General Aspects
The sources examined in the previous four chapters make apparent the diversity of State practice giving effect to the international doctrine of State immunity. One way to overcome this diversity is by codification in the form of legally binding rules which may be incorporated into national legislation or directly applied by national courts as municipal law. The only sustained effort to bring about such a universal codification is to be found in the task which the UN agreed the International Law Commission (ILC) should undertake and which, as a result of the ILC’s work, culminated in the 1991 Draft Articles on Jurisdictional Immunities of States and Their Property. As a source of international law applicable to State immunity, even in its unfinished state, that 1991 ILC Draft stood, as Brownlie recognized, ‘as a candidate for public reaction, approving or not as the case may be; they may stand for a threshold of consensus and confront states in a significant way’.1 Now that the provisions of the 1991 ILC Draft with some amendments are incorporated into the UN Convention on Jurisdictional Immunities of States and their Property (UNCSI) and have been adopted by the UN General Assembly in 2004, and ratified (as at 2013) by 14 States, they constitute a significant stage in the harmonization and articulation of the international law of State immunity.
This chapter provides a general description of UNCSI, the travaux préparatoires relating to the ILC’s work and the discussions in the UNGA Sixth (Legal) Committee, and the exclusions, omissions, final clauses, as follows:
(1) the legislative history: the ILC’s work and its consideration in the UN;
(2) the status of the Convention;
(3) the Convention’s relation to other international conventions;
(4) interpretation of the Convention;
(5) the structure of the Convention;
(6) the general rule of immunity in the Convention;
(7) the exclusions and matters omitted from the Convention;
(8) a general assessment of the Convention;
(9) implementation by States who have ratified the Convention.
In 1977 the UN General Assembly decided to include in the work programme of the ILC the topic of the jurisdictional immunities of States and their property. Professor Sompong Sucharitkul of Thailand was appointed Special Rapporteur2 and between 1979 and 1986 he produced eight reports and proposals for draft articles.3 These were debated in the Commission and the Sixth (Legal) Committee of the United Nations General Assembly to whom the Commission made an annual report of its work. On 29 June 1986 a first draft was adopted on a first reading by the Commission.4 An extensive review of State practice (court decisions, legislation, treaty, proposals for codification, and juristic writing) was carried out throughout the reports. Materials received from governments in response to a questionnaire were published in a 1982 volume of the UN legislative series.5 A number of criticisms were made in the course of the Commission’s deliberations of the work of the first Special Rapporteur; he was accused of placing too much reliance on the practice of a limited number of Western developed States and ignoring the continued observance of absolute doctrine not only in the USSR and satellite countries but in countries in Asia, Africa, and South America.6
Professor Motoo Ogiso of Japan took over as Special Rapporteur in 1988 and published three reports. He described the ILC’s Draft as ‘a formulation that a State enjoys immunity from the jurisdiction of the court of another State with certain limitations/exceptions’7 and indicated that its present framework offered a fair compromise between countries favouring a restrictive theory and those which favoured the so-called absolute theory. In his first report he analysed the comments of governments (23 of whom replied) and made his own recommendations on how best to reconcile their differences. In the second report, responding to requests of governments, he supplied a further brief account of the development of a restrictive rule of immunity and expressed his own views as to the present state of international law. He declared that it could no longer be maintained that the absolute theory was a universally binding norm of customary international law; but it was to be presumed that international law contained a norm limiting the freedom of States to deny immunity to other States. However, the problem of the scope of the limitations on this freedom had not been resolved to permit a precise formulation which would meet general consensus. Absence of such consensus was one of the reasons why adherents of the absolute immunity doctrine were hesitant to accept the restrictive trend. Adherents of the restrictive doctrine proposed a distinction between acta jure imperii and acta jure gestionis, but ‘there is no single, generally accepted meaning of either’. In the third report, taking into account the views of members of the Commission and the debates in the Sixth Committee, he finalized his proposals for certain amendments to the first draft.8 Finally in 1991 the revised ‘second reading’ draft of the Jurisdictional Immunities of States and Their Property was adopted by the Commission and submitted to the UN General Assembly.9
In the Sixth Committee of the UN General Assembly the Draft had a mixed reception and governments were given an opportunity to comment on its proposals by 1 July 1992. Some 19 States responded and their critical views were referred to an open-ended Working Group set up by the Sixth Committee to consider outstanding substantive issues and the question of convening a conference. In 1994 the General Assembly Sixth Committee approved in principle the recommendation of the ILC to convene an international conference to adopt a convention on jurisdictional immunities of States, but in the meanwhile continued to refer the matter to the consideration of ad-hoc working groups. Mr G Hafner described the atmosphere at that time:
The communist system, which was very much in favour of the absolutist theory of immunity, had largely broken down but it was not clear how any new system would develop. During the consultations under Carlos Calero-Rodrigues, some surprising proposals were made but this is, perhaps, understandable in retrospect given that many of the countries who made them were in transition and did not know how things were likely to develop. They did not know how they should seek to protect state enterprises against court actions. They tried, therefore, in their proposals to reconcile traditional theories of absolute immunity with modern tendencies. The wide participation by many States in these consultations (the room set aside for this purpose was always packed) showed, on the other hand, a wide interest by States, including developing countries, in some form of agreed regulation of this issue. At that time there was a general recognition of the need to come to some generally accepted solution. One could discuss whether this interest was the result of an increased engagement by States in economic matters or the result of privatisation of many enterprises, formerly in State hands. Uncertainty as to future development, coupled with an expectation that the restrictive approach would be consolidated over time, was perhaps the reason why, at that stage, discussions could not be brought to a successful end in the early 1990s.10
The working Groups under the chairmanship, first of Mr Carlos Calero-Rodrigues (Brazil) 1992–98,11 and secondly Mr Gerhard Hafner (Austria),12 identified five outstanding issues on which states were divided. These were:
(i) the concept of a State for the purposes of immunity in the definition article;
(ii) criteria for determining the commercial character of a contract or transaction;
(iii) the concept of a State enterprise or other entity in relation to commercial transactions;
(iv) contracts of employment; and
(v) measures of constraint against State property.
