Accepting the sources of international law to be as summarized in Article 38(1) of the Statute of the International Court of Justice (ICJ), law-making international conventions are clearly the best source of the principles and rules relating to State immunity. Not until the twenty-first century was the law of State immunity accorded sufficient relevance for States to adopt an international convention dealing with the topic and for the issues which it raised to come before the ICJ. That disregard changed with the adoption in 2004 by the UN General Assembly of the UNCSI. In addition to UNCSI, two earlier multilateral treaties deal exclusively with State immunity: the 1926 Brussels Convention for the Unification of Certain Rules Relating to the Immunity of State-Owned Vessels, which is of more restricted scope providing rules both as to immunity and liability for State ships in commercial use; and the regional 1972 European Convention on State Immunity (ECSI). In addition to these multilateral treaties, there are bilateral agreements which contain rules for the contracting parties and may also provide evidence of State practice, although in their provisions the contracting parties may be seeking to avoid rather than confirm the legal position under general international law.
Failing treaty as a source, the resolutions of international bodies, particularly if passed by the UN, may provide valuable indications of a consensus as to what the law should be, or even, if clearly expressed, of current accepted principles of international law. Projects of codification by governmental and non-governmental bodies have influenced legislators and judges. Pre-eminent among these is the work of the International Law Commission (ILC), a subsidiary organ of the General Assembly; its membership combines technical expertise, understanding of governments’ requirements, and representation from many political viewpoints; its agreed drafts have frequently provided the bases for international conferences and for their adoption as multilateral law-making conventions. On this account, in a study of the current status of the international law of State immunity, it is necessary to give considerable attention to the work of the ILC and its accompanying Commentary to the 1991 Draft Articles on the Jurisdictional Immunities of States and their Property, particularly now that these articles have been adopted for the most part verbatim in the text of the 2004 UNCSI.1 Part III of this book on the Current International Law of State immunity sets out in detail the relevant comments of the ILC relating to the topics of Definition of the Foreign State (Chapter 10), Consent of the Foreign State (Chapter 11), Immunity from Adjudication and its exceptions (Chapters 12, 13, 14 and 15), and Immunity from Enforcement (Chapters 16 and 17). In 2007, the ILC decided to undertake a further study entitled, ‘The Immunity of State Officials from Foreign Criminal Jurisdiction’. The Special Rapporteur, Mr RA Kolodkin delivered a preliminary report and two further reports which were discussed in the UNGA Sixth (Legal) Committee in 2008 and 2011.2 Ms Concepción Escobar Hernández replaced Mr Kolodkin as Special Rapporteur in 2012. Both the proposals of Mr Kolodkin and of Ms Escobar Hernandez have been the subject of criticism in the discussions in the Commission and in the Sixth Committee.3
Decisions of the ICJ carry great authority as rulings of the principal judicial organ of the UN and the decisions in the Arrest Warrant, Djibouti v France, Jurisdictional Immunities and Belgium v Senegal delivered in 2002, 2008, and 2012 respectively, provide rulings directly relevant to the law of State immunity.4 The decision in the Arrest Warrant case related to the issue of an international warrant by a national court of one State, Belgium, for the arrest of a serving foreign minister of another State, the Democratic Republic of the Congo, for crimes against humanity; its issue was held to constitute a coercive measure against a high ranking State official and accordingly was held by the ICJ to be a breach of international law by Belgium. The ICJ decision in Djibouti v France concerned the immunity of a visiting head of State with respect to a witness summons and of a requirement of prior notice to the forum State as a condition precedent of similar immunities enjoyable by other organs or government officials (in that case, the Head of National Security and the State Prosecutor). The decision in the Jurisdictional Immunities case concerned an application by Germany to the ICJ alleging that Italy was in breach of international law by its national courts’ disregard of Germany’s entitlement to immunity in claims for reparation by victims of acts of war damage committed by German armed forces in 1943–45 (paras 21–30). The Court held that pursuant to the European Convention for the Peaceful Settlement of Disputes 1957 the two States had conferred jurisdiction on the Court in respect of disputes after 1961 and applied customary international law. The Court upheld Germany’s claim in its entirety. In respect of the claims relating to immunity from adjudication, it rejected the application of any tort exception to State immunity as regards the deportation to Germany and enforced labour in German factories of Italian nationals entitled to prisoner of war status: ‘State practice in the form of judicial decisions supports the proposition that State immunity for acta jure imperii continues to extend to civil proceedings for acts occasioning death, personal injury or damage to property committed by the armed forces and other organs of a State in the conduct of armed conflict, even if the relevant acts take place on the territory of the forum State’ (para 77). Further the Court held that, ‘The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful’ (para 93). In consequence, the pleas of violation of jus cogens rules and of no effective alternative means of securing redress raised by Italy had no application (paras 97 and 101). As to the Italian court’s order in respect of the German property in Italy, the Court held that the cultural institute, the Villa Vigoni, was being used for governmental purposes that were entirely non-commercial and it was consequently immune from measures of constraint (paras 118–20).
In handing down its judgment in the Jurisdictional Immunities case, the ICJ emphasized that ‘it was addressing only the immunity of the State itself from the jurisdiction of the courts of other States, the question of whether, and if so to what extent, immunity might apply in criminal proceedings against an official of the State is not in issue in the present case’ (para 91). As to the issue of State responsibility, the Court commented:
… that it is a matter of surprise—and regret—that Germany decided to deny compensation to a group of victims on the ground that they had been entitled to a status which, at the relevant time, Germany had refused to recognise, particularly since those victims had been denied the legal protection to which that status entitled them … [These] claims … could be the subject of further negotiation involving the two States concerned, with a view to resolving the issue (paras 99 and 104).5
A number of Separate and Dissenting Opinions were appended to the Jurisdictional Immunities judgment. Judge Koroma noted that international humanitarian law now regards individuals as the ultimate beneficiaries of reparations for human rights violations, but it does not follow that international law provides individuals with a legal right to make claims for reparation directly against a State. Judge Keith’s Separate Opinion emphasized how international rules on State immunity are firmly based on principles of international law and on policies of the international legal order. He observed that at the international level claims in respect of war damages are in practice dealt with by inter-State negotiations and agreements, which reflected post-war realities and strongly supported the conclusion that a former belligerent State may not be subject, without its consent, to the jurisdiction of a foreign court in cases on compensation for war damages. Judge Bennouna used his Separate Opinion to propose an alternative approach to such cases. He said that responsibility is indistinguishable from the exercise of sovereignty, which means that it is only, where appropriate, by assuming its responsibility that a State can justify its claim to immunity before foreign courts on the basis of sovereign equality. He suggested that it is only in ‘exceptional circumstances’, where a State presumed to be the author of unlawful acts rejects any attribution of responsibility, in whatever form, that it could lose the benefit of immunity before the courts of the forum State. In an extensive Dissenting Opinion (lengthier than the judgment itself), Judge Cancado Trindade argued there are no State immunities for delicta imperii, such as massacres of civilians or deportation and subjection to forced labour. For him, it is immaterial whether the grave breach of human rights was a governmental act, or a private one with the acquiescence of the State, or whether it was committed entirely in the forum State or not. He proposes a vision of international law centred increasingly on the individual rather than the State and concludes that jus cogens stands above the prerogative or privilege of State immunity, with all the consequences that ensue therefrom, thus avoiding denial of justice and impunity. Judge Yusuf also appended a Dissenting Opinion, pointing out the Court’s inadequate analysis of the obligation to make reparations after violations of international humanitarian law and challenging its approach towards the role of domestic courts in the identification and evolution of international customary norms. Finally, Judge ad hoc Gaja (as he then was) wrote a Dissenting Opinion that carefully analysed State practice concerning the ‘tort exception’ to State immunity. He concludes that the variety of national judicial decisions shows that the issue lies in a ‘grey area’ in which States may take different positions without necessarily departing from the requirements of general international law. He points out that one factor that could contribute to justifying a restrictive approach to State immunity when applying the ‘tort exception’ is the nature of the obligation (eg jus cogens) for the breach of which a claim to reparation is brought against a foreign State. He argues that the ICJ should have considered that at least for certain decisions of Italian courts the exercise of jurisdiction could not be regarded as contravening general international law.6
The Belgium v Senegal judgment concerned the narrower issue of the obligation to extradite or prosecute the former head of State of Chad, Hissene Habré, accused of serious crimes, including torture.7 Overthrown on 1 December 1990, Mr Habré had been living in Senegal ever since. The Court considers that any State Party to the Convention against Torture, such as Belgium, may invoke the responsibility of another State Party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes (see further Chapter 4 on the implications of this case for jurisdiction). The Court held that Senegal’s failure to adopt until 2007 the legislative measures necessary to institute proceedings against Mr Habré on the basis of universal jurisdiction delayed the implementation of its other obligations under the Torture Convention. It further stated that Senegal was in breach of its obligation under Article 6(2), to make a preliminary inquiry into the crimes of torture alleged to have been committed by Mr Habré, as well as of the obligation under Article 7(1) to submit the case to its competent authorities for the purpose of prosecution. Consequently, Senegal was found responsible for these breaches under the Convention and was required to cease this continuing wrongful act and to take, without further delay, the necessary measures to submit the case to its competent authorities for the purpose of prosecution, if it did not extradite Mr Habré.8
The ICJ in its most recent decision on State immunity referred extensively to ‘the record of national legislation, judicial decisions, assertions of a right to immunity and the comments of States on what became the United Nations Convention’.9 Contrary to its 2002 decision on the Arrest Warrant relating to the immunity of a State official, a decade later the Court in Jurisdictional Immunities in examining the existence of a tort exception to State immunity in international law, supported every stage of its reasoning by reference to the decisions of national courts.10 Thus at paragraph 70, the Court observed:
In the Court’s opinion, State practice in the form of judicial decisions supports the proposition that State immunity for acta jure imperii continues to extend to civil proceedings for acts occasioning death, personal injury or damage to property committed by the armed forces and other organs of a State in the conduct of armed conflict, even if the relevant acts take place on the territory of the forum State. That practice is accompanied by opinio juris, as demonstrated by the positions taken by States and the jurisprudence of a number of national courts which have made clear that they considered that customary international law required immunity.11
In Chapter 1 under the heading ‘The role of national law’, it was noted that, in addition to providing evidence of State practice in support of a rule of customary international law, national legislation and national courts may also, by the exercise or refusal of jurisdiction over a party to a proceeding relating to State immunity, contribute to the formulation of the international law on the subject; that is, ‘create’ the law as well as implement it. To understand fully the contribution of national legislation and decisions of national courts to the formation of the international law of State immunity both an identification of the available material and some evaluation of its use as a source are required.
