity apart from commercial activity; in others, employment matters are generally decided as a species of acta iure gestionis. Courts have displayed a great diversity in this field and resort to all sorts of tests and considerations, such as the nature of the employment relationship, the position of the employee, the duties and functions of the employee, and the status and functions of the employer. Some courts, such as the US and the Swiss courts (e.g., M v. Arab Republic of Egypt), would emphasize the requirement of a territorial connection between the employment relationship and the forum state, while others, such as the Italian courts, would consider whether the employee can be regarded as fully integrated into the general state apparatus of the employer state. While state practice is generally unanimous that employment within foreign diplomatic missions must be subject to some special considerations and protection, there is no agreement as to how far such protection should reach. Some states, such as the United Kingdom (e.g., Sengupta v. Republic of India), would be willing to immunize almost any employment relationship in an embassy, while others, such as Switzerland, would deny immunity in cases of employment of manual workers such as drivers and gardeners. It is not possible to deduce general rules as to the determination of particular employment relationships, and the same set of facts may be characterized in radically different ways by different courts. This can happen even within the same judicial system. For example, in Barrandon v. United States of America, the plaintiff, who had been employed as a nurse and medical secretary at the US Embassy in Paris, brought an action for wrongful dismissal. At first instance her claim was allowed in part and damages were awarded. Upon remission by the Court of Cassation, the Court of Appeal of Versailles held that the United States was entitled to immunity because Madame Barrandon had performed her functions in the interests of public service. The Court of Cassation, however, held that the tasks performed by Madame Barrandon did not give her any special responsibility for the performance of the public service of the embassy, so that her dismissal constituted an ordinary act of administration (act iure gestionis). Fox 1995 underlines the great diversity of state practice in this field. The same theme of diversity runs through Garnett 1997, Garnett 1998, Pingel 2003, and Yang 2003.

                                    • Barrandon v. United States of America. France, Court of Appeal of Versailles (Social Chambers in Plenary Session) (1995).

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                                      This case illustrates the fact that conflicting determinations can be made of one and the same employment relationship. As the case proceeded through the courts, the work of a nurse was characterized alternately as of a private-law nature, of a sovereign nature, and then again of a private-law nature. See International Law Reports 116: 622 for the 1998 decision of the French Court of Cassation.

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                                      • Fox, Hazel. “Employment Contracts as an Exception to State Immunity: Is All Public Service Immune?” British Year Book of International Law 66 (1995): 97–176.

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                                        Analyzes three models of handling employment cases and concludes that a restrictive theory in its simple form is not workable: both the nature and the purpose of the employment relationship must be considered.

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                                      • Garnett, Richard. “State Immunity in Employment Matters.” International and Comparative Law Quarterly 46.1 (1997): 81–124.

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                                        While noting the diversity of approaches, concludes that there is a discernible trend toward confining immunity to the situation in which a claim is brought by a senior employee at a highly sensitive place of work, such as a diplomatic or military establishment.

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                                      • Garnett, Richard L. “The Perils of Working for a Foreign Government: Foreign Sovereign Immunity and Employment.” California Western International Law Journal 29.1 (1998): 133–173.

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                                        Finds that, in US practice, the territorial location of employment has played a decisive role. Thus, a distinction has been drawn between claims arising from employment that took place in the United States, for which immunity would be denied, and those actions involving work abroad, for which immunity would be retained.

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                                      • M v. Arab Republic of Egypt. ATF 120 II 400 (1994).

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                                        Former chauffeur at the Egyptian Permanent Mission to the United Nations in Geneva brought proceedings claiming arrears of salary, overtime, and holiday pay. Switzerland’s Federal Tribunal denied immunity on two grounds: first, the employment of a chauffeur was a private-law act, and, second, the plaintiff was employed in Geneva.

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                                        • Pingel, Isabelle. “Immunité de juridiction et contrat de travail: Du nouveau.” Journal du droit international 130.4 (2003): 1115–1129.

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                                          In the light of three cases decided by the French, Swiss, and Portuguese Supreme Courts, the article discusses such issues as the basis, the scope, and the beneficiaries of immunity, as well as the criteria for characterizing employment relationships.

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                                        • Sengupta v. Republic of India. Industrial Cases Reports 221 (1983).

