¹ The Charter of Paris for a new Europe, 21 November 1990, set out criteria for the political legitimacy for States which were accepted by the new States emerging in the territories of the former Yugoslavia and the Soviet Union: EC Foreign Ministers, ‘Declaration on the Conditions of Recognition for new States in Eastern Europe and the Soviet Union 16 Dec. 1991’. Franck, ‘The Emerging Right to Democratic Government’ (1992) 86 AJIL 46 at 90–1.

² Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res 2625 (XXV) of 24 October 1970.

³ Brierly, Law of Nations (7th edn, 2012), 41–2, 68–76; Crawford, The Creation of States in International Law (2nd edn, 2007).

⁴ Publications of the League of Nations, V: Legal, 1927, Vol 9 No 11 Competence of the Courts in regard to Foreign States, reproduced in (1928) 22 AJIL special supplement, 117 at 118.

⁵ Spanish Govt v Lambege and Pujot 22 January 1849, Sirey, receuil general des lois et des arrets 1849 1, 81; Receuil Dalloz, 1849, 1, 5.

⁶ X v Govt of Czechoslovakia Austrian Supreme Court 19 May 1950, Materials on Jurisdictional Immunities (1982) ST/Leg/Ser.B/20, p 1183, supporting case reference omitted.

⁷ Empire of Iran, German Federal Constitutional Court, 30 April 1963; Legal Materials 282; 45 ILR 57.

⁸ Al-Adsani v UK (2002) 24 EHRR 11, para 54.

⁹ [1880] 5 Prob Div 197.

¹⁰ Crawford and Koskenniemi, The Cambridge Companion to International Law (2012): Crawford; ‘Sovereignty as a legal value’, 121 et seq; and Knop, ‘Statehood, territory, people, government’, 95 describing States as the best stocked normative reservoir in ‘the repository of ideals of the international system that are closest to being realised in the context of domestic states’.

¹¹ 11 US 116 (1812); (1812) Cranch 116 at 136. Hersch Lauterpacht in his criticism of The Schooner Exchange demolishes reliance on Marshall CJ’s judgment for support of the absolute doctrine by asserting: ‘It is clear from the language of that decision that the governing, the basic principle is not the immunity of the foreign state but the full jurisdiction of the territorial state and that any immunity of that foreign state must be traced to a waiver—express or implied—of its sovereignty of the territorial state and must not readily be assumed’. But he misleadingly suggests that the territorial state is under no compulsion to do so. Marshall CJ was of the view that international law compelled the court to construe an implied waiver of territorial jurisdiction in favour of a foreign State and that only a political decision by the executive in derogation of the normal requirements of international law would oblige the court to withdraw the immunity deriving from such implied waiver. See Ch 3 for the views of Koskenniemi and Kennedy on this case.

¹² Pellet, ‘The Definition of Responsibility in International Law’ in Crawford, Pellet, and Olleson (eds), Law of International Responsibility (2010), 4.

¹³ ILC’s Draft Articles on Diplomatic Protection adopted by the ILC 58th Session (2006) ILC Report, Doc A/61/10, p 24, Commentary to Article 14, para 5.

¹⁴ ‘Local remedies do not include remedies whose “purpose is to obtain a favour and not to vindicate a right” nor do they include remedies of grace unless they constitute an essential pre-requisite for the admissibility of subsequent contentious proceedings’ (ILC Commentary to Article 14(1)). See also Ahmadou Sadio Diallo (Republic of Guinea v Republic of the Congo), ICJ Reports 2007, para 39: ‘The scope ratione materiae of diplomatic protection originally limited to alleged violations of the minimum standard of diplomatic protection of the treatment of aliens, has subsequently widened to include inter alia internationally guaranteed human rights’.

¹⁵ Interhandel, ICJ Reports 1959, p 15 at p 27 and Elettronica Sicula case, ICJ Reports 1989, p 15 at p 42, para 50. The adequacy of the redress provided is not necessarily disproved by illegal occupation of the wrongdoer State on condition the redress provided is adequate and effective. See the ‘Namibia’ principle in Legal Consequences for States of the presence of S. Africa (SW Africa), Advisory Opinion, ICJ Reports 1971, 16, para 125; Demopoulos v Turkey (Admissibility) ECHR Grand Chamber (2010) 104 AJIL 628–31 ‘allowing Turkey to correct wrongs imputable to it does not amount to indirect legitimisation of a regime unlawful under international law’, paras 92–8.

¹⁶ Diallo, Preliminary Objections ICJ Reports 2007, para 44.