Addressing first the identification of the material, the documentation of the practice of governments, particularly of China, Russia, and developing States, relating to State immunity is largely derived from the research instituted by the ILC in support of its work on State immunity. It is to be found in the Collection of Materials on Jurisdictional Immunities of States and their Properties prepared by the Codification Division of the UN Office of Legal Affairs in 1982.12 The answers of governments to the questionnaire of Mr Ogiso, second ILC Special Rapporteur in 1988, provide some further information. In 2002, the Council of Europe commissioned a project, conducted under the supervision of its Committee of Legal Advisers on Public International Law (CAHDI), for the collection of the practice of all its Member States as regards national legislation and judicial decisions relating to State immunity.13 In addition, national court decisions are now increasingly available online. As well as the International Law Reports, a series dating from 1919, International Law in Domestic Courts, a module in the Oxford Reports on International Law, provides a further collection of decisions relating to State immunity. Chapter 6 on the development of the restrictive doctrine of immunity takes account of all these surveys and provides a brief summary of States’ relevant national legislation and court decisions. The frequency of citation across the jurisdictions which address issues relating to State immunity is now widespread. It is to be noted that many courts go beyond mere citation and engage in ‘dialogue’ across jurisdictions with other courts, meaning the discussion, application, or rejection of foreign decisions.14 At the same time, one needs to be alert to a national court’s practice of the selective use of favourable decisions of a foreign jurisdiction and the neglect of unfavourable ones to support its own rulings.15
In evaluating this expanded coverage of State immunity issues in national courts, caution also needs to be exercised bearing in mind that it represents only about one-fifth of the total number of around 200 States.16 Nollkaemper reports that the ‘International Law in Domestic Courts module … has shown about 30–40 states in which courts relatively frequently give effect to international law, and about 40 more in which courts occasionally give effect to international law’.17 Further, the different constitutional rules of States which govern the reception into their domestic law of customary international law may permit direct observance of a treaty rule in one State which at the same time, by reason of being unincorporated, is given no effect by the national court of another State.18
As part of this second stage of evaluation, different justifications are advanced for law ‘creation’ as well as law ‘enforcement’ as a dual function of national courts in their treatment of international law. One body of international jurists welcomes the dual process as enabling national courts to safeguard and act as guardians of the international legal order; Conforti writing in 1988 comments on the inadequacy of remedies to give effect to current international law and recommends resort to the national courts as ‘les opérateurs juridiques internes’ who alone have the effective means at their disposal to ensure its observance.19 A second group, mindful of the many factors which differentiate a decision before a national court from an international court—the specific set of facts on which a ruling is required, the political, economic, and social circumstances which give rise to the proceeding, conflicting national law regulations—stress the national court’s role in shaping the rule with regard to the forum State’s constitution and in the light of national democratic requirements neglected by the international formulation of the law.20 The direct effect, which the EU system by a further degree of integration achieves, is absent in the relationship between national courts and international law. Nollkaemper in his recent study National Courts and the International Rule of Law notes that ‘the most significant theoretical as well as practical barrier against considering national courts as a systemic force in the protection of the international rule of law is that national courts are an organ of the very states whose acts and omissions they are to control’; the choice of any direct effect remains ‘primarily a political and normative choice, both for states and their courts’.21 Nonetheless, Nollkaemper noting ‘the increasing regulatory nature of international law governing the legal rights and obligation of private persons who are located in domestic legal orders (302) …’ national courts need not be faithful but blind enforcers of international law, but may have to fulfil a role of safety-valve or ‘gate-keeper. By not resorting to constitutional resistance, but rather basing themselves on international standards, they set a standard, for other courts and indeed other international courts. By doing so courts will indeed move beyond blind nationalistic protectionism against international law, towards a productive dialogue with other courts that, for instance, may lead to a progressive development of the law of UN pertaining to protection of fundamental rights.’22
This moves him into a third group of jurists who liken the process of ‘law creation’ as similar to the horizontal task of the comparativist, respectful of different systems, producing more ‘a horizontal engagement of ideas’; rather than seeing ‘international law as an order above cultures’.23 This third approach would see the process more correctly described as one of ‘translation from international to national law’ (Knop),24 ‘judicial transformation’ (Capps) or ‘coordination’ (Nollkaemper).25 As regards immunity, this process was effectively characterized by Lord Wright in describing the rule of State immunity in English courts in The Christina as ‘binding on the municipal courts of this country in the sense and to the extent that it has been received and enforced by these Courts’.26
However, with the recent increase in the twenty-first century in the determination by international tribunals of issues relating to immunity and the adoption by the UN General Assembly in UNCSI of a written statement of the law of immunity as it applies internationally, the importance of judicial decisions as a statement of relevant law rather than as evidence of its observance may be diminishing. Certainly, now that its decisions delivered in 2002, 2008, and 2012 respectively, in the Arrest Warrant, Djibouti v France and The Jurisdictional Immunities of the State cases, directly address issues relating to State immunity, the ICJ is providing for all UN Member States an authoritative interpretation of the general principles of international law and of the UN institutions’ understanding and practice in respect of those principles.
Although, as mentioned above, the formulation of the ICJ’s judgment on the extent of the tort exception to State immunity as it relates to the acts of a foreign State’s armed forces is largely built on a careful detailed examination of relevant national court decisions, the Court stresses throughout its judgment that these decisions constitute but one aspect of ‘State practice from which customary law is derived’.27 A ‘peace treaty’, ‘postwar settlement’, ‘use of lump sum settlements and setoffs’, or ‘out of court further negotiations involving the two States concerned’ are also identified as aspects of State practice of which the Court is prepared to take notice in determining a State’s discharge of its international obligations.28 Moreover, the ICJ said national courts should not balance the different factors, assessing the respective weight of the various circumstances that might justify the exercise of jurisdiction and the interests attaching to the protection of immunity because ‘such an approach would disregard the very nature of State immunity’.29 Because immunity is a right of the foreign State and must be determined at the outset of the proceedings, before consideration of the merits, it ‘cannot, therefore, be made dependent upon the outcome of a balancing exercise of the specific circumstances of each case to be conducted by the national court before which immunity is claimed’.30 In any event, the increased legislative and judicial activity at the international level based on international conventions and international tribunals charged with their interpretation, such as the ECtHR or the ICC, may also take precedence as a source of customary international law over decisions of a single national jurisdiction.
In sum, it is suggested that this increased judicial and legislative activity at the international level confirms that national courts with respect to State immunity continue to exercise their traditional role of providing evidence of State practice rather than the direct creation of international law.
The 2004 UNCSI is the first general international convention containing the rules relating to State immunity. When the Convention enters into force, the law of State immunity will be comparable with the law relating to diplomatic and consular relations, which has been codified in the Vienna Convention on Diplomatic Relations 1961 and the Vienna Convention on Consular Relations 1963. As at May 2013, 187 and 175 States respectively were parties to these Conventions, which have been implemented into many national legal systems.31
Other treaty provisions relevant to State immunity can largely be treated under four broad heads:
(i) provisions relating to a particular State, activity, or State property in respect of which the contracting parties agree not to plead immunity;
(ii) the 1926 Brussels Convention and 1934 Protocol on State Owned or Operated Ships;
(iii) The European Convention on State Immunity 1972;
(iv) Projects for codification of the law of State immunity.
