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In Defence of State Immunity: Why the UN: Convention on State Immunity is Important

Published online by Cambridge University Press:  17 January 2008

Hazel Fox
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Extract

The Convention on State Immunity adopted by the UN General Assembly in 2004 represents in treaty form a finished product of some 22 years of work 1 It indicates a consensus of State support for the restrictive doctrine of State immunity in its application to civil proceedings relating to commercial matters in national courts. It is a considerable achievement from the view point of the specialist lawyers and diplomats who have steered the project to UN endorsement.

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 55 , Issue 2 , April 2006 , pp. 399 - 406
Copyright
Copyright © British Institute of International and Comparative Law 2006

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References

1 UNGA Res 59/38 (2005), adopted without a vote. Elaboration of the Convention took 12 years in the International Law Commission, leading to the 1991 Drafts Articles, and a further ten years of discussions in the UNGA 6th Committee and its working parties.

2 The UK's transitional provisions were somewhat less sweeping. In addition to barring the statute's application to proceedings instituted before its entry into force, the UK Act did not apply to any submission to jurisdiction or consent to enforcement prior to that date or to the application of any exception to immunity for a transaction or contract of employment entered into prior to the Act's entry into force; thus common law rules continued to govern these matters.

3 States would seem free to grant larger immunities than those laid down in the UN Convention provided they are in conformity with international law and that the national law of the former State law permits such a denial jurisdiction, see Vancouver Resolution on Immunities from Jurisdiction and Execution of Heads of State and of Government in International Law, Art 9, ADI 69 (2000–1) 743, 749; an over-wide immunity afforded to commercial transactions might lead to a challenge as a disproportionate restriction on the procedural right of access to court. See Fogarty v UK (2002) 34 EHRR 12.123 ILR 54; Mc Elhinney v Ireland and UK(2000) 29 EHRR CD 214, 123 ILR 73.

4 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo/Belgium) Judgment Preliminary Objections and Merits; 14 Feb 2002 ICJ Reports 2002, para 39.

5 (n 4) Joint separate opinion para 3.

6 The recent 2005 Krakow Resolution of the Institut de droit international on universal criminal jurisdiction is recommended for consideration; rather than accepting the exercise of such jurisdiction over all violations of human rights, this Resolution requires the presence of the accused within the forum territory and limits the exercise of such universal criminal jurisdiction to international crimes recognized by international law or grave violations of international humanitarian law.

7 Preliminary Report by Mr Ogiso A/CN.4/415 ILC YB 1988 II pt 1, 109 paras 118–19 of the recommendations by the Special Rapporteur to Art 11. Commentary to 1991 draft articles, Art 10, paras 3–5.

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

9 AJIL 97 (2003) 741, 755.CrossRefGoogle Scholar

10 Republic of Austria v Altmann US Supreme Ct (4 June 2004).

11 Spanish Govt v Lambege and Pujot (22 Jan 1849) Sirey 1830, I, 81, 93; Dalloz 1848, I, 5.

12 Judgment No 5044 of 11 Mar 2004, registered 11 Mar 2005 (2004) 87 Rivista diritto internazionale 539.

13 I Congreso del Partido [1983] 1 AC 244, [1981] 2 All ER 1064, 1070, 64 ILR 307.

14 Al-Adsani v UK ECHR (2002) 34 EHRR 111, para 56, 123 ILR 24.

15 Sealing ‘“State sponsors of terrorism” is a question not an answer: the Terrorism amendment to the FSIA makes less sense now than it did before 9/11’ (2003) 38 Texas Int L J 103, 105.

16 Emergency Supplemental Appropriations Act, 16 Apr 2003 and the Presidential determination of 7 May 2003; Murphy ‘Terrorist-State litigation in 2000–2003’ (2003) AJIL 97 966, 970.

17 In so far as the rules set forth in the Convention on jurisdictional immunities of States and their property operate under international law independently of the present Convention, Art 4 (non-retroactivity of the Convention) preserves their application.

18 Resolution of the Institut de droit at its Basel session, 1991, ADI 1992 64-I, 221.

19 Harris, ‘Stays of Proceedings and the Brussels Convention’, and Cuniberti ‘Forum non Conveniens and the Brussels Convention’ in (2005) 54 International and Comparative Law Quarterly 933 and 973 respectively.CrossRefGoogle Scholar

20 Charnovitz reviewing Wolf, MartinWhy Globalization Works in (2005) 99 AJIL 729.Google Scholar