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                                          A former clerk at the Indian High Commission in London brought an action for unfair dismissal. The claim was rejected by England’s Employment Appeal Tribunal on the ground that the performance of the applicant’s contract of employment and his dismissal were acts done in pursuance of public functions.

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                                          • Yang, Xiaodong. “State Immunity in the European Court of Human Rights: Reaffirmations and Misconceptions.” British Year Book of International Law 74.1 (2003): 333–408.

                                            DOI: 10.1093/bybil/74.1.333Save Citation »Export Citation »E-mail Citation »

                                            Based on an analysis of case law from major jurisdictions, demonstrates the diversity of approaches of various courts in handling employment cases and the lack of international standards in this area.

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                                          Personal Injury and Damage to Property

                                          For cases involving personal injury or death, or damage to or loss of property, the most important test in current law is not an iure imperii/iure gestionis dichotomy, but the requirement that the tortious act/omission or the injury/damage must be connected with the territory of the forum state. The jurisdiction of the court is based on the injury caused within the territory of the forum state, not on the purported nature or purpose of the act that caused the injury. Where the territorial requirement is not fulfilled, immunity remains intact. Thus, in the Collision with Foreign Government-Owned Motor Car (Austria) Case, the Austrian Supreme Court held that when an embassy car caused a traffic accident, the foreign state must be liable for damages. The fact that the car had carried mail for the US Embassy was irrelevant. In Letelier v. Republic of Chile, the court asserted jurisdiction over political assassination committed in the United States, despite the distinctly sovereign or governmental nature of the act. By contrast, where the tortious act was committed outside the territory of the forum state, immunity has invariably been upheld, as can be seen in such cases as Argentine Republic v. Amerada Hess Shipping Corporation, Al-Adsani v. Government of Kuwait, and Jones v. Ministry of the Interior of the Kingdom of Saudi Arabia. Section 1605A of the United States Foreign Sovereign Immunities Act (FSIA) eliminates the territorial nexus requirement between the tortious act/omission and the forum state and gives US nationals a right of action for “personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act” committed anywhere in the world. But this provision applies only to the so-called “State sponsors of terrorism.” Yang 2003 provides a summary of all these points. Fox 1989 examines the wider issue of the role played by the denial of immunity of foreign states, with regard to tortious liability in relation to the regime of state responsibility under public international law.

                                          • “Al-Adsani v. Government of Kuwait.” International Law Reports 107 (1996): 536.

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                                            The courts refused to exercise jurisdiction over alleged acts of torture committed in Kuwait. The 1996 decision of the Court of Appeal affirming the 1995 decision of the Queen’s Bench Division is reported in International Law Reports 107: 536.

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                                          • Argentine Republic v. Amerada Hess Shipping Corporation. 488 US 428 (1989).

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                                            The court refused to exercise jurisdiction over the destruction of a ship on the high seas.

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                                            • “Collision with Foreign Government-Owned Motor Car (Austria) Case.” International Law Reports 40 (1961): 73.

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                                              Concerning a traffic accident caused by an embassy car. In the court’s opinion, the decisive factor was that, at the time of the accident, the car was using public roads. Traffic accidents create private legal relations between the foreign state and the private individual, on an equal footing.

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                                            • Fox, Hazel. “State Responsibility and Tort Proceedings against a Foreign State in Municipal Courts.” Netherlands Yearbook of International Law 20 (1989): 3–34.

                                              DOI: 10.1017/S0167676800001926Save Citation »Export Citation »E-mail Citation »

                                              Explores the relationship between the public international law regime of state responsibility and the private law remedy of tort, in the light of UK and US case law.

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                                            • Jones v. Ministry of the Interior of the Kingdom of Saudi Arabia. 1 AC 270 (2006).

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                                              The House of Lords rejected a claim concerning alleged acts of torture committed in Saudi Arabia.

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                                              • Letelier v. Republic of Chile. 488F. Supp. 665 (D.D.C. 1980).

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                                                Action brought by the relatives of former Chilean government officials killed in the United States by a car bomb allegedly placed by Chilean intelligence agents. The court rejected the contention that jurisdiction existed only with regard to tortious acts of a “private” or iure gestionis nature.