In 1999 Mr Hafner added two further items to the list: ‘(vi) the possible form which the outcome of the work should take. Differing views as to a convention, a model law, or guidelines were expressed; (vii) the existence or non-existence of immunity in the case of violation of jus cogens norms.’13
The five problem areas identified in the working groups set up by the UNGA Sixth Committee and discussions as to their resolution are dealt with in subsequent chapters as follows: the concepts of a State in the definition article and of a State enterprise or other entity in relation to commercial transactions in Chapter 10, the criteria for determining the commercial character of a contract or transaction and contracts of employment in Chapters 12 and 14, and measures of constraint against State property in Chapters 16 and 17.
In 1999, exceptionally, the topic was referred back to the ILC which, at the invitation of the General Assembly and having regard to the deliberations of the Working Group and in the Sixth Committee and recent developments of state practice, presented its comments and suggestions on the five outstanding issues. The Commission attached to its comments an Annex in respect of immunity relating to death or personal injury resulting from acts of a State in violation of human rights having the character of jus cogens, particularly the prohibition of torture.14
In 2000 the General Assembly urged States which had not provided comments on the current proposals to do so and determined that the open-ended Working Group to which specialized agencies were invited to contribute should meet in 2002 ‘to consolidate areas of agreement, resolve outstanding issues with a view to elaborating a generally acceptable instrument’ based on the ILC Draft Articles and the conclusions of the Working Group.15 In 2002, the Working Group, in addition to reaching compromise solutions on the five outstanding issues, published a revised text with proposed alternatives for the unresolved issues in Articles 2, 10, and 11, and amendments to the without prejudice article relating to other immunity regimes (Article 3) and the exceptions for State-owned or operated ships and arbitration agreements (Articles 16 and 17).16 Earlier the Working Group had decided that ‘the question of the existence or non-existence of immunity in the case of violation by a State of jus cogens norms of international law’, as referred to by the 1999 ILC report, ‘did not really fit into the present draft articles’ and did not seem ripe enough … to engage in a codification exercise over it’.17 In 2003 (23 February 2003, AC.262/L.4), the Working Group, after dividing discussion into two groups coordinated by Chusei Yamada (Japan) and Michael Bliss (Australia), finalized the text, with the previous alternatives deleted but with Understandings to some of the provisions presented as an Annex to the Draft Convention. On 25 October 2004, the UN Sixth Committee met and, having considered the report of the ad hoc committee and the statement of its Chairman, Mr Hafner, recommended that the General Assembly adopt the final text as a convention.
The above account shows how laborious and uncertain was the progress of the ILC’s 1991 Draft to a successful conclusion as an international convention adopted by the UN General Assembly. Throughout the discussion in the Sixth Committee there remained considerable diversity of view and lack of clarity as to the benefits and disadvantages of a codification of the law relating to State immunity. Some developing States and those States which had only recently abandoned an absolute doctrine or were still in the process of moving to a restrictive doctrine of immunity, looked to the plea of State immunity as providing an essential protection for the immature State player against the sophisticated market devices of the experienced multinational corporation. Even with the doctrine in operation, to obtain a deal small States were often required to waive their immunity. States whose courts had operated a restrictive doctrine for the past 30 years or more recognized that the retention of the plea in respect of contractual arrangements created legal insecurity and discouraged foreign investment. Yet they shared with developing States a considerable disquiet at recent moves to modify the plea in respect of tortious or criminal proceedings and to remove immunity for acts performed by State officials in the course of their official functions. Despite increasing acceptance of the rule of law in the exercise of governmental acts there was little willingness to abandon State immunity in matters relating to the internal administration of the State, decision-making as to foreign relations, and matters giving rise to State responsibility.18 And those States with domestic legislation were reluctant to accept any text that contradicted their domestic law.