¹⁷ Jennings and Watts, Oppenheim’s International Law I (9th edn, 1992), 522–3.

¹⁸ But note the ILC Commentary would seem to limit diplomatic protection to claims of nationals not engaged in official international business of the State, these officials being covered by other rules such as the Vienna Conventions on Diplomatic and Consular Relations.

¹⁹ R v Secretary of State for Transport, ex parte Factortame (No 2) [1991] AC 603; M v Home Office [1992] QB 270.

²⁰ The arguments for extending an exception to immunity to enable the enforcement of legitimate expectations under administrative law are discussed in Ch 15 and are based on analogy and comparison to the position of the individual under his/her home law.

²¹ Fincke, ‘Sovereign Immunity: Rule, Comity or Something Else?’ (2010) 21 EJIL 853, ‘If States are bound by Human Rights and if the rule of law has any meaning in international law why are States exempt from jurisdiction within the territory of another State?’. Jennings, ‘The Place of the Jurisdictional Immunity of States in International and Municipal Law’, Lecture No 108 to Univ SaarlandEuropa-Institut Saarbrucken 16 November 1987.

²² Jennings and Watts (eds), Oppenheim’s International Law I, 342–3. See fns therein for reference to supporting State practice.

²³ [1958] AC 379 at 609, [1957] 3 All ER 441, 24 ILR 175. He considered there to be no certain international law of State immunity: ‘There is no agreed principle except that each State ought to have proper respect for the dignity and independence of other States… It is left to each State to apply the principle in its own way and each has applied it differently. Some have adopted a rule of absolute immunity which, if carried to the logical extreme, is in danger of becoming an instrument of injustice. Others have adopted a rule of immunity for public acts but not for private acts, which has turned out to be an elusive test. All admit exceptions. There is no uniform practice. There is no uniform rule. So there is no help there.’ See further McGregor, ‘Torture and State Immunity: Deflecting Impurity, Distorting Sovereignty’ (2008) 18 EJIL 903 at 917.

²⁴ Jurisdictional Immunities, para 57. Even the editors Jennings and Watts conceded, ‘… state practice is sufficiently established and generally consistent to allow the conclusion that, whatever the doctrinal basis may be, customary international law admits a general rule, to which there are important exceptions, that foreign States cannot be sued’, Oppenheim’s International Law I.

²⁵ There are also strong economic considerations in favour of a foreign State’s immunity from enforcement; the secure placement of foreign reserves of China and other States with expanding economies lodged in the US and western European States constitute a significant factor in the balance of payments and stabilization of currency rates.

²⁶ See also Greek law, as with the Minister of Justice’s decision, pursuant to the Greek Civil Procedure Code not to enforce the judgment given against Germany in Prefecture of Voiotia v Federal Republic of Germany, Case No 11/2000, Aveios Pagos (Hellenic Supreme Court), 4 May 2000, 123 ILR 513; Vournas, ‘Sovereign Immunity and the Exception for jus cogens Violations’ (2002) NYU Sch J Int and Comp L 629.

²⁷ ‘The Problem of Jurisdictional Immunities of Foreign States’ (1951) 28 BYIL 220. In this article Lauterpacht gives five grounds for retention of immunity: independence, equality, and dignity; its existence as a rule of customary international law; the continuing public nature of state functions despite a shift to economic activity; the impossibility of enforcement; and the impossibility of a sustainable distinction between acts jure imperii and acts jure gestionis.

²⁸ Third Session of the Committee of Experts for the Progressive Codification of International Law, 22 AJIL (1928) Sp Supp 128, at p 128, 11 October 1926.

²⁹ Schooner Exchange per Marshall CJ ‘… a clear distinction is to be drawn between the rights accorded to private individuals or private trading vessels, and those accorded to public armed vessels which constitute a part of the military force of the nation’ [143].

³⁰ Wade and Forsythe, Administrative Law (8th edn), 18, 24.

³¹ Acts derived from legislation or prerogative powers of government determining rights of citizens are subject to judicial review whilst contract-based rights may give rise only to private law remedies. R v Panel of Takeovers and Mergers, ex parte Datafin plc [1987] QB 815 at 847, [1987] 1 All ER 564; R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 2 All ER 853.

³² Such damages might be awarded to punish the oppressive, arbitrary, or unconstitutional action of the servants of government: Rookes v Barnard [1964] AC 1129, [1964] 1 All ER 367, but distinguished in AB v SW Water Services Ltd [1993] 2 WLR 507; Kuddus v Chief Constable of Leicestershire [2002] 2 AC 122, [2001] 2 WLR 1789, [2001] 3 All ER 193, HL(E).