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                                                • “Section 1605A: General Exceptions to the Jurisdictional Immunity of a Foreign State.” In United States Foreign Sovereign Immunities Act of 1976. Public Law 94-583. US Code, Title 28, §§ 1330, 1332, 1391(f), 1441(d), and 1602–1611 (21 October 1976).

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                                                  Currently the only piece of national legislation that dispenses with the territorial requirement in personal injury cases. This provision applies only to “State sponsors of terrorism,” designated by the US Department of State. Four states are on the list as of 2012: Cuba, Iran, Sudan, and Syria (see online).

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                                                • Yang, Xiaodong. “State Immunity in the European Court of Human Rights: Reaffirmations and Misconceptions.” British Year Book of International Law 74.1 (2003): 333–408.

                                                  DOI: 10.1093/bybil/74.1.333Save Citation »Export Citation »E-mail Citation »

                                                  Discusses the application of the tort exception to immunity under current law, especially the territorial requirement. Also discusses the application of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which later became sec. 1605A of the US FSIA.

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                                                Arbitration Agreements and Arbitral Awards

                                                The currently established position is that an agreement to arbitration constitutes a waiver of immunity from adjudication, giving the courts of the forum state jurisdiction to oversee the enforcement of arbitral awards. On the other hand, given the prevailing principle of the distinction between immunity from adjudication and immunity from enforcement, an arbitral award does not automatically give the court the power to execute on the property of the foreign state defendant, for which a separate indication of waiver of immunity is necessary. The Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSIC Convention, 1965) obligates the contracting states to “recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State” (Article 54), while leaving the question of actual execution to “the law in force in any Contracting State relating to immunity of that State or of any foreign State from execution” (Article 55). Vibhute 1999 and Chamlongrasdr 2007 discuss the issue, on the common basis that consent to arbitrate constitutes a waiver of immunity.

                                                Immunity from Measures of Constraint

                                                There is a general consensus in state practice regarding three principles that have emerged over the years: first, a distinction is drawn between immunity from suit and immunity from execution, so that a loss of immunity at the adjudicative stage does not mean an automatic loss of immunity at the execution stage; second, execution is allowed only on the property used for commercial purposes but not on the property used for sovereign purposes; and, third, certain categories of state property, such as diplomatic property, military property, and central bank property, enjoy absolute immunity from execution. As far as prejudgment attachment is concerned, state practice is not uniform. Some countries, such as the United States and the United Kingdom, impose even more restrictions on prejudgment measures than on execution, while others, especially the civil law countries, apply the same conditions both to pre- and post-judgment measures of constraint. The United States Foreign Sovereign Immunities Act of 1976 (FSIA) and the United Kingdom State Immunity Act of 1978 (SIA), the two earliest pieces of national legislation, contain detailed rules on attachment and execution, which exerted a significant influence on subsequent statutes in other countries. Particular protection has been accorded to bank accounts kept by foreign embassies. The Philippine Embassy Bank Account Case, the leading case on immunity from execution, especially for the case law evolved without national immunity legislation, established two principles. First, forced execution of judgment against a foreign state, on property of that state that is present or situated in the territory of the state of the forum, is inadmissible without the consent of the foreign state, if, at the time of the initiation of the measure of execution, such property serves sovereign purposes of the foreign state. Second, claims against a general current bank account of the embassy of a foreign state that covers the embassy’s costs and expenses are not subject to forced execution. Alcom Ltd. v. Republic of Colombia is in total agreement with the German case. Crawford 1981 is the seminal and authoritative study of the subject and examines the conditions and limitations on measures of enforcement, based on treaty provisions, national statutes, and case law. Asiedu-Akrofi 1990 and Blair 1998 discuss the particular issue concerning the immunity of central banks, while Reinisch 2006 focuses on the European practice.

                                                • Alcom Ltd. v. Republic of Colombia. AC 580 (1984).

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                                                  Held that an embassy’s bank account was one and indivisible and could not therefore be divided into commercial and public uses. Unless the judgment creditor could show that the bank account in question was used solely for commercial purposes, then such an account was immune from attachment.

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                                                  • Asiedu-Akrofi, Derek. “Central Bank Immunity and the Inadequacy of the Restrictive Immunity Approach.” Canadian Yearbook of International Law 28 (1990): 263–307.