The discussions in 2003, 2004, and 2005 in the Sixth Committee showed increasing support for the adoption of the ILC’s Draft Articles in the form of a legally binding instrument; the comments of the People’s Republic of China were particularly significant when it said that the ILC Articles
would provide a solid basis for States to adopt a uniform norm of international law on this topic; … an international rule adopted for such an important subject should be legally binding and operational, so that it could be applied directly by national courts in dealing with relevant cases.19
Other States, such as France and Norway, urged the adoption of a convention because they had a tradition of not legislating in the field of immunities and needed, for their courts, the clarity that only a convention could bring.20
In 2004 delegates in the Sixth Committee emphasized that the Draft Convention constituted ‘a compromise text which reflected a delicate balance designed to achieve consensus. In this regard it was noted that the draft Convention effectively balanced the interests of the developing and developed States. While some delegates noted that the certain provisions did not fully meet their expectations they favoured the adoption of the text as a whole.’21 There was certainly no general view in 2004 among either developed or developing States that State immunity no longer served any useful purpose. Recent proceedings had given rise to conflicting assertions of jurisdiction by national courts and increased support for the adoption of an international agreement open to all States setting out in detail the international rules applicable to State immunity by which such disputes might be resolved.
By resolution 59/38 dated 2 December 2004 the General Assembly adopted the UN Convention on Jurisdictional Immunities of States and their Property. The Convention includes in an Annex the Understandings with respect to certain provisions. See the Appendix at the end of this book.
In accordance with Articles 28 and 33, the Convention was opened for signature by all States from 17 January 2005 until 17 January 2007. At that date there were 28 signatories. As of June 2013, 14 States had ratified the Convention.22 The Convention will come into force in accordance with Article 30 which reads:
1. The present Convention shall enter into force on the thirtieth day following the date of deposit of the thirtieth instrument of ratification, acceptance, approval or accession with the Secretary-General of the UN.
2. For each State ratifying, accepting, approving or acceding to the present Convention after the deposit of the thirtieth instrument of ratification, acceptance, approval or accession, the Convention shall enter into force on the thirtieth day after the deposit by such State of its instrument of such ratification, acceptance, approval or accession.
The Convention contains no provision as to the making of reservations on signature or ratification. Article 31 provides for denunciation and by Article 32 the UN Secretary-General is designated the depositary for the Convention.
The UN Convention in its final clauses contains no provision as to its territorial application. In consequence, on ratification, as is the UK practice, a State may consider it advisable to specify the extent to which its consent extends beyond its metropolitan territory to its overseas or other possessions. Such specification has disadvantages, as with the so-called ‘colonial’ article employed prior to 1959, in that it requires a State to indicate the authorities in dependent territories to whom the immunities provided in the 2004 UN Convention will apply. A State, therefore, may prefer to rely on the residual rule as set out in the 1969 Vienna Convention on Treaties, whereby ‘unless a different intention appears from the treaty or is otherwise established a treaty is binding upon each party in respect of its entire territory’.23
UN Convention
Article 4
Non-retroactivity of the present Convention
Without prejudice to the application of any rules set forth in the present Convention to which jurisdictional immunities of States and their property are subject under international law independently of the present Convention, the present Convention shall not apply to any question of jurisdictional immunities of States or their property arising in a proceeding instituted against a State before a court of another State prior to the entry into force of the present Convention for the States concerned.
Article 4 provides that, without prejudice to the application of applicable customary international law on the topic, the provisions of the Convention are not to apply to any proceeding before a court of another State prior to its entry into force for the States concerned. The commentary explains that such non-retroactivity only applies to court proceedings, not to diplomatic negotiations relating to a possible violation of an international obligation to accord State immunity, and does not affect the general rule of retroactivity under Article 28 of the 1969 Vienna Convention on Law of Treaties (VCT). The article has met with general approval, with some States wishing to extend the exclusion even wider to include prior consent of the parties relating to a transaction.24 The wording in Article 4 seems clearly to link the ratione temporis exclusion exclusively to the institution of proceedings, and does not bar the Convention’s provisions from applying to submission to the jurisdiction or consent to enforcement made by a State prior to the entry into force of the Convention but relied upon in proceedings instituted subsequent to that date. Article 16(1) supports the latter in that, in respect of the exception to immunity for ships owned or operated by a State used for other than government non-commercial purposes, it states as the date for the ascertainment of the private law nature of the ship’s operation ‘if, at the time the cause of action arose, the ship was used for other than non-government non-commercial purpose’.