By treaty, States can either confirm by agreement an immunity enjoyed or consent by waiver to its removal. An example of the first occurs in proceedings under the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID). ICSID obliges each contracting State to recognize and enforce pecuniary obligations imposed by awards of ICSID tribunals as if they were final judgments of the State’s own courts, but it reserves ‘questions of immunity of any foreign State from execution’ in respect of any ICSID award to the law of the State where enforcement of the award is sought.32 The 1958 Geneva Convention on the High Seas similarly confirmed the absolute immunity enjoyed by warships on the high seas from the jurisdiction of any State other than the flag State. By waiver, States may agree to the removal of immunity for clearly defined transactions with strong jurisdictional connections to the forum State without abandonment of the principle of immunity otherwise applicable. The UNCSI follows this approach.33
In most bilateral conventions, State immunity is expressed by means of consent to jurisdiction of the courts of the other contracting State, and may include a waiver of immunity, sometimes extending to immunity from execution, subject to qualifications, which is usually confined to contracts or commercial transactions.
The Peace Treaties after the First World War with Germany, Austria, Bulgaria, Hungary, and Turkey all provided in respect of the government of these countries that ‘if the … Government engages in international trade, it shall not in respect thereof have any rights, privileges or immunities of sovereignty’.34
The nationalization of the conduct of all trading activities by the Communist regime threatened the stability of the trade relations of the Communist bloc States. To solve the problem the USSR entered into a considerable number of agreements with European States in the inter-war years35 and after the Second World War with a wider variety of States. Crawford carried out a detailed analysis and divided the agreements after 1945 into three models: the French, the Italian, and the United Arab Republic.36 Although the agreements vary, they are broadly designed, after confirming the general immunity of the USSR’s Trade Delegation, so as to render disputes arising out of ‘commercial contracts’ or ‘commercial transactions concluded or guaranteed in the territory’ of the other contracting State subject to the jurisdiction of the courts of that State. Other State trading agencies may also be made subject to jurisdiction and execution but solely in relation to their own property. Execution on the property of the USSR in respect of valid final judicial decisions given against the Trade Delegation is permitted in the French model, but in the other models is limited to ‘goods and claims outstanding against the Trade Delegation’. Interim orders were not to be made. Property and premises intended solely for the exercise in the other country of the political and diplomatic rights of the USSR ‘in accordance with international practice’ were not liable to execution measures; also prohibited from execution were the premises occupied by the Trade Delegation in the other country and its movable property.37
Both before and after the Second World War the US entered a number of Treaties of Friendship, Commerce, and Navigation containing provisions dealing with reciprocal immunity from suit and execution of judgment.38 This practice, however, was discontinued apparently ‘at the request of the Attorney General because it made defence of suits against the United States abroad more difficult’.39 US courts have, in any event, shown great unwillingness to construe any provision relating to non-invocation of immunity in such bilateral treaties as constituting explicit waiver by a foreign State of its immunity from attachment prior to judgment as required by section 1610(d) of the FSIA.40
Warships and trading vessels
In addition to the 1926 Brussels Convention discussed below, there are a number of multilateral conventions regulating sea-going vessels preserving immunity for certain State-owned or operated vessels and moderating its effect in respect of others. Three categories of State vessels are recognized: warships41 for which immunity is generally expressly preserved as provided for warships on the high sea by Article 8(1) of the 1958 Geneva Convention on the High Seas and Article 95 of the 1982 UN Law of the Sea (UNCLOS);42 as a second category, the status of other State-owned or operated vessels exclusively used in government non-commercial service is usually equated to that of warships, as with the immunities retained when passing through the territorial sea, subject to the coastal State’s right to give notice to leave and State responsibility;43 the third category of State ships are other State-owned or operated vessels in commercial service (‘government ships operated for commercial purposes’) which enjoy no immunity, being equated to the position of privately owned merchant vessels.44 The distinction between the second and third categories turns on the nature of the ship’s use, not the extent of the State ownership or possession.
Warships and State-owned or operated vessels used only on government non-commercial service in general enjoy similar immunity in respect of the rules relating to the protection and preservation of the marine environment.45 Thus Article 7(4) of the 1972 London Convention on Prevention of Marine Pollution on Dumping of Wastes, reads: ‘This Convention shall not apply to those vessels and aircraft entitled to sovereign immunity under international law’.46 However, some treaties, for example the 1973 MARPOL Convention, whilst exempting vessels entitled to immunity under international or national law from their provisions, nonetheless require the parties to ensure as far as reasonable and practicable that their State-owned or operated vessels act in a manner consistent with the Convention’s provisions.47 UNCLOS, Article 376 is to like effect, but qualifies the measures to be taken by the contracting State as ‘appropriate measures not impairing operations or operational capabilities of such vessels’.48
Objects coming within the Cultural Heritage of the State are included among the specific categories of property which the 2004 UNCSI Article 21(1)(d) and (e) identifies as property of the State not subject to post-judgment measures of constraint under Article 19(c) (see Chapter 16 ‘State Immunity from Enforcement: Categories of State Property generally regarded as immune’). However, sunken State vessels which have a cultural, historical, or archaeological character and have been underwater for at least 100 years, come within the definition of ‘underwater cultural heritage’ provided in the 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage.49 That Convention contains no separate article extending its regime to such State vessels as fall within the definition but deals with them separately by reference to the legal regime of the sea in which they were discovered. Accordingly, in the territorial sea there is an obligation on the coastal State to report the discovery of such sunken vessels to the flag State (Article 7(3)); and in the exclusive economic zone, continental shelf, and deep seabed area not to conduct any activity in relation to such sunken vessels without the agreement of the flag State (Article 10(7)). In addition, Article 13 exempts ‘warships and other government ships or military aircraft with sovereign immunity, operated for non-commercial purposes’ from the obligations to report discoveries of underwater cultural heritage in the exclusive economic zone, the continental shelf, or deep seabed area provided they are engaging in their normal mode of operation and are not engaged in activities directed at underwater cultural heritage. Nevertheless, this exemption is qualified, as in other international conventions, by a requirement that the contracting States shall comply as far as reasonable and practicable with the requirements of the Convention.50 The Paris, Vienna, and Brussels Conventions relating to civil liability for nuclear damage all provide that contracting parties may not invoke jurisdictional immunities before the courts competent pursuant to the Convention provisions, except in respect of measures of execution.51 For instance, Article X of the 1962 Brussels Convention on the Liability of Operators of Nuclear Ships provides: ‘Any immunity from legal processes shall be waived with respect to duties and obligations arising under the Convention. Nothing shall make a warship or other State-owned or State-operated ship in non-commercial service liable to arrest, attachment, or seizure or confer jurisdiction over warships on courts of any foreign State.’52 The 1952 Brussels Convention relating to the Arrest of Seagoing Ships introduces a notable exception to a State’s immunity from enforcement measures. It provides for extensive powers of arrest over ‘sea-going ships’ in respect of any maritime claim and permits arrest of any sister ship owned by the same ‘person’; such a person includes governments, their departments, and public authorities. The absence of exemption for warships led the UK when ratifying to reserve the right not to apply the Convention’s provisions to ‘warships or to vessels owned by or in the service of any State’.53
Further, the UK has not enacted the Convention into English law but by virtue of the Supreme Court Act 1981, section 20(7) and the Admiralty Practice Direction 49F, paragraph 6.2(7) made under the Civil Procedure Rules no warrant of arrest will be issued against a ship owned by a State where, by any convention or treaty, the UK has undertaken to minimize the possibility of arrest of ships of that State. This rule applies until notice has been served on a consular officer at the consular office of that State in London or the port at which it is intended to cause the ship to be arrested and a copy of the notice is exhibited to the declaration filed.
Such an undertaking was contained in a Protocol pursuant to the UK/USSR Treaty on Merchant Navigation 196854 and given effect in English law by orders in Council made under the State Immunity Act, first in respect of the USSR, and later, following decisions in the English court which refused to apply the Protocol to Ukraine and Georgia as successor State Parties to the above Treaty without legislative incorporation,55 in respect of Russia, Georgia, and the Ukraine.56
Government aircraft have been variously treated in international conventions and such treatment explains their exclusion from the application of the 2004 UNCSI, Article 3(3). State aircrafts, a term which is deemed to include aircraft ‘used for military, customs or police services’, are excluded by Article 3(a) of the Chicago Convention on International Civil Aviation of 194457 from its application, whereas special privileges are contained in the 1919 Paris Air Navigation Convention for State Aircraft.58 The Rome Convention for the Unification of Certain Rules relating to the Precautionary Attachment of Aircraft of 1933 exempts from such attachment and from saisie conservatoire ‘aircraft assigned exclusively to a government service, the postal service included, commerce excepted’.59 Air transport used by a diplomatic or special mission is immune from search, requisition, attachment, or execution under the 1961 Vienna Convention on Diplomatic Relations (Article 22) and the 1963 Convention on Special Missions (Article 25). Similarly, air transport used by a consulate shall be immune from any form of requisition for purposes of national defence or public utility under the 1963 Vienna Convention on Consular Relations (Article 31(4)).