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                                                    Discusses central bank immunity, based on the practice of Canada, the United Kingdom, and the United States.

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                                                  • Blair, William. “The Legal Status of Central Bank Investments under English Law.” Cambridge Law Journal 57.2 (1998): 374–390.

                                                    DOI: 10.1017/S0008197398000075Save Citation »Export Citation »E-mail Citation »

                                                    A practice-oriented study of the legal status of foreign central banks under English law. Discusses in particular immunity from execution of the property of foreign central banks.

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                                                  • Crawford, James. “Execution of Judgments and Foreign Sovereign Immunity.” American Journal of International Law 75.4 (1981): 820–869.

                                                    DOI: 10.2307/2201355Save Citation »Export Citation »E-mail Citation »

                                                    Finds that, in general, measures of enforcement and execution are allowed against foreign states and their property but are subject to a number of conditions and limitations, and that execution is frequently subject to separate and distinct considerations apart from those at the adjudicative stage.

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                                                  • Philippine Embassy Bank Account Case. BVerfGE 46, 342 (1977).

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                                                    The court put forward two principles. First, no execution is allowed against foreign state property used for sovereign purposes; second, bank accounts of an embassy enjoy special protection. An abstract danger, rather than a real threat, to the embassy’s ability to discharge its functions will suffice to stop the execution.

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                                                  • Reinisch, August. “European Court Practice concerning State Immunity from Enforcement Measures.” European Journal of International Law 17.4 (2006): 803–836.

                                                    DOI: 10.1093/ejil/chl027Save Citation »Export Citation »E-mail Citation »

                                                    Discusses Continental European practice and “demonstrates the consolidation of a restrictive approach which permits enforcement measures against property clearly serving non-governmental purposes.”

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                                                  • United Kingdom State Immunity Act of 1978 (20 July 1978).

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                                                    Provides that a foreign state cannot be subjected to prejudgment relief, except with a written consent; that execution is permitted only on foreign state property in use or intended for use for commercial purposes; and that the property of a foreign central bank is absolutely immune from enforcement.

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                                                  • United States Foreign Sovereign Immunities Act of 1976. Public Law 94-583. US Code, Title 28, §§ 1330, 1332, 1391(f), 1441(d), and 1602–1611 (21 October 1976).

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                                                    Stipulates that execution is permissible only on foreign state property used for a commercial activity in the United States; that prejudgment attachment can take place only where there is an explicit waiver of immunity; and that the property of a foreign central bank is absolutely immune from execution.

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                                                  State Immunity and Human Rights Violations

                                                  This is where most of the controversy is taking place in the early 21st century. The subject involves a diverse collection of commentators: those working in the field of state immunity, those whose main concern is international human rights protection, and those whose interest lies at the interface of state immunity and human rights. One thus finds here the fastest growing body of literature. Generally speaking, the judicial practice tends to be conservative and repeatedly affirms traditional views on immunity in relation to human rights cases, while most of the revolutionary ideas come from the commentators. Three main issues can be identified: right of access to court, personal immunity or immunities of the officials of the state, and the impact of the notion of jus cogens on the question of immunity.

                                                  Right of Access to Court

                                                  The right of access to court has been increasingly recognized as one of the most fundamental of human rights. Article 6(1) of the European Convention on Human Rights, for example, provides that “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Since immunity means that a foreign state cannot be sued before a national court in respect of a particular subject matter, in a case where immunity is granted there naturally will be no hearing of the case. The question thus arises whether the refusal on the part of the court to hear the case constitutes a denial of right of access to court. Two opposing views can be found in the current discourse. In the three cases on immunity decided in 2001 (Al-Adsani v. United Kingdom, Fogarty v. United Kingdom, and McElhinney v. Ireland), the European Court of Human Rights concluded that grant of immunity did not constitute an unwarrantable restriction of the right of access to court provided by Article 6 of the European Convention on Human Rights. However, scholars may think otherwise, as is illustrated in Pingel 2004.

                                                  • Al-Adsani v. United Kingdom. Application No. 35763/97, European Court of Human Rights (Grand Chamber) (2001).