It is possible that a State when ratifying the Convention may consider it necessary to make more detailed provision for the application of the Convention to proceedings in its national courts. The UK legislation introducing a restrictive doctrine into English law contained a provision similar to that in the Convention but also covered prior agreements relating to submission. Thus the State Immunity Act 1978 (SIA) came into force for the UK on 22 November 1978 (SI 1978/1572). Section 23(3) provides that, subject to subsection (4), Parts I and II of the Act (relating to immunity from adjudication and enforcement) do not apply to proceedings in respect of matters that occurred before the date of the coming into force of the Act, and in particular do not apply to any prior agreement as to submission to the jurisdiction (section 2(2)) or consent to enforcement (section 13(3)), or to any contract (section 3), contract of employment (section 4) or arbitration agreement (section 9) entered into before that date.25 Section 23(4) provides that the procedure for service of process and judgments in default of appearance set out in section 12 shall apply to proceedings instituted after the coming into force of the Act.26 Section 23 was applied in Planmount Ltd v Republic of Zaire27 where, as proceedings were instituted on 16 May 1979, that is, after the date of entry into force of the SIA on 22 November 1978, it was held that section 12 applied, even though the proceedings related to matters which occurred before that date.28 The FSIA, in contrast, is silent on its temporal application, but the Supreme Court held in 2004 that it does apply retroactively.29
The Convention is not yet in force. As of June 2013, 28 States including China, India, Japan, Iran, the Russian Federation, Switzerland, and many of the members of the European Community including France, Sweden, and the UK had signed, and 14 States—Austria, France, Iran, Italy, Japan, Kazakhstan, Lebanon, Norway, Portugal, Romania, Saudi Arabia, Spain, Sweden, Switzerland30—had ratified the Convention. At two informal meetings of the Parties to the ECSI held in 2006, most of the participants confirmed that they were proceeding towards ratification of the UNCSI and were of the view that the UN Convention should supersede the European Convention. They concluded that the clearest and most straightforward approach would be for each party to the European Convention to denounce that Convention at an appropriate time once it had ratified the UN Convention and it had come into force.31
Reference to UNCSI is now made increasingly in decisions of international tribunals and national courts. In particular, the ICJ in the Jurisdictional Immunities case between Germany and Italy, although careful to point out that UNCSI as not being in force between the parties to the proceedings was ‘relevant only in so far as their provisions and the process of their adoption and implementation shed light on the content of customary international law’ (para 66), nonetheless cited in full UNCSI, Article 12 (tort exception) at para 69, Article 19 (post-judgment measures of constraint) at para 116 and Article 6(2) at para 129 in support of its rulings.32 The ECtHR stated in a 2013 case that the provisions of UNCSI ‘apply under customary international law, even if the State in question has not ratified that convention, provided it has not opposed it either’.33. National courts also now increasingly refer to UNCSI as in Jones v Saudi Arabia where the English House of Lords in applying immunity in respect of a claim against officials for torture committed in the prison of a foreign State abroad, Lord Bingham relied on a dictum that:
[the Convention’s] existence and adoption by the UN after the long and careful work of the International Law Commission and the UN Ad Hoc Committee on Jurisdictional Immunities of States and Their Property, powerfully demonstrates international thinking on the point.34
Later in the same judgment Lord Bingham stated: ‘Despite its embryonic status, this Convention is the most authoritative statement available on the current international understanding of the limits of state immunity in civil cases.’35
Article 26
Other international agreements:
Nothing in the present Convention 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.
This article was added by the Ad Hoc Working Party at a late stage in March 2004. The Chairman had proposed a wider clause covering ‘existing or future international agreements in special fields or of a regional or sub-regional nature which relate to matters dealt with in the present Convention’ but this was not accepted.36 The preamble to the Convention, however, stresses that ‘the rules of customary international law continue to govern matters not regulated by the provisions of the present Convention’.
Article 26 excludes the conventions prior in date relating to diplomatic and consular relations and other conventions as set out under the exclusion relating to criminal proceedings, footnote 94 below. Other conventions relating to immunities such as those relating to Status of Forces Agreements and warships in the territorial sea would also remain unaffected. The 1926 Brussels Convention relating to the Immunity of State-Owned Vessels and the 1934 Protocol are also excluded though ships owned or operated by States are dealt with separately in Article 16 which broadly re-enacts the provision of the 1926 Brussels Convention by removing immunity from state ships in commercial use and from cargoes carried in such ships but does not enact the special rules of the earlier convention concerning liability in proceedings relating to the operation of such ships (Article 16(5)). Future conventions are not covered; any convention agreed after 2004 relating to State immunity will need to make express provision for its effect on the 2004 UN Convention.37
The position as to the 1972 European Convention on State Immunity is more complicated as it has its own provision dealing with other international agreements; Article 33 provides that: ‘Nothing in the present Convention shall affect existing or future international agreements in special fields which relate to matters dealt with in the present Convention’.
UNCSI, as covering the whole field of State immunity, does not qualify as an agreement covering only ‘special fields’, which Article 33 of the European Convention leaves unaffected, whereas ECSI because it is an agreement relating to the subject generally qualifies as an agreement which Article 26 of UNCSI provides shall be unaffected. Consequently, where States are parties to both treaties, without any provision to the contrary, ECSI would apply because it only excludes other international agreements ‘in special fields (dans les matières particulières)’, whereas UNCSI, Article 26 leaves untouched ‘all international agreements relating to matters dealt with in the Convention’ (emphasis added). In a paper prepared by Belgium as to how States Parties to ECSI wishing to ratify the UN Convention might regulate this situation, three approaches were identified. A State Party might denounce the European Convention by notification to the Secretary-General of the Council of Europe under Article 40, in which case after six months the State would cease to be a party; or it might state in a reservation (there being no bar on reservations) when ratifying UNCSI and at the same time in a declaration to ECSI that as lex posteriori the provisions of the UN Convention were to prevail over the European Convention; or thirdly, which is the course now agreed, States Parties to the European Convention might by agreement provide that it should cease to bind them from the date when they had ratified the UN Convention and it had come into force.38
Certain of the Convention’s provisions, and in particular the general exclusion in the State’s favour of the right of a private claimant to access to court for the determination of a dispute relating to civil rights or interests ECHR, Article 6(1) raises questions as to the Conventions’ compatibility with human rights law etc.