The Warsaw Convention on Carriage of Goods by Air 192960 applies to civil aviation, and by Article 2(1) is applicable to carriage performed by a State; but by an additional Protocol contracting States reserve to themselves the right to declare at the time of ratification or accession that Article 2(1) shall not apply to international carriage by air performed directly by the State.61 Aircraft used for military, customs, and police services are excluded from the Convention’s provisions and hence are prohibited from flying over or landing in the territory of another State without authorization or by special agreement.62 But aircraft of State-owned airlines are not deemed to be State aircraft, with the Chicago Convention’s narrow definition of State aircraft in Article 3(b) suggesting that air transport by State-owned or operated aircraft is civil aviation.63
The Warsaw Convention is silent as to State immunity but in English law, under the Carriage of Goods by Air Act 1961 (which implements the Convention), a contracting party which has not availed itself of the additional Protocol is deemed for the purposes of a proceeding brought against it to have submitted to the jurisdiction of the English courts.64 Under US law, although a State-owned airline will qualify as a State agency or instrumentality, immunity is removed if expressly waived or where the action can be categorized as a commercial activity with the required jurisdictional nexus with the US under the FSIA. It is now a condition of the grant by the US Department of Transportation of an operating permit to a foreign air carrier that the carrier expressly waives any right it may possess to plead State immunity from suit in any action or proceeding instituted in the US based upon any claim arising out of operation under the permit.65 Other international conventions relating to offences committed on board, unlawful seizure, or other unlawful acts against aircraft, all apply their rules relating to civil aviation to State-owned or operated aircraft but exclude the application of their provisions to aircraft used in military, customs, or police services.66
The Council of Europe has shown itself alert to deter the abuse of immunity by the use of State aircraft for rendition purposes (illegal transport of prisoners to countries for interrogation which usually involves incommunicado detention and torture). It issued a Recommendation as follows:
Under international law, State aircraft enjoy immunity, but no overflight rights. It follows that the consent for overflight could and should be made conditional upon guarantees and control procedures concerning respect for human rights. In addition, international law allows for action in case of abuse. If a State aircraft has been presented as if it were a civil aircraft, that is to say without the required authorisation pursuant to Article 3 (c) of the Convention on International and Civil Aviation of 7 December 1944 (‘Chicago Convention’) the territorial State may require landing. The airplane for which State functions have not been declared will not be entitled to immunity and can be searched.67
The European Parliament passed similar resolutions in 2006 and 2007 on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners.68
Space objects
The position as to space objects (also excluded in UNCSI, Article 3(3)) is somewhat different to aircraft because a special regime applies to outer space. To date, activities in outer space are required to be conducted under the authorization and continuing supervision of States which are made internationally responsible for such activities, whether carried out by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the treaties. Activities of States in outer space are regulated by a special regime derived from the principles set out in five treaties: the Treaty on the Principles Governing Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies 1967 (the Outer Space Treaty),69 the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space 1968 (the Rescue Agreement),70 the Convention on International Liability for Damage caused by Space Objects 1972 (the Liability Convention),71 the Convention on the Registration of Objects Launched into Outer Space 1975 (the Registration Convention),72 and the Agreement governing the Activities of States on the Moon and Other Celestial Bodies 1979 (the Moon Agreement).73 Although the Outer Space Treaty provides that outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means, that Treaty also provides that States on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such objects, and over any personnel thereof, while in outer space or on a celestial body. Therefore, space objects remain the property of their original owners regardless of their location, and except where agreed otherwise by States (eg in the case of joint projects), personnel of spacecraft in outer space are subject to the laws of the State of registry.74
To date no questions of jurisdictional immunities of States have been raised but with increasing commercial financing and exploitation of outer space activities,75 as well as the growing problems of space traffic management and space debris,76 such questions are likely to occur. Some States have concluded bilateral agreements on waiver of immunity.77 The five multilateral Treaties, however, contain no express retention or waiver of any State immunity. Claims under the Liability Convention are divided into two categories: (i) damage caused by space objects to States which participate in the launching and operation of a space object and to the nationals of those cooperating States, which is not covered by the Liability Convention; and (ii) damage caused by space objects to third States not engaged in a common endeavour and their nationals. Category (i) damage, such as that resulting from the seven astronauts killed in the Challenger explosion of 1986, is governed by national law, whereas category (ii) damage, such as that suffered by Canada when the former USSR’s satellite Cosmos 954 crashed in Canada, is governed by international law. As regards category (ii) claims, compensation for damage caused by space objects may only be presented through diplomatic channels by States on their own behalf, on behalf of their nationals, on behalf of persons suffering damage within their territory, or on behalf of their permanent residents; failing settlement, recourse is provided to an International Claims Commission. However, the Liability Convention specifically states that nothing in its provisions shall prevent a State, or natural or juridical persons it might represent, from pursuing a claim in the courts or administrative tribunals or agencies of a launching State. It therefore seems clear that in respect of category (ii) damage claims, launching States have waived immunity. The position as to category (i) damage claims is less clear, particularly as the nature of State participation in a global governmental satellite organization such as INTELSAT is not readily categorized as commercial;78 if a foreign State is sued for damage in another State’s national court for damage caused by the operation of a space object in which it participated it seems, assuming that the forum law allows a cause of action for such space object damage, that State immunity would apply subject to waiver and the commercial or any other applicable exception. In practice, contract clauses govern the operation of space objects and are likely to regulate dispute settlement including waiver of State immunity.79
In view of the nature of space exploration and travel, it seems that any dispute as to the appropriate forum to determine liability, whether contractual or delictual in nature, should be resolved by the special regime applicable to outer space and not by reference to the general law of State immunity. This certainly seemed to be the view of the Ad Hoc Committee set up by UN General Assembly’s Sixth Committee to resolve outstanding issues relating to the 1991 ILC Draft Articles. In its Report dated 4–15 February 2002, it determined any extension to aircraft and space objects of the exception in Article 10 to immunity relating to ships owned or operated by States for other than government non-commercial purposes should be the subject of further consideration. Its consequent recommendation of an addition to Article 3 appears in the third paragraph of the final adopted text and reads that ‘the present Convention is without prejudice to the immunities enjoyed by a State under international law with respect to aircraft or space objects owned or operated by a State’.80
The 1926 Brussels Convention relating to the Immunity of State Owned Vessels and the 1934 Additional Protocol provide that State-owned or operated ships and their cargoes engaged in trade shall be subject in respect to the operation of such vessels and the carriage of cargoes to the same jurisdiction of national courts and the same liabilities as apply to private vessels and cargoes.81
The Convention and Protocol came into force in 1936 and 30 States are parties to the Convention; it was not until the SIA gave effect to its provisions in English law that the UK was able to ratify the Brussels Convention and Protocol in 1978.
Article 1 provides:
Seagoing ships owned or operated by States, cargoes owned by them and cargoes and passengers carried on State-owned ships, as well as the States which own or operate such ships and own such cargoes shall be subject, as regards claims in respect of the operation of such ships or in respect of the carriage of such cargoes, to the same rules of liability and the same obligations as those applicable in the case of the privately owned ships, cargoes and equipment.82
Article 3 provides that the Convention is not to apply to:
warships, Government yachts, patrol vessels, hospital ships, auxiliary vessels, supply ships, and other craft owned or operated by the State, and used at the time a cause of action arises exclusively on Governmental and non-commercial services, and such vessels shall not be subject to seizure, attachment or detention by any legal process, nor to judicial proceedings in rem.