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                                                    The court held that, as a limitation of the right of access to court, the grant of sovereign immunity to foreign states in this case lay within the margin of appreciation for national courts, pursued the legitimate aim of maintaining friendly relations between states, and was proportionate to the aim.

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                                                    • Fogarty v. United Kingdom. Application No. 37112/97, European Court of Human Rights (Grand Chamber) (2001).

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                                                      Same as in Al-Adsani v. United Kingdom. The European Court of Human Rights concluded that grant of immunity did not constitute an unwarrantable restriction of the right of access to court provided by Article 6 of the European Convention on Human Rights.

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                                                      • McElhinney v. Ireland. Application No. 31253/96, European Court of Human Rights (Grand Chamber) (2001).

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                                                        See also Fogarty v. United Kingdom and Al-Adsani v. United Kingdom.

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                                                        • Pingel, Isabelle, ed. Droit des Immunités et Exigences du Procès Équitable. Paris: Editions Pedone, 2004.

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                                                          The book deals with the relationship between immunity and the right to equitable access to court. This is a collection of rather relaxed symposium discussions and debates on various aspects of state immunity. The consensus of the participants is that immunity and right of access to court are antithetical.

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                                                        Personal Immunity of State Officials

                                                        Since it is relatively easier to sue an individual than a foreign sovereign state, and, more important, given the well-established notion of individual responsibility in international human rights law, it is becoming more and more frequent to bring legal proceedings against foreign state officials, instead of foreign states themselves, for human rights violations. Thus, the question of immunity of state officials has become a central concern for commentators debating this and related issues. Since certain senior officials, such as the head of state, head of government, and the ministry of foreign affairs, are usually regarded as personifying the state, traditional international law affords such individuals a particularly venerable position. They enjoy absolute immunity from criminal proceedings and extensive immunity from civil proceedings while in office, and continue to enjoy that immunity after leaving office for anything done by them in the exercise of their official functions. But such a notion, valid as it may still remain, comes into conflict with some of the fundamental principles of international human rights law, such as the prohibition of acts of torture committed by state officials or under the color of state authority, and the irrelevancy of official positions with regard to individual criminal responsibility for violations of human rights. The Belgian Universal Jurisdiction Law of 1993/1999, which was later twice amended, affords a dramatic example of how difficult it can be to extend the jurisdiction of national courts to offenses committed in foreign countries by foreign nationals against foreign nationals. While Pinochet No. 3 1999 put forward the revolutionary position according to which a former head of state should no longer be immune for acts of torture committed in his term of office, International Court of Justice 2002 can be regarded as reaffirming the traditional position that a former head of state continues to enjoy immunity for anything done by him in his official capacity during his term of office. This issue, especially with regard to the international protection of human rights, has become an increasingly popular topic of contention among scholars. Watts 1994 is the first major study of the immunities of senior state officials and still remains authoritative and relevant in the early 21st century. The draft articles prepared in 2001 by the Institut de Droit International (Verhoeven 2000–2001) basically translate the holding of the Arrest Warrant case into concrete rules. The leading scholarly writings, such as Simbeye 2004, Bantekas 2005, and van Alebeek 2008, analyze the issue mainly from the perspective of international criminal law.

                                                        Jus Cogens and State Immunity

                                                        The notion of jus cogens has been used by human rights lawyers, especially in cases where the alleged violations of human rights took place in foreign territories and between foreign nationals, to argue for a denial of immunity within the framework of current international law on state immunity, which normally requires a territorial connection between the facts of the case and the forum state and does not therefore contain an exception to immunity with regard to human rights violations occurring outside the forum state. The argument is based on the general acceptance that some core norms of international human rights law, such as the prohibition of torture and genocide, have attained the status of jus cogens. In the cases of Siderman de Blake v. Republic of Argentina and Al-Adsani v. Government of Kuwait, for example, it was (unsuccessfully) argued that, because of their nature, jus cogens norms occupy a higher position in the hierarchy of international law norms and supersede the non–jus cogens norm of state immunity, so that wherever a violation of jus cogens human rights norms is involved, immunity is automatically lost. Alternatively, as (unsuccessfully) in Princz v. Federal Republic of Germany, it was suggested that a violation of a jus cogens human rights norm constitutes an implied waiver of immunity before foreign courts. The debate is still going on. Belsky, et al. 1989 was the originator of the waiver argument. Bröhmer 1997 argues that the fact that a jus cogens norm has been violated is enough to give the court jurisdiction, and that no distinction is to be made between civil and criminal jurisdiction. That is, other than the character of the wrongdoing, no jurisdictional nexus with the forum state is required. Caplan 2003 likewise argues that immunity can be overridden by a jus cogens human rights norm, so that the courts of the forum state are free to exercise jurisdiction so long as a violation of jus cogens can be established. While Orakhelashvili 2002 and Orakhelashvili 2006 demonstrate that current case law is inconclusive, Yang 2006 argues that current case law is inimical to the ideas of “override” and “implied waiver.”