On one view the ‘without prejudice’ clause resolves the question of the applicability of the ECHR and the jurisprudence resulting from it, by according precedence to the ECHR. However, a more nuanced approach may be anticipated.39 As the European Court of Human Rights has already ruled: ‘The [European] Convention [on Human Rights], including Article 6 cannot be interpreted in a vacuum. The court must be mindful of the Convention’s special character as a human rights treaty, and it must also take the relevant rules of international law into account’.40 In cases relating to an allegation of torture abroad (Al-Adsani) and assault by a member of a foreign armed force (McElhinney), the Court has held that State immunity cannot be struck down as contrary to the right of access to a court, unless it is established that its barring of a civil right is not disproportionate to the legitimate aim which State immunity pursues, see further Chapter 3. Following the Strasbourg Court’s application of ECHR, Article 6(1), claims relying on that article have been brought in national courts relating to arbitration and commercial contracts and particularly in respect of claims of persons employed in diplomatic missions, see Chapter 14.
The 1968 Brussels Convention, now replaced for the UK by Council Regulation 44/2001/EC (the Judgments Regulation), governs the exercise of jurisdiction of the courts of Member States of the European Union in respect of civil and commercial matters. The exercise of public powers by a public authority has been held to be outside the Brussels Convention and Judgments Regulation41 and, accordingly, these instruments do not apply to matters in exercise of sovereign authority which are immune by reason of State immunity and which are so identified under the UN Convention on State Immunity.42
Article 7
Express consent to exercise of jurisdiction
1. A State cannot invoke immunity from jurisdiction in a proceeding before a court of another State with regard to a matter or case if it has expressly consented to the exercise of jurisdiction by the court with regard to the matter or case:
(a) by international agreement …
The emphasis is on express consent with regard to the matter or case: waiver of immunity and consent to the exercise of jurisdiction in respect of a State cannot be inferred by mere implication from a provision in which the State agrees to exercise jurisdiction over certain activities. As the International Court stated in the Arrest Warrant case,
[t]he rules governing the jurisdiction of national courts must be carefully distinguished from those governing jurisdictional immunities: jurisdiction does not imply absence of immunity, while absence of immunity does not imply jurisdiction. Although various conventions on the prevention and punishment of certain serious crimes impose on States obligation of prosecution and extradition, thereby requiring them to extend their criminal jurisdiction, such extension of jurisdiction in no way affects immunities under customary international law, including those of Ministers for Foreign Affairs. These remain opposable before the courts of a foreign State, even where those courts exercise such a jurisdiction under these conventions.43
The Commentary notes that while a State by giving such consent may be bound in international law, Article 7(1)(a) is discretionary so far as the national court is concerned in deciding whether to exercise its jurisdiction: ‘Customary international law or international usage recognises the exercisability of jurisdiction by the court against another State which has expressed its consent in no uncertain terms, but actual exercise of such jurisdiction is exclusively within the discretion or the power of the court, which could require a more rigid rule for the expression of consent’.44
An annex to the Convention which, as Article 25 of the Convention declares, ‘forms an integral part of the Convention’, contains Understandings relating to Articles 10, 11, 13, 14, 17, and 19. This article ‘was accepted on condition that it was made clear that the Annex was for purposes of interpretation only. The Annex, which was not drafted nor considered by the ILC, and underwent much drafting and editorial changes, must be read together with the Convention and forms part of the context of the treaty in the sense of Article 31 of the Vienna Convention on the Law of Treaties’ (Hafner State Immunity and the New Convention, Chatham House, 5 October 2005, Transcript). In a useful article Treves examines the scope and purpose of these Understandings. Some of the Understandings he identifies as providing an addition (Articles 13, 14, 17, 19(i)), or an exclusion (Articles 10.3 or 19(iii)) and these he considers ought to be considered as an integral part of the Convention or, if the view of the Chinese representative to the UNGA Sixth Committee is adopted, ‘as relating only to the particular provision’. He lists, however, the Understandings to Article 11 as adding nothing to the text. Generally he ranks the Understandings, given the lengthy diplomatic negotiations to reach an agreed text, along with ‘the general understanding reached in the ad hoc committee’ that the Convention ‘does not cover criminal proceedings’, as means ‘to find a compromise between opposing views’.45 UNCSI, Article 2(2) provides that the use of terms in the Convention in the preceding paragraphs 1 and 2 of article 2 are ‘without prejudice to the use of those terms or to the meanings which may be given them in other international instruments or in the internal law of any State’. This is a useful provision since it preserves national law meanings of similarly named terms such as State, agencies, representatives, and makes room should it be thought necessary for a State on ratification to identify a particular term—as perhaps the UK might do in respect of ‘separate entities’ and ‘constituent territories’ defined in SIA, section 14 regarding the requirements of English law which apply to them.