The same rules applied to cargoes carried on board the above-mentioned vessels, as well as to State-owned cargoes for governmental and non-commercial purposes carried on board merchant vessels.83
Article 6 contained a reciprocity clause by which its benefits were not to be extended to non-contracting States and their nationals and allowed its application to be conditioned on reciprocity. Contracting States were, however, under obligation to apply the Convention’s provisions and authorized to do so by ‘regulating by its own laws the rights accorded to its own nationals in its own courts’.84
The Brussels Convention was an early attempt to abolish immunity in respect of a particular area of trade: the operation of trading ships owned or controlled by States.85 It was a complex subject involving the definition of the various forms of ownership, chartering, requisition etc of ships, the degrees of shared ownership or control between government and private parties, and the variety of claims (the Convention applies solely to maritime commercial operation86 and does not address fiscal, sanitary, or administrative regulation). Consequently there have been problems of application and interpretation, some of which the 1934 Protocol sought to resolve. The Brussels Convention was intended to give effect to the distinction between public and private acts but the complexity of its drafting means that its application depends on the ship coming within the precise conditions listed in the provisions. On this account the UK State Immunity Act, instead of merely giving effect in English law to the Brussels Convention, contains a specific section dealing with Admiralty proceedings in rem and in personam relating to claims against ships, their sister ships, and their cargoes (section 10) (see Chapter 9). The application of the Brussels Convention to ships conforming with its listed conditions may on occasion afford a wider immunity than does the UK SIA to government ships. But the complexity of the Convention has discouraged its wider ratification by States, particularly as national courts have shown themselves prepared, in reliance on general principles of international law, to accept jurisdiction as a non-immune proceeding relating to a private law activity over claims arising out of the carriage of goods or passengers on merchant ships owned or operated by States.87
Article 16 of the UN Convention also removes immunity in proceedings which relate to ‘the operation’ of a ship which is owned or operated by a State if ‘at the time the cause of action arose, the ship was used for other than government non-commercial purposes’. By treating the two terms as amounting to one cumulative category the UNCSI eliminated the dual criterion of ‘commercial and non-governmental’ which appeared in the earlier convention.88 Unlike the Brussels Convention, the UN Convention does not equate ‘the rules of liability’ in respect of State-owned or operated ships to those ‘applicable to privately owned ships, cargoes, and equipment’, nor does it provide for sister ship jurisdiction. Article 16 of the UN Convention applies unless otherwise agreed between the States concerned; hence it would seem that for States Parties to the Brussels Convention its provision will prevail.
The European Convention on State Immunity was the first attempt to put in legislative form a regime for State immunity based on the restrictive doctrine.89 It gave shape to many of the exceptions to immunity now found in the practice of national courts. It provided the impetus for the UK undertaking legislation to enable it to ratify the Convention; the first draft of the Bill which became the State Immunity Act 1978 was modelled on the Convention’s provisions. The Convention, however, has not achieved wide acceptance. The Council of Europe appointed a committee of legal experts under the auspices of the European Committee on legal cooperation (CCJ) who held 14 meetings and in 1970 presented a draft Convention and Protocol to the CCJ; the Committee of Ministers adopted the draft and it was opened for signature by the members of the Council of Europe on 16 May 1972.90 It came into force on 11 June 1976 and has been ratified by eight States: Austria (10 July 1975), Belgium (27 October 1975), Cyprus (10 March 1976), Germany (15 May 1990), Luxembourg (11 December 1986), the Netherlands (21 February 1985), Switzerland (6 July 1982), and the UK (3 July 1979), with one signature of Portugal.91 Its failure to be ratified by a greater number of the 46 members of the Council of Europe was due to its complexity, its requirement that the specified activities which enjoy no immunity be closely linked to the forum State, and its cautious optional regime for execution of judgments.92
The aim of the Convention was to secure to individuals the protection of law in their private law claims against States. Its novelty lay in its acceptance in treaty form of a restrictive doctrine of immunity and its imposition of a treaty obligation on States Parties to the Convention to implement voluntarily any judgment given against them. However, it was drafted by legal advisers, who had in mind not only the reform of State immunity law but also the requirements of the Brussels Convention on Jurisdiction and Recognition of Judgments. Its approach then was cautious, very much dictated by the compromises on which it was built to accommodate the differences in the legal regimes of the participating States. Although the Convention set out a number of exceptions which were broadly based on the commercial or private law distinction, it nonetheless preserved a clear residual rule of adjudicative immunity in Article 15, and it confirmed the rule of absolute immunity of States from enforced execution. The exceptions were further restricted by the incorporation of connecting links between the relationship, the subject of the proceedings, and the forum State. These links were necessary in order to ensure that the jurisdiction of the forum court was properly established in giving the judgment with which the foreign State had undertaken to comply. The rigidities of this system were softened by an optional regime implemented by a declaration under Article 24.
In negotiation of this complex compromise, experts spoke of the Convention as containing three zones: a white zone where immunity is never granted; a black zone where immunity remains as it was; and the intermediate grey zone where the question whether immunity can successfully be invoked depends on whether or not the State of the forum has made the declaration referred to in Article 24(1).93 A counterweight in respect of States which make the declaration under Article 24(1), thereby enabling their courts in conformity with the Convention to exercise jurisdiction over State activities in a wider grey zone, was introduced in Article 26 which provides that among themselves these States have no immunity from execution on property used exclusively in connection with the non-immune activity.
The Convention comprises five chapters plus a sixth chapter dealing with the final provisions relating to the signature and entry into force. Chapters I and III deal with immunity from adjudicative and enforcement jurisdiction respectively, whilst Chapter II contains procedural provisions: service of documents and time limits (Article 16), costs (Article 17), discovery (Article 18), and duplicate proceedings (Article 19). Orders for security of costs and discovery are prohibited.94 No resort to a ‘European Tribunal’ for settlement of disputes relating to the ECSI provided in an Additional Protocol has ever been made.
In parallel with the Convention regime, Chapter IV introduces the optional regime which allows, subject to specified conditions, a contracting State by declaration to enlarge the scope of proceedings treated as non-immune. Article 24 permits States to enlarge the jurisdiction of their courts,95 and Article 25 permits enforcement against State property used exclusively in relation to a non-immune commercial transaction in respect of which judgment has been given (Article 26).
In Chapter V a general provision, Article 33, affirms that nothing in ECSI shall affect existing or future international agreements in special fields, and specific exclusions are provided in respect of proceedings relating to social security, damage or injury in nuclear matters, customs duties, taxes or penalties (Article 29); the operation of seagoing ships as covered by the 1926 Brussels Convention on the Immunity of State owned Ships (Article 30); the privileges and immunities of visiting armed forces (Article 31); and the privileges and immunities of diplomatic missions and consular posts (Article 32).96
The provisions of ECSI covering in Chapter I the exceptions to immunity, Chapter II procedure, and Chapter III enforcement all apply to contracting States. Certain State agencies are distinguished from the State and, as defined in Article 27(1), are in general denied immunity. ECSI recognized the inadequacy of separate legal personality as a test for immunity but provided that although the entity might have been ‘entrusted with public functions’ if it possessed separate personality and in addition standing to conduct proceedings in its own name—‘to sue and be sued’—these two characteristics together should be determinative of its independent status and non-entitlement to immunity. Accordingly, ECSI, Article 27 distinguishes agencies of the State from its organs by excluding from the expression ‘Contracting State’ ‘any legal entity of a Contracting State which is distinct there from and is capable of suing and being sued, even if that entity has been entrusted with public functions’ and provides in Article 27(2) that proceedings may be brought against them ‘in the same manner as against a private person’ except in respect of acts performed by the entity in exercise of sovereign authority (acta jure imperii). The ECSI Explanatory Report explains:
For the purpose of defining these entities, the criterion of legal personality alone is not adequate for even a State authority may have legal personality without constituting an entity distinct from the State. On the other hand, it was considered that a dual test comprising (1) distinct existence separate and apart from the executive organs of the State and (2) capacity to sue or be sued, i.e. the ability to assume the role of either plaintiff or defendant in court proceedings, could provide a satisfactory means of identifying those legal entities in Contracting States which should not be treated as the State (paragraph 108).
Unfortunately, the above definition by discarding the ‘entrustment of public functions’ as an indicator, but restoring immunity where acts were ‘performed in exercise of sovereign immunity’ introduced new confusion, a confusion further increased by providing in Article 27(3) that in any event such proceedings may be brought against the legal entity ‘if, in corresponding circumstances, the court would have had jurisdiction if the proceedings been instituted against a Contracting State’.97
The Explanatory Report explains the wording of this last proviso: ‘Paragraph 3 provides that an entity may not enjoy more favourable treatment than a Contracting State. The overall effect of Article 27 is to deny to entities, when they are not exercising public functions, any right to treatment different from that accorded to a private person’.98
The provisions set out above in ECSI relating to immunity of legal entities were incorporated into English law in UK SIA, section 14(2)(a) and (b) to apply to ‘separate entities’, defined in section 14(1) as ‘any entity which is distinct from the executive organs of the State and capable of suing or being sued’. But the effect of these incorporated enactments which removed, partially restored, and then removed again immunity, has produced general confusion in the English courts. In Kuwait Airways Corpn the English court had to determine how the integration and operation of stolen Kuwaiti aircraft in its commercial airline by the Iraqi airline pursuant to legislation of Iraq should be classified; in one sense even though such acts were performed by a commercial separate legal entity, it was acting on the orders of Iraq and hence its acts were of a sovereign nature within ECSI, Article 27(2) (SIA, section 14(2)(a)), as two Law Lords held, but in another sense, as the majority held, its expanded operation of the airline was a commercial activity for which Iraq itself would enjoy no immunity and hence brought it within ECSI, Article 27(3) (SIA, section 14(2)(b)).99 See further Chapter 7 on UK law.