                                                        • “Al-Adsani v. Government of Kuwait.” International Law Reports 107 (1996): 536.

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                                                          Held that, since the United Kingdom State Immunity Act of 1978 (SIA) did not provide for jurisdiction over acts of torture committed abroad (in Kuwait), Kuwait must be immune in this case, despite that fact that a jus cogens norm (the prohibition of torture) is engaged. Jus cogens, without more, is not enough to override immunity.

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                                                        • Belsky, Adam C., Mark Merva, and Naomi Roht-Arriaza. “Implied Waiver under the FSIA: A Proposed Exception to Immunity for Violations of Peremptory Norms of International Law.” California Law Review 77.2 (1989): 365–415.

                                                          DOI: 10.2307/3480608Save Citation »Export Citation »E-mail Citation »

                                                          The article argues that a violation of a jus cogens norm of international human rights law constitutes an implied waiver of sovereign immunity.

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                                                        • Bröhmer, Jürgen. State Immunity and the Violation of Human Rights. The Hague and Boston: Martinus Nijhoff, 1997.

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                                                          The central thesis of this book is that a foreign state shall not enjoy immunity for any act or omission that constitutes a violation of international human rights norms that have attained the status of jus cogens, such as the prohibition of torture and extrajudicial killing.

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                                                        • Caplan, Lee M. “State Immunity, Human Rights and Jus Cogens: A Critique of the Normative Hierarchy Theory.” American Journal of International Law 97.4 (2003): 741–781.

                                                          DOI: 10.2307/3133679Save Citation »Export Citation »E-mail Citation »

                                                          Argues that states enjoy immunity from foreign national courts only as a privilege that can be withdrawn as the forum state deems necessary. Thus, immunity can be overridden by a jus cogens human rights norm.

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                                                        • Orakhelashvili, Alexander. “State Immunity and International Public Order.” German Yearbook of International Law 45 (2002): 227–267.

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                                                          The author thinks that there are many important issues, such as the hierarchy of international law norms and universal jurisdiction based on jus cogens, which have not been fully addressed by the courts. Current case law, therefore, cannot be considered as conclusive of the ongoing debate in this regard.

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                                                        • Orakhelashvili, Alexander. “State Immunity and International Public Order Revisited.” German Yearbook of International Law 49 (2006): 327–365.

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                                                          Further develops the thesis in Orakhelashvili 2002.

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                                                        • Princz v. Federal Republic of Germany. 26 F.3d 1166 (D.C. Cir. 1994).

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                                                          The court rejected the “implied waiver” argument, opining that an implied waiver depended upon the foreign state’s having at some point indicated its amenability to suit. Where no such indication could be found, the foreign state remained immune, even where a violation of jus cogens norms had been committed.

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                                                          • Siderman de Blake v. Republic of Argentina. 965 F.2d 699 (9th Cir. 1992).

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                                                            The court rejected the argument that jus cogens could “override” immunity, and refused to assert jurisdiction over acts of torture committed in Argentina. Where no basis of jurisdiction existed under the Foreign Sovereign Immunities Act (FSIA), immunity must be upheld, even though there might have been a violation of jus cogens.

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                                                            • Yang, Xiaodong. “Jus Cogens and State Immunity.” New Zealand Yearbook of International Law 3 (2006): 131–179.

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                                                              Argues that current case law does not support the “override,” or the “implied waiver” theory.

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                                                            LAST MODIFIED: 03/23/2012

                                                            DOI: 10.1093/OBO/9780199796953-0018

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