³³ Foster v British Gas, Case C-188/89 [1991] 2 AC 306, [1990] 3 CJEC 897, para 20. The European Court of Justice here provides a definition of an entity coming within the scope of a member State for the purpose of implementation of a directive: ‘a body whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State, and which has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals’.

³⁴ Lechouritou v Dimosio, ECJ Case C-292/05 [2007] 1 L Pr 216, [2007] 2 All ER 57.

³⁵ Poplar Housing and Regeneration Community Assn v Donoghue [2002] QB 48, [2001] 3 WLR 183, [2001] 4 All ER 604, on whether a housing association letting premises to homeless persons for which the local authority is under a public duty to house is a public authority. Aston Contlow v Wallbank [2004] 1 AC 546, [2003] 3 WLR 283, [2003] 3 All ER 1213, HL(E), YL v Birmingham City Council [2007] UKHL 27, [2007] 3 WLR 112, Elliott CLJ 66 (2007) 486.

³⁶ Draft Articles on State Responsibility A/CN.4/L.602/Rev.1 26 July 2001, Arts 4 and 5.

³⁷ In its prohibition of State action abridging or depriving or denying US citizens of ‘life, liberty, property, without due process of law’ it is necessary to distinguish the involvement of public authorities from that of individuals, particularly with regard to racial discrimination. Alexander and Horton, Whom does the Constitution Command? (1988); Rotunda et al, Treatise of Constitutional Law (1986), 2, 156–98.

³⁸ AB v SW Water Services Ltd [1993] 2 WLR 507 at 527.

³⁹ Crawford, ‘International law and Foreign Sovereigns’ (1983) 54 BYIL 75.

⁴⁰ French jurists dispute whether a foreign State’s failure expressly to include a ‘clause exorbitante’ in making a transaction may be construed as a waiver of immunity as to its nature as an exercise of public power. Bourel counters that waiver must be express, that it is not for the State unilaterally to determine the terms of a contract, and that the transaction should be governed by good faith; it may be that the foreign State is required to ‘educate’ the other party of his special position as to immunity: Cass civ I, 17 January 1973, JDI (1973), 725, note Kahn; RCPIL (1974) 124, note Bourel. See also Spain v Société Anonyme de l’Hotel George, Cour de Cassation, civ I, 17 January 1973, JDI (1973), 725, note Kahn, RCPIL (1974) 124, note Bourel; 65 ILR 61.

⁴¹ Sornarajah, ‘Problems in Applying the Restrictive Theory of State Immunity’ (1981) 31 ICLQ 668.

⁴² I Congreso del Partido [1983] 1 AC 244 at 262, [1981] 2 All ER 1062 at 1070, HL, 64 ILR 307.

⁴³ The Charkieh (1873) LR 4 A & E 59 at 97.

⁴⁴ Mullerson, Ordering Anarchy: International Law in an International Society (2000), 107–9, who provides a further example in the Irish Good Friday Agreement with its arrangements ‘to ensure key decisions are taken on a cross-community basis’.

⁴⁵ Usefully summed up in international relations terms as ‘a capacity for self-government, an economic resource base and an ability to defend itself militarily’: Sorensen, ‘An Analysis of Contemporary Statehood: Consequences for Conflict and Cooperation’ (1997) 23 Rev of Int Studies 255.

⁴⁶ Oliver, ‘The Frontiers of the State: Public Authorities and Public Functions under the Human Rights Act’ [2000] PL 466.

⁴⁷ Harlow, ‘Global Administrative Law: The Quest for Principles and Values’ (2006) 17 EJIL 187 at 204–13.

⁴⁸ ‘Les avantages de l’État qui lui confèrent un caractere irremplacable sont le fait qu’il s’agit d’une structure internationale stable, d’une institution indispensable pour faire appliquer le droit international sur son territoire et le mieux adaptée pour régir les relations de proximité.’ Salmon. Quelle Place pour l’État dans le droit international aujourd’hui? (2010) 347 Hague Receuil 13 at 76.

⁴⁹ Schachter, ‘The Decline of the Nation-State and the Implications for International Law’ (1997) 36 Columbia J Transnat Law 22. The functions of the modern State are well summed up in the 2001 Report of the International Commission on Intervention and State Sovereignty, para 1.34.

⁵⁰ Pellet in Crawford, Pellet, Olleson (eds), Law of State Responsibility (2010).

⁵¹ Italy also had an argument based on the territorial tort exception to immunity (see Ch 15).