Chapter I of ECSI sets out the situations which will not attract immunity: where the impleaded State consents to the proceedings, expressed by way of institution, intervention, or the making of a counterclaim (Article 1); submission by express agreement (Article 2); or taking a step in the proceedings (Article 3). (These are further considered in Chapter 11 on Waiver.) There are also ten exceptions broadly relating to private law or commercial acts, set out in Articles 5–14. These include—in addition to the exceptions arising out of conduct of a business from an office in the forum territory and the obligation of the State, which, by virtue of a contract, falls to be discharged in the territory of the forum State—contracts of employment; company matters; patents and trademarks; immovable property; succession, gifts, and bona vacantia; injury to the person or tangible property; arbitration; and administration of a trust or bankruptcy. Each of these exceptions contains the requirement of a jurisdictional link between the impleaded foreign State and the forum State.100 The Commentary to ECSI explains the inclusion:
The list of cases incorporates a series of connecting links which are designed to prevent proceedings being instituted against a State in the courts of another State where the dispute is not sufficiently closely related to the territory of the forum to justify the exercise of jurisdiction by a court in that State. These links are also necessary to establish bases of jurisdiction which would be accepted when the foreign judgment comes to be submitted for recognition and enforcement. The connecting links themselves do not confer jurisdiction on the courts of Contracting States. Only such jurisdiction can be exercised as is already provided for by national legislation or international agreements (para 10(1)).
Instead of the firm rule of immunity subject to exceptions to be found in the UNCSI as in US and UK legislation, the ECSI introduces a slightly more nuanced position. Whilst Article 15 provides that a contracting State shall be entitled to immunity if the proceedings do not fall within the exceptions set out in Articles 1–14, Article 24 permits a State when becoming a party to deposit a notification declaring that its courts shall be entitled to entertain proceedings against another contracting State to the extent that they entertain such proceedings against a State not party to the Convention. However, ‘such a declaration shall be without prejudice to the immunity from jurisdiction which foreign States enjoy in respect of acts performed in the exercise of sovereign authority (acta jure imperii)’.101 A similar overriding condition enables a State by option to exercise jurisdiction on a basis other than the jurisdictional links specified in the Convention save on certain exorbitant bases of jurisdiction listed in an Annex. These prohibitions on encroachment into the reserved area of the exercise of sovereign authority and on exercise of jurisdiction by the forum State’s courts on an exorbitant basis were enacted to conform with the prevailing view of international law.102
The exceptions relating to private law or commercial acts
The main interest for students of the general law of State immunity lies in the formulation of the activities of a private law or commercial character which constitute exceptions to immunity from jurisdiction.
Articles 4–14 provide a catalogue of cases of non-immunity. Although the Committee of Experts initially hoped to encapsulate in one article a general description of the private acts for which immunity would not be available, the requirements for subsequent enforceability of any judgment given in respect of such acts and difference in legal systems as to the definition of public and private acts resulted in a much more fragmented approach. According to Sinclair, who was one of the lawyers in the British delegation of the Committee of Experts:
in fixing the borderline between those cases in which immunity could be claimed and those cases in which immunity could not be claimed … [t]here appeared to be three solutions: (a) to assimilate the foreign State to the position of the State of the forum before its own courts; (b) to establish a list (illustrative or exhaustive) of acts jure gestionis and of acts jure imperii; (c) to maintain, in general, the immunity of the foreign State, except for certain defined categories of activities in relation to which the State would not enjoy immunity.
In the event, it was felt that solution (a) was unsatisfactory, since it would leave the foreign State in a different legal position vis-à-vis each State seeking to exercise jurisdiction. The second solution was soon discarded, in view of the difficulty of defining sufficiently clearly the content of acts jure gestionis and acts jure imperii. The third solution is, accordingly, with some variations, the one which is reflected in the Convention. Articles 1–14 contain a catalogue of cases in which immunity cannot be claimed and Article 15 embodies the residual rule of absolute immunity.103
Articles 7 and 4 are the core articles. Here, as with all the other exceptions, the drafting is very complex and precise; any summary unavoidably omits detail and reference to the text of the Convention is recommended.
Adopting the formulation of the 1932 Harvard Project (see further below), Article 7 provides that there shall be no immunity where the defendant State engages through an office, agency, or other establishment in the forum territory in the same manner as a private person in an industrial, commercial, or financial activity in respect of proceedings relating to such activity of that office, agency, or other establishment. The restrictive scope of this Article is to some extent relieved by Article 4 which, subject to considerable exceptions,104 removes immunity from proceedings relating to an obligation of the State which, by virtue of a contract, falls to be discharged in the territory of the forum State.
The provisions relating to immunity from execution are complicated and contained in Chapters III and IV of ECSI. In summary, the conflicting views of governments on the extent to which enforcement measures could be taken by the courts of one State against the property of another State were solved, first, by a right of resort of the successful party to the court of the State failing to comply with the judgment (a form of exequatur), but leaving implementation to the law of that State (Articles 21, 22 and commentary), and secondly, by an optional regime based on declarations of the forum State and the defendant State. Where effect was sought in the State’s own court, that court was barred from reviewing the merits of the judgment given against the State. Under the optional regime, judgments in proceedings relating to an industrial or commercial activity in respect of a non-immune transaction may be notified to the Secretary-General of the Council of Europe and may be executed against property of the State used exclusively in connection with such activity (Article 26).
The catalogue of non-immune situations contained in Chapter I of the Convention has undoubtedly influenced States and their courts in the development of a restrictive doctrine of State immunity. This was confirmed by the close attention that the ICJ paid to the ECSI in its Jurisdictional Immunities judgment. Although the ICJ noted that Italy was not a party to the Convention and it was accordingly not binding upon it,105 the Court carefully considered ECSI in determining the scope of the territorial tort principle and when assessing whether there was any limitation on State immunity by reference to the gravity of the violation or the peremptory character of the rule breached.106
The authorization in ECSI, although contained in an optional regime, permitting execution against State property exclusively used for non-immune activities, has also lent a degree of respectability to forcible measures against State property. Both the FSIA and the SIA had regard to its provisions. In respect to the exception for employment contracts and with regard to enforcement jurisdiction, the Swiss Federal Court has applied to a non-contracting State a rule different from that contained in the ECSI. In doing so it has stated, in cases where the Convention is not applicable, that it will decide:
according to the unwritten rules of international law as manifested in doctrine and caselaw which for Switzerland means the jurisprudence of the Federal Tribunal. The principles embodied in the European Convention can nevertheless be regarded as an expression of the direction in which contemporary international law at the time was developing and in this sense be taken into consideration.107
When the UK decided to adopt a restrictive doctrine of immunity, the enabling legislation initially followed closely the scheme of the ECSI. This was done in part to enable the UK to ratify the Convention. In the course of parliamentary debate, however, several of the exceptions were altered. Articles 4 and 7 were replaced by a much more sweeping section 3, which removed immunity for commercial transactions, although subsection 3(1)(b) retained as an additional non-immune category contractual obligations of the State to be performed in the UK.
Little use appears to have been made by judgment creditors of the special procedure to determine the existence of a State’s obligation to give effect to a judgment or of recourse to the European Tribunal. This is perhaps not surprising, as their outcome does not secure funds to satisfy the judgment, but merely provides another procedural stage for delay and incurring of costs.
The lengthy discussions over some 20 years in the ILC and UN before reaching a consensus on the modification of the immunity from execution highlight the considerable achievement of the Committee of Experts of the Council of Europe in finding in 1972 a solution, however flawed, to similar conflicts of view over the permissible limits of forcible execution on State property. Article 26 of UNCSI expressly provides that nothing in it ‘shall affect the rights and obligations of States Parties under existing international agreements which relate to matters dealt with in the present Convention as between the parties to those agreements’. Nonetheless, the UN regime will probably supersede the European regime once it enters into force.108
Given the sparse authority in treaty or the rulings of international tribunals, the practice of States with regard to their own national legal systems was the main source of the law of State immunity until the end of the twentieth century. Of the three major forms of such State practice—acts of the executive, legislation, and decisions of national courts—the last two have provided the main source of the law. In the late 1970s both the US and the UK enacted statutes establishing general regimes of State immunity and the specificity which this legislation introduced into the subject calls for separate consideration which will be found in Chapters 7 and 8 below.
Projects for codification by governmental and non-governmental bodies, culminating in the ILC’s 1991 Draft Articles on Jurisdictional Immunities of States and their Property have undoubtedly influenced the articulation of rules relating to State immunity and the adoption of a restrictive rule.