By Article 33 the Arabic, Chinese, English, French, Russian, and Spanish texts of the Convention are equally authentic. Differences in language may affect the meaning of terms in the Convention. After long discussion the ILC decided to adopt ‘sovereign authority’ rather than ‘governmental authority’ as the nearest equivalent to the French ‘prérogatives de la puissance publique’, Commentary, Article 2.1(b)(iii), para 12. A discrepancy in the 1991 Draft Articles undoubtedly complicated subsequent discussions as to the appropriate criterion for separate entities; the agencies and instrumentalities defined in Draft Article 2(b)(4) were described in English, as ‘entitled to perform acts in exercise of sovereign authority’ and, in the French, as ‘dans la mesure où ils agissent dans l’exercise des prerogatives de la puissance publique’.
The UN General Assembly Resolution 59/38 of 16 December 2004 and the statement (to which the Resolution specifically refers) of Mr Hafner, Chairman of the Ad Hoc Committee, in introducing the Committee’s report and the Draft Convention form part of the context of the Convention and are to be taken into account in interpreting the Convention.46
The Commentary prepared by the ILC on its 1991 Draft Articles provides a useful, and at times necessary, explanation and guide to the meaning of the Convention’s provisions.47 As explained in the account of the legislative history of the Convention, the text of the Convention is a word-by-word repetition of the 1991 Draft Articles on the jurisdictional immunities of States and their property prepared by the ILC. Only Article 2, use of terms, Article 3.3, the exclusion of aircraft and space objects, Article 10, commercial transaction, Article 11, contracts of employment, Articles 18 and 19 relating to execution, and the whole of Part VI were added subsequently or significantly amended in consequence of discussions in the Ad Hoc Working Group.
This Commentary together with relevant parts of the reports of the Ad Hoc Working Group may be resorted to for the interpretation of the Convention. The preamble of the UN General Assembly Resolution 59/38 of 16 December 2004 adopting the Convention recalls that ‘the International Law Commission submitted a final set of draft articles, with commentaries on the jurisdictional immunities of States and their property in 1991’, and refers to the elaboration of the Convention as ‘a generally acceptable instrument based on the [said] draft articles’; Mr Hafner, Chairman of the Ad Hoc Committee, in introducing the Committee’s report and the Draft Convention stated that:
Generally, it must be borne in mind that the Convention would have to be read in conjunction with the commentary prepared by the International Law Commission, at least insofar as the text submitted by the Commission had remained unchanged. The Commission’s commentary, the reports of the Ad Hoc Committee and the General Assembly resolution adopting the Convention would form an important part of the travaux préparatoires of the Convention. That common reading of the text of the Convention and the commentary would certainly clarify the text if certain questions of interpretation remained.48
These references would seem to render unchallengeable the Commentary, Ad Hoc Committee Reports, and the General Assembly Resolution as part of the context of the Convention for the purpose of its interpretation; thus Sinclair states: ‘an Explanatory Report, by virtue of the fact that it has been established by all the negotiating States in connection with the conclusion of the treaty, falls more naturally to be treated as part of the “context” of the treaty than as an element of the travaux préparatoires of the treaty’.49 It should, however, be mentioned that on a strict application of the relevant provision of the 1969 VCT, neither the ILC nor the Working Group of the UNGA Sixth Committee can be described as ‘a party’ to the Convention and hence the commentary or reports would not seem strictly to come within the context as defined by the VCT Article 31(2) since they are neither ‘an agreement relating to the treaty … made between all the parties, nor an instrument made by one party in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty’. Failing acceptance as part of the context, recourse to the commentary, and reports by the parties to the Convention, particularly in judgments of their national courts, might, however, be argued to bring them within the ‘subsequent practice in the application of the treaty which establishes the agreement of the parties’ (Article 31(3)(b)).50 If the commentary and reports are rejected by either of these suggested routes as a primary means of interpretation, VCT Article 32 would still permit recourse to be made to them as a supplementary means of interpretation, when the meaning is ‘ambiguous or obscure’ or ‘leads to a manifestly absurd or unreasonable result’.
The statement by the Chairman of the Ad Hoc Committee was found to be significant by the ICJ in the Jurisdictional Immunities case. The Court noted that the Chairman had stated that the draft Convention ‘had been prepared on the basis of a general understanding that military activities were not covered’ and that no State had questioned this interpretation (para 69). In his Separate Opinion, Judge Keith observed that ‘The Chairman’s statement indicates to me that the exclusion of war claims went almost without saying’ (para 16).
More detailed examination of the articles will be found in the following chapters.