⁵² Although on the facts of the claim, after consideration of the territorial tort exception as recognized in State practice—treaty, national legislation, and decisions of national courts—the ICJ confined its decision to hold that ‘customary international law continues to require that a State be accorded immunity in proceedings for torts allegedly committed on the territory of another State by its armed forces and other organs of State in the course of conducting an armed conflict’ (71). But see Jurisdictional Immunities, Oral proceedings, 12 September 2011, Tomuschat, Gattini and Kolb.

⁵³ ILC’s Draft Articles on State Responsibility, Art 42(b); ‘A State which has not been injured, but which may invoke the responsibility of the wrongdoing State, does so essentially in the exercise of a collective interest.’ Gaja, in Crawford, Pellet, Olleson (eds), Law of State Responsibility (2010), Ch 64, 961.

⁵⁴ Al-Adsani v UK (2002) 34 EHRR 273. See also Prosecutor v Furundzija, IT-95-17/1-T (10 December 1998), 121ILR 213 per Judge Cassese at 155.

⁵⁵ Armed Activities in the Territory of the Congo (Democratic Republic of the Congo v Rwanda) ICJ Reports 2006, para 64.

⁵⁶ [2007] 1 AC 270, [2006] 2 WLR 70.

⁵⁷ It is to be noted that whilst the court held the claim barred in the UK court for lack of jurisdiction it did not deny that the jus cogens prohibition could be given effect in a national court where the forum State had jurisdiction by reason of the act committed in its territory or the nationality of the perpetrator or where the forum State was under treaty obligation to exercise universal jurisdiction, see Lord Hoffmann, para 44 citing Fox that ‘there is no substantive content in the procedural plea of state immunity upon which a jus cogens mandate can bite’.

⁵⁸ Siderman de Blake v Republic of Argentina 965 F 2d 688 (9th Cir 1992), 103 ILR 454.

⁵⁹ Princz v Federal Republic of Germany 26 F 3d 1166 at 1174 (DC Cir 1994), 33 ILM 1483 (1994), 103 ILR 594.

⁶⁰ In Smith v Socialist People’s Libyan Arab Jamahirya 886 F Supp 306 (EDNY 1995) 107 ILR 382; Belhas v Ya’alon 515 F.3d 1279, 1286–9 (to same effect); Joo v Japan 332 F.3d 679, 686 (DC Cir 2004) (‘[A] sovereign cannot realistically be said to manifest its intent to subject itself to suit inside the United States when it violates a jus cogens norm outside the United States’), vacated on other grounds by 542 US 901 (2004); Doe I v State of Israel 400 F Supp 2d 86, 105 (DDC 2005) ‘Jus cogens violations, without more, do not constitute an implied waiver of FSIA immunity’. See Ch 8 US FSIA.

⁶¹ Prefecture of Voiotia v Federal Republic of Germany Case No 11/2000, Areios Pagos (Hellenic Supreme Court) 4 May 2000.

⁶² Ferrini v Federal Republic of Germany Italian Cour de Cassation, Judgment No 5044 of 11 March 2004, registered 11 March 2005, 128 ILR 658, 87 Rivista diritto internazionale (2004) 539, paras 7 and 7.1.

⁶³ Similar judicial practice was found in Slovenia, Poland, Belgium, Serbia, Brazil, and Germany.

⁶⁴ At para 91.

⁶⁵ Osman v UK ECHR 87/1997/871/1083, Judgment of 28 October 1998.

⁶⁶ Holland v Lampen-Wolfe [1998] 1 WLR 188, CA, [2000] 1 WLR 827, HL.

⁶⁷ Al-Adsani v UK (2002) 34 EHRR 273.

⁶⁸ Fayed v UK Judgment of 21 September 1994, Series A 294–B, para 65, cited in Al-Adsani at para 47. Kalogeropoulos v Greece and Germany, ECHR No 0059021/00 Judgment on Admissibility, 12 December 2002.

⁶⁹ Resolution of the Institut de Droit International (2005 Cracow session) on Obligations erga Omnes in international law (Rapporteur Mr Giorgio Gaja) Art 1, ADI vol 71–II, 2006, 287.

⁷⁰ At paras 69–70.

⁷¹ See the US reservation to the UN Convention on Torture making this limitation express.

⁷² As spelt out in Art 41 of the ILC Articles of State Responsibility.

⁷³ Belgium v Senegal ICJ Reports 2012, para 82.

⁷⁴ Belgium v Senegal, paras 94–5. Nor did the Court rule as to a possible customary international requirement of universal jurisdiction.