Projects by governmental bodies have been useful in affirming the restrictive doctrine, but have not—unlike the projects by non-governmental bodies examined below—generated discussion on the development of the law in this area. The Bustamente Code of Private International Law, adopted by the Sixth International Conference of American States in 1928 in Havana, provided in Article 335 that courts were competent to take cognizance of cases where a foreign contracting State or its head had acted ‘as an individual or private person’.109 Other projects include the work of the League of Nations Sub-Committee on ‘Competence of the Courts in regard to foreign States’,110 the Asian/African Legal Consultative Committee’s Final Report,111 and the Inter-American draft Convention on Jurisdictional Immunities of States.112
The content of three non-governmental drafts are summarized here both by reason of the part they played in the development of the modern doctrine and as a source of discussion for issues that are still not fully resolved. Reference to their proposals on specific topics is made when that topic is under discussion. They comprise the Harvard Research Project, the 1982 draft Montreal Convention of the International Law Association (ILA), revised in 1994, and the four resolutions of the Institut de Droit International.
The Harvard Project published in 1932 is a much cited comprehensive report on the ‘Competence of Courts in regard to Foreign States’ with Philip Jessup, later a Judge of the ICJ, as Rapporteur.113 Its survey of the case-law of some 30 jurisdictions showed considerable diversity of practice, but the Report nevertheless advocated a restrictive doctrine. It proposed a convention containing liberal rules as to waiver of immunity by conduct in the course of the litigation, prior agreement, or treaty (Article 8) and, in addition to the established exceptions for immovables, succession, and gifts, proposed exceptions for engaging in a business enterprise within the forum State territory in which a private person may engage (Article 11) and claims relating to the rights of owners of shares in a corporation or other association for profit organized under the laws of the forum State (Article 12). Article 11 is of particular interest as a predecessor of the tort exception for personal injuries caused in the territory of the forum State now to be found in UNCSI, Article 12. It reads: ‘A State may be made a respondent in a court of another State where in the territory of such other State, it engages in an industrial, commercial, financial or other business enterprise in which private persons may there engage, or does an act there in connection with such an enterprise wherever conducted, and the proceeding is based upon the conduct of such enterprise or upon such act’. Thus it appears that damage sustained and claimed independently of any contractual relation might not attract immunity if arising from the conduct of such a business enterprise. The removal of immunity from claims based on delict or tort was not, however, directly addressed in the Harvard project.
The proposed convention included stringent rules requiring the foreign State’s conformity with the procedure of the courts of the forum State, including production of evidence (Article 18). Limited enforcement was advocated against the property of a State, not used for diplomatic or consular purposes, where it was an immovable, or used in connection with the conduct of a business enterprise (Article 23), for which an exception to immunity was permitted by an earlier article (Article 11). Punitive damages were prohibited and such enforcement as was permitted was only to take place after notification and adequate opportunity was given to the State to object (Article 25). The accommodation of foreign States’ interests with those of the forum State and the latter’s maintenance of friendly foreign relations was the underlying focus of the project. The private litigant’s interest was of secondary importance and the modern emphasis on the need to distance the local courts from the executive and to ensure the independence of the judiciary was wholly absent.114 The Harvard Project was drawn on in the preparation of both the ECSI of 1972 and the US FSIA of 1976.
Motivated by the view that ‘the principle of immunity from suit is becoming obsolete in cases where the States enter into commercial enterprises or other acts of the nature of private law’, the International Law Association (ILA) adopted a Convention at the ILA Montreal Conference of 1982,115 largely modelled on the UK State Immunity Act. As regards immunity from adjudication, the draft Convention limited the general rule of immunity to acts in exercise of sovereign authority and included all the exceptions to immunity provided in the UK SIA as well as an exception on the lines of that in the US FSIA for property taken in violation of international law116 (Article IIIG). The ILA draft Convention differed from the UK model in intentionally leaving a gap, ‘a crack of daylight’, between what is immune (acta jure imperii) and what is not (commercial activity and other exceptions) and placing the burden of proof on the State to establish immunity from adjudication (but not in respect of immunity from execution where the general rule remained one of immunity). This change of emphasis distinguished it from the FSIA where failure on the part of the State to prove that the alleged activity was in exercise of sovereign authority results in the court exercising jurisdiction on the basis of the activity’s commercial nature, and from the UK SIA which adopts a dichotomy. With cases falling into the gap it was hoped that ‘a certain leeway would be left for the development of the law in what was regarded as a liberalizing direction, i.e. in the direction of narrowing the scope of immunity’.117
The removal of immunity from enforcement jurisdiction was more detailed and liberal than in the UK SIA, permitting execution against property which had been taken or exchanged for property in violation of international law, of mixed funds,118 and in exceptional circumstances, permitting pre-judgment attachment and injunctive relief on proof of a prima facie case that such assets will be removed with a consequent reasonable prospect of frustration of satisfaction of any judgment obtained (Article VIII A.3 and D).119
A reappraisal in the 1990s by an ILA committee with Monroe Leigh, former Legal Adviser to the US State Department, as chairman, and Professor Georg Ress as Rapporteur, put forward some minor amendments to the text of the draft Montreal Convention,120 which were approved by the 1994 ILA Buenos Aires Conference. The principal amendment related to the exception to immunity for personal injuries, extending it to include an act or omission having ‘a direct effect in the forum State’.121 The final Report accompanying the revised text concluded that the draft Montreal Convention still provided ‘a set of (better) principles and alternative and perhaps sometimes better solutions than the ILC draft’. Its text was in line with the requirements of commercial investors with its authorization of pre-judgment attachment of State property, though having no connection with the subject-matter of the claim, in advance of State practice.
The ILA draft Montreal Convention took account of defects which the case-law exposed in the ECSI and in the English and US statutes, and its provisions were expressed clearly without the ambiguities to be found in the ILC Draft Articles. The proposal of the ILA to allow pre-judgment attachment of State property has been adopted in Article 18 of the 2004 UNCSI, but there is a requirement that the State has ‘allocated or earmarked property for the satisfaction of the claim which is the object of that proceeding’.
Attractive though the substance of the ILA proposals may be, it has to be recognized that they expressed the Western developed States’ wish for increasing restriction of immunity and with their proposals on execution and extension of national courts’ jurisdiction over extraterritorial delicts committed by States they go further than current State practice supports.
The Institut de Droit International has directly addressed the topic of State immunity on four separate occasions between 1891 and 2009, and in 2001 it adopted a resolution relating to the immunities of heads of State and heads of government. Throughout its discussions on State immunity its resolutions have to date confirmed a restrictive approach to State immunity from adjudication of the local courts, with the rejection of forcible measures of execution against any State property other than assets located within the forum State and clearly allocated for commercial use. A great variety of views have been expressed by the members of the Institut on all four occasions when State immunity was debated, the discussions on the third and fourth occasion being particularly prolonged.
In the first discussions, the Rapporteur L de Bar in recommending further exceptions noted that the absolute doctrine itself permitted certain exceptions. Accordingly, on his proposal the Institut’s Hamburg Resolution of 11 September 1891122 set out three exceptions to immunity from adjudication in addition to the recognized ones for immovables, succession, and waiver by conduct. They were: for claims connected with a commercial or industrial enterprise (établissement) or railway exploited by the foreign State in the territory; for claims arising out of contracts concluded by a foreign State within the territory, if full execution could be demanded in that territory as a result of an express clause or by reason of the nature of the action itself; and for damages for a tort or quasi tort committed in the territory.123 Immunity was expressly preserved for acts of sovereignty and public debt. It was provided that there should be no attachment of movables or immovables directly in use of the service of the State but execution was allowed, subject to adequate notice, in respect of property expressly given as security for payment of a debt; personal sovereigns and heads of State were to enjoy the same immunity as the State from attachment. De Bar recommended that service of all attachments and proceedings should be on the embassy of the sending State in the forum territory or, if no embassy, on the State’s Minister for Foreign Affairs; although he argued that notice was purely for information and not a coercive measure, the majority favoured limiting notice to diplomatic channels.124
The second resolution of the Institut on ‘L’immunité de juridiction et d’exécution forcées des Etats étrangers’ was finalized at its Aix session in 1954 although the Rapporteur, Lemonon, had prepared his initial report before the outbreak of the Second World War. He identified two theories: the absolute, supported by the UK and the US, and the restricted, as evidenced by the case-law of France, Germany, Belgium, the mixed Tribunal of Egypt, and Italy.125 There was lengthy discussion as to the definition of a State which resulted in a provision in Article 1 that immunity be enjoyed for claims relating to acts of sovereign power (actes de puissance publique) performed by a foreign State or by a separate legal person acting on that State’s behalf. De La Pradelle submitted that the history of immunities is its continuous abolition but urged that such abolition must not be for the benefit of local jurisdiction but for international justice.126 No criterion was provided for distinguishing sovereign acts from commercial acts; but interestingly, as a contribution to the continual debate as to the applicability of the law of the foreign or the forum State, the determination of whether the act is not in exercise of sovereign power was declared to be for the lex fori (Article 4). There was express prohibition of forcible execution or interlocutory attachment (saisie conservatoire) over goods which are the property of a foreign State if they are allocated for the exercise of non-commercial governmental activity.