As in the 1986 and 1991 Drafts, the Convention is divided into five parts. Part I ‘Introduction’ sets out the use of terms, including the meaning of ‘court’, ‘State’, ‘commercial transaction’, and in Article 2(2) the controversial interpretative provision referring to both the nature and purpose of a commercial contract; Part I also contains certain exclusions and provides for the non-retroactivity of the Convention in Article 4. Part II, ‘General Principles’, states a general rule of immunity of a foreign State before the courts of another State51 and sets out the rules relating to express waiver, participation in court proceedings by the foreign State, and counterclaims. Part III sets out eight types of proceedings in which State immunity cannot be invoked. These ‘exceptions’ to State immunity52 resemble those to be found in ECSI and the US FSIA with the categories of commercial transaction set out in Article 2(1)(c) modelled on those in the UK SIA, and cover commercial transactions, employment contracts, personal injuries and damage to property, ownership, possession, and use of property, intellectual and industrial property, participation in companies, ships in commercial use, and arbitration agreements.53 Part IV deals with immunity from execution—‘State immunity from measures of constraint in connection with proceedings before a court’—and was one of the most difficult on which to achieve a final text; it provides separate rules for pre-judgment (Article 18) and post-judgment (Article 19) measures of constraint, and also lists in Article 21 five categories of State property immune from attachment, arrest, or execution. Part V ‘Miscellaneous Provisions’, deals with service of process, default judgment, failure to comply with a court order, and no imposition of fine, penalty, or security for costs. Part VI ‘Final Clauses’, was added in 2004; it contains the usual provisions relating to signature (Article 28), ratification (Article 29), entry into force (Article 30), denunciation (Article 31), depositary and notifications (Article 32), and authentic texts (Article 33), and in addition Article 25 incorporating the Annex containing the Understandings into the Convention and Article 26 relating to other international agreements. Various proposals for settlement of disputes were debated; in the end, the Convention provides a compulsory procedure for settlement with recourse to the ICJ and an opting-out facility. Accordingly, a settlement of disputes clause (Article 27(1) and (2) was added in 2004 providing for settlement by negotiation, or, if not settled within six months, by arbitration at the request of any of the States Parties to the dispute, and, failing agreement within six months of the date of such request, by reference of any of those State Parties to the ICJ. This provision is significant in that it provides an automatic dispute settlement procedure unless at the time of signature or ratification a State opts out of the procedure. Any State at the time of signature or ratification is free to declare that it shall not be bound by this provision; in which event the other States Parties shall not be bound by the dispute settlement procedure set out in Article 27, paragraph 2 with respect to any State Party which has made such a declaration (Article 27(3)). See further below under Articles 5 and 6. Both Iran and Saudi Arabia have made reservations on ratification stating that they do not consider themselves bound by the provision in Article 27(2) regarding the referral of disputes to the ICJ. Both declare that the consent of all parties to the dispute is necessary, with Iran adding that ‘the Islamic Republic of Iran can, if it deems appropriate, for the settlement of such a dispute, agree with the submission of the dispute to the arbitration in accordance with its related domestic law’.
UNCSI follows the universal State practice in treating separately immunity from adjudication in Part III and immunity from enforcement in Part IV, with the latter issues being throughout the ILC’s work and discussions in the UNGA Sixth Committee and Ad Hoc Working Group some of the most controversial and difficult on which to achieve a text. The distinction between pre-judgment and post-judgment measures of constraint was first introduced into the 2002 text on the 1999 recommendation of the ILC working party.
Despite the wide recognition, following the German decision in The Philippine Embassy case and the US and UK legislation, that State property used for commercial purposes was liable to attachment, the Convention’s provisions on execution are cautious: no attachment pre-judgment without consent or specific allocation of State property, and attachment post-judgment only in respect of property used for commercial purposes ‘that has a connection with the entity against which the proceeding was directed’ (Article 19(c)). The first Special Rapporteur appears to have been strongly influenced in his treatment of immunity from execution by the fears of developing countries that execution by unscrupulous creditors of commercial ventures would unfairly take the form of attachment of diplomatic and central bank assets.
The Convention’s treatment of immunity from enforcement is further examined in Chapters 16 and 17.
The Convention’s treatment is confusing as regards the nature of any nexus or jurisdictional link to the forum State required to support the forum court’s exercise of jurisdiction over a foreign State with regard to proceedings relating to the exceptions to State immunity.54 All the exceptions to immunity from jurisdiction expressly refer to the court being ‘otherwise competent’ (see Articles 11 to 17) excluding the commercial transaction in Article 10 which refers to ‘the private international laws’.55 The Commentary to the ILC Draft Articles explains that it is ‘common ground’ that there must be a pre-existing jurisdiction in the courts of the forum State before the possibility of exercising it arises and that such jurisdiction can only exist and be authorized by the internal law of the forum State, which for this purpose means the private international law rules of the forum State, ‘whether or not uniform rules of jurisdiction are capable of being applied’.56 This reference to ‘other competence’ or ‘private international laws’ in UNCSI indicates the intention that, the exercise of jurisdiction in respect of a foreign State with regard to proceedings relating to the exceptions is to be determined in accordance with jurisdictional requirements of the forum State court.