⁷⁵ Judge Bennouna, Separate Opinion para 4 in Jurisdictional Immunities.

⁷⁶ ILC’s draft Articles on State Responsibility, Art 42(b); ‘A State which has not been injured, but which may invoke the responsibility of the wrongdoing State, does so essentially in the exercise of a collective interest.’ Gaja, in Crawford, Pellet, and Olleson (eds), Law of State Responsibility (2010), Ch 64, 961.

⁷⁷ Fallon Jr, ‘Justiciability and Remedies and their Connection to Substantive Rights’ (2006) 92 Virginia Law Rev 633; Harbison, ‘Private Enforcement of Public Values in US Courts: Justiciability Barriers in Environmental Law’ (2001) 4 Environment Law Rev 264.

⁷⁸ Dicey, Morris and Collins on the Conflict of Laws (14th edn, 2010), 178, para 7-003-5.

⁷⁹ Sykes and Pryles, Australian Private International Law (1991), 256–67; Nygh’s Conflict of Laws (7th edn, 2002), 333–50.

⁸⁰ Well illustrated by Dicey’s solution to the classification of damage in tort, which in the 14th edn cites with approval the High Court of Australia’s view that ‘matters affect the existence of, extent or enforceability of the rights or duties of parties to an action are matters that, on their face appear to be concerned with issues of substance’, and the qualification in 2010 in the 4th Cumulative Supplement referring to ‘the House of Lords decision in Harding v Wealands [2007] AC 1 where all matters of quantification of damages were regarded as procedural’. The superficial resemblance of actions in tort to the personal injuries tort immunity exception may have encouraged this borrowing, but should in fact warn of the dangers of attempting to identify what elements in the foreign State’s act relate to procedure and what to substance in applying the procedure/substance distinction.

⁸¹ Many of these related to child care cases where the absence of a right to sue was argued as a denial of procedural right of access. In X v Bedfordshire County Council [1995] 2 AC 633 it was decided that ‘the inability of the applicants to sue the local authority flowed not from an immunity but from the applicable principles governing the substantive right of action in domestic law’.

⁸² Matthews v Secretary of State for Defence [2003] UKHL 4, [2003] AC 1163.

⁸³ Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002), 14.

⁸⁴ Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002), 14.

⁸⁵ Orakhelashvili, Case note (2012) 106 AJIL 609 at 613–14; also: ‘The distinction between sovereign and nonsovereign acts cannot be affected by the “procedural” nature of immunities. Before one gets to whether this procedural bar applies, one must identify the substantive nature of the act that brings the bar into effect’.

⁸⁶ 9 March 2011 Clunet 138 (2011) 953. See also Judge Gaja Dissenting Opinion in Jurisdictional Immunities. Insurers challenged the bar of immunity to recover loss incurred in consequence of the Libyan terrorist bombing of a French registered aircraft.

⁸⁷ Nada v Switzerland, (Application no. 10593/08) 12 September 2012, para.183 referring to Ahmed and others v HM Treasury [2012] UKSC 2, 2 WLR 378.

⁸⁸ In the light of the Convention’s special character as a treaty for the collective enforcement of human rights and fundamental freedoms (see, for example, Soering, cited above, § 87, and Ireland v UK, 18 January 1978, § 239, Series A no 25), the Court finds that the respondent State could not validly confine itself to relying on the binding nature of Security Council resolutions, but should have persuaded the Court that it had taken—or at least had attempted to take—all possible measures to adapt the sanctions regime to the applicant’s individual situation, para 126. This finding ‘dispensed the Court from determining the question of the hierarchy between the obligations of the States Parties to the Convention under that instrument, on the one hand, and those arising from the UN Charter, on the other. ‘In the Court’s view, the important point is that the respondent Government have failed to show that they attempted, as far as possible, to harmonise the obligations that they regarded as divergent’ para 127.

⁸⁹ On the normative choices made by courts, see Nollkaemper, ‘International Adjudication of Global Public Goods: The Intersection of Substance and Procedure’ (2012) 23 EJIL 769.

⁹⁰ See Sloane ‘On the Use and Abuse of Necessity in the Law of State Responsibility’ (2012) 106 AJIL 446 at 491 challenging the treatment of necessity, one of seven circumstances precluding wrongfulness as support a uniformly applicable secondary rule of responsibility and the consequent misuse of the plea of necessity with regard to investment failure.

⁹¹ See Sloane, ‘On the Use and Abuse of Necessity in the Law of State Responsibility’, 491–2.

⁹² Nollkaemper, ‘International Adjudication of Global Public Goods: The Intersection of Substance and Procedure’.