The third Resolution of the Institut was adopted in 1991.127 Ian Brownlie sought novel solutions in his report and draft resolution on ‘Recent Aspects of Jurisdictional Immunities of States’. The Resolution as presented for debate at the Cairo meeting in 1987 sidestepped immunity as a personal bar and focused on the nature of the claim, the appropriateness of which was to be determined not by the distinction into acts jure imperii and jure gestionis, but by two lists of criteria indicating competence or incompetence of the legal system of the forum State. These criteria (which broadly reiterated but also enlarged the accepted categories of public and private acts) were also to be applied to determine what property of the State was subject to or exempt from execution; the immunity of transactions, property of State agencies, and political subdivisions of a State were also to be determined by the same criteria. A further article stated that immunity could be waived by various forms of specified express consent. The Resolution was declared to be without prejudice to immunities ratione personae of heads of State, government ministers, or heads of diplomatic missions.
Brownlie’s general approach was original and far-sighted, but too advanced for the thinking of the time so that it provoked fierce opposition. He sought to identify three closely related issues: immunity or incompetence ratione materiae where the court was deprived of jurisdiction by the nature of the claim; subject-matter jurisdiction which depended on the claim having sufficient jurisdictional connection with the forum State; and immunity ratione personae which he described as more in the nature of a privilege barring suit despite the presence of both competence and subject-matter. His identification of State immunity as competence ratione materiae was severely criticized as confusing the procedural immunity attached to the State as a party to litigation with non-justiciability, act of state, forum non conveniens, and applicable law. He was held to have paid too much attention to the common law doctrine of act of state, a defence unrecognized in the civil law and based on internal constitutional requirements.
Some critics complained that he misused the precise language of private international law, and by referring to competence of the whole internal legal system wrongly included legislative jurisdiction in a topic which ought properly to be confined to judicial jurisdiction. Whilst Brownlie himself criticized the restrictive doctrine as one-sided and only stating by way of exception non-immune acts, his own attempt to redress the balance by stating the acts where the domestic court was incompetent was challenged as over-exclusive, removing issues of international law over which domestic courts were entitled and did in fact exercise competence. Debated at two sessions, Cairo 1987 and Saint-Jacques-de-Compostelle in 1989, the Resolution on ‘Contemporary Problems Concerning the Immunity of States in Relation to Questions of Jurisdiction and Enforcement’, much modified and qualified by numerous reservations, was finally adopted at Basel in 1991, with eight abstentions and Professor Doehring and Dr Mann voting against. The revised Resolution was confined exclusively to competence before courts or quasi-judicial bodies before whom the State was a defendant and immunity ratione personae was declared a separate ‘significant consideration of public international order which renders immunity ratione materiae inappropriate’. Brownlie’s indicia were merged into one article with those indicating incompetence demoted to a position after the indicia of competence which, apart from the novel ‘transactions based on good faith and reliance (legal security)’, differed little from those to be found in the UK and Australian legislation. Extensive savings clauses were attached excluding any application of the resolution to diplomatic immunity, the operation of act of State in common law jurisdictions, or recognition as a matter of private international law of foreign governmental acts.
National courts have to date made little use of Brownlie’s approach as set out in this third Institut Resolution, with the notable exception of the New Zealand Court of Appeal in the Winebox case.128 In 1999 the ILC working group brought the Resolution to public notice by citing it in connection with its discussion of how to resolve the wide divergences of viewpoint as to the definition of a commercial activity.129 With the increasing reception of international norms into national legal systems and the problems of determining which of competing conventions should be accorded primacy by national courts, the indicia in the ‘balancing’ proposals of Brownlie may call for further consideration.130
The fourth Resolution was adopted in 2009 after a short debate in the 2007 Santiago meeting and three days of discussion in the 2009 Naples session. The subject was ‘Immunity from Jurisdiction of the State and of Persons Who Act on Behalf of the State in case of International Crimes’. The Resolution’s proposals on State immunity were restricted to the violation, as defined by the Committee in its original draft, of ‘fundamental human rights constituting crimes recognised by the international community as particularly grave’ such as torture under the 1984 UN Torture Convention, crimes against humanity, grave breaches of the 1949 Geneva Conventions for the protection of war victims, and genocide.131 The draft Resolution was divided into three parts. The first part of the lex lata section comprised a list of the persons acting on behalf of the State who enjoy personal immunity as conferred by international conventions or international customary law, including the head of State, head of government, members of central government when on a special mission, members of permanent missions to international organizations, members of the diplomatic and consular mission when present in a receiving State or in transit. It was provided that in respect of such persons on their vacation from office or mission such personal immunity ceased, but functional immunity subsisted save for acts which constituted the grave violations of human rights as defined in the draft Resolution. The second part of the lex lata section provided that the exception to immunity of the State in the 2004 UNCSI for proceedings for loss of life and personal injuries and damage or loss to tangible property extended to acts constituting such grave violations of human rights as defined in the draft Resolution committed by a State on the territory of the forum State. The third de lege ferenda section of the draft Resolution provided that a State may not enjoy immunity for violation of the fundamental rights of the person as defined in the draft Resolution wherever committed, unless it was established that the State had made reparation in accordance with the applicable international convention or customary international law.
The complexity of the proposals contained in these three parts led to much discussion and differences of opinion.132 In the course of the debate (a full account of which is provided by Jean Salmon a member of the committee proposing the resolution),133 the definition of persons enjoying personal immunity was deleted as irrelevant to the main object. As to the proposed extended exception to State immunity in respect of acts committed on the territory of the forum State constituting grave violations of human rights, members of the Institut were almost equally divided as to whether the article should be expressed as current law (22 for, 9 against, 18 abstentions) or in terms of de lege ferenda (17 for, 19 against, 15 abstentions); further it was questioned whether, without the clarification of its jurisdictional and factual basis and application to situations of armed conflict, such a rule of immunity could be validly stated. Similar division of opinion among members and difficulties of drafting were also raised as regards the proposal de lege ferenda. Accordingly, in the discussion on the following day, 9 September, and despite some opposition, the Plenary, on a proposal supported by the Rapporteur, voted to delete both the second part and third parts of the draft Resolution in its entirety. There remained, therefore, in addition to the articles relating to definitions and general principles, a substantive provision, Article III, relating to the immunity of persons who act on behalf of the State (adopted by 46 votes for, one against, and five abstentions), and in Article IV a without prejudice clause relating to the immunity of the State from jurisdiction before national courts of another State in civil proceedings relating to the commission of an international crime.
Accordingly, the 2009 Naples Resolution as adopted in plenary by 43 votes in favour, 0 against and with 14 abstentions reads as follows:
The Institute of International Law,
… Conscious that under conventional and customary international law a State has an obligation to respect and to ensure the human rights of all persons within its jurisdiction;
Considering the underlying conflict between immunity from jurisdiction of States and their agents and claims arising from international crimes;
Desirous of making progress towards a resolution of that conflict;
Recognizing that the removal of immunity from proceedings in national courts is one way by which effective reparation for the commission of international crimes may be achieved;
Adopts the following Resolution:
Article I: Definitions
1. For the purposes of this Resolution ‘international crimes’ means serious crimes under international law such as genocide, crimes against humanity, torture and war crimes, as reflected in relevant treaties and the statutes and jurisprudence of international courts and tribunals.
2. For the purposes of this Resolution ‘jurisdiction’ means the criminal, civil and administrative jurisdiction of national courts of one State as it relates to the immunity of another State or its agents conferred by treaties or customary international law.
Article II: Principles
1. Immunities are conferred to ensure an orderly allocation and exercise of jurisdiction in accordance with international law in proceedings concerning States, to respect the sovereign equality of States and to permit the effective performance of the functions of persons who act on behalf of States.
2. Pursuant to treaties and customary international law, States have an obligation to prevent and suppress international crimes. Immunities should not constitute an obstacle to the appropriate reparation to which victims of crimes addressed by this Resolution are entitled.
3. States should consider waiving immunity where international crimes are allegedly committed by their agents.
Article III: Immunity of persons who act on behalf of a State
1. No immunity from jurisdiction other than personal immunity in accordance with international law applies with regard to international crimes.
2. When the position or mission of any person enjoying personal immunity has come to an end, such personal immunity ceases.
3. The above provisions are without prejudice to:
(a) the responsibility under international law of a person referred to in the preceding paragraphs;
(b) the attribution to a State of the act of any such person constituting an international crime.
Article IV: Immunity of States
The above provisions are without prejudice to the issue whether and when a State enjoys immunity from jurisdiction before the national courts of another State in civil proceedings relating to an international crime committed by an agent of the former State.
This chapter has reviewed the sources of the law of State immunity and surveyed the relevant treaties and projects for codification. Although significant progress has been made in defining the principles and limits of State immunity through codification, there are still areas of uncertainty. The next chapter deals with the actual practice of States and what it reveals about the restrictive doctrine of State immunity.