This comparatively straightforward position, however, is complicated by the Convention stipulating requirements for additional jurisdictional links for the majority of the exceptions but omitting any such links for the exception for the commercial transaction, arbitration agreements, and trading ships owned or operated by States. The omission of any such additional link with regard to the commercial transaction was a deliberate decision made by the Second Special Rapporteur Mr Ogiso in the course of drafting Article 10. He reported that five Nordic countries and the German Democratic Republic favoured the inclusion of a rule pertaining to the jurisdictional link between the commercial contract and the State of the forum, whereas the UK considered the reference to the applicable rules of private international law as effective and sufficient to determine whether differences relating to a commercial contract fall within the jurisdiction of a court of another State. The Special Rapporteur adopted the UK noting that where proceedings in respect of a commercial contract are brought in the court of another State ‘it is the rules of private international law which are part of the law of the forum that will determine whether the differences relating to the contract [for the commercial transaction] fall within the jurisdiction of the court of the State of the forum. And these rules often require some form of territorial connection’. But he continued, stating ‘any further elaboration of the rules, which would seek unification of rules of private international law, is not within the scope of the draft articles; nor is it necessary to invent a special rule on jurisdictional link for the purpose of the draft convention. Indeed this would be no easy task. Relevant municipal or international legal instruments give different solutions to the issue’.57
Given this assertion of the Special Rapporteur that it was not necessary to invent a special rule and his consequent omission as regards the exceptions for the commercial contract, arbitration agreements, and State trading ships of such an additional jurisdictional link, it is surprising to see it contradicted by the inclusion of precisely such special links as a condition of their application in all the other exceptions. Thus, in the employment exception the place of performance of the contract, and the nationality or permanent residence of the employee are all made conditions of non-immunity (Article 11); in the personal injuries exception ‘territoriality is the basis for the assumption and exercise of jurisdiction’ as both the place of commission of the act causing personal injuries and the presence of the author of the act are required to be within the territory of the forum State (Article 12).58 For the other exceptions, jurisdictional links are also stated but it is not made clear whether they merely repeat generally recognized requirements of a national court’s competence (for such types of commercial transaction which have already been implied by the inclusion of the term ‘otherwise competent’) or whether they are designed as specifically applicable to give effect to the UN Convention. Article 13, an exception which the absolute doctrine also recognized, applies to property situated in the forum State territory. Article 14, the exception for intellectual and industrial property, applies where ‘the voluntary entry by a State into the legal system of the State of the forum, for example by submitting an application for registration of, or registering a copyright, as well as the legal protection offered by the State of the forum, provide a strong legal basis for the assumption and exercise of jurisdiction’.59 Similarly the Article 15 exception relates to participation in companies etc which are incorporated or have their seat of business in the forum State. Only in respect of the commercial transaction exception (Article 10), the arbitration exception (Article 17), and the exception for seagoing commercial ships (Article 16) is the jurisdiction exercisable by the forum State’s national court not linked to a specified jurisdictional connection to the forum State.
One possible explanation of this inconsistency in treatment, so far as the omission of any additional link for the commercial transaction may be provided by a recent ruling of the English Supreme Court which, in granting recognition of a judgment relating to a commercial transaction given against a foreign State by the national court of a third State, declared:
The restrictive doctrine of sovereign immunity does not restrict the exemption from immunity to commercial transactions that are in some way linked to the jurisdiction of the forum.60
Although this may be surprising in view of UNCSI’s requirement of a jurisdictional link in all but three of its specified exceptions to immunity, arguably the omission of a jurisdictional link in Article 10 of the UN Convention (with similar consequential omission in Article 17 for arbitration agreements relating to such commercial transactions), indicate this also to be the position adopted in UNCSI.61
As the Commentary to the ILC Draft Articles explains: ‘… A significant territorial connection generally affords a firm ground for the exercise of jurisdiction but there may be other valid grounds for the assumption and exercise of jurisdiction by virtue of applicable rules of private international law’ (Article 10(5)). Earlier the First Special Rapporteur wrote that ‘jurisdictional immunity is the consequence of a direct confrontation between the two aspects of sovereignty, territorial and national’62 and the Commentary explains ‘The first prerequisite to any question involving jurisdictional immunity is therefore the existence of a valid “jurisdiction”, primarily under the internal law rules of a State, and in the ultimate analysis the assumption and exercise of such jurisdiction not conflicting with any basic norms of public international law’ (Article 6(3)).
On the basis, then, that the application of the restrictive doctrine in international law requires no jurisdictional connection with the forum court for the removal of State immunity in respect of a commercial transaction entered into by a State, the general introductory rules relating to jurisdiction in UNCSI, Article 5 stating that a State enjoys immunity from the jurisdiction of the courts of another State and Article 6’s requirement that a State shall give effect to State immunity by refraining from exercising jurisdiction, are solely to be read as retaining an absolute bar in its courts assuming jurisdiction in proceedings against another State save as expressly permitted by the words included in all the exceptions ‘a State cannot invoke immunity’. They do not attempt to stipulate uniform rules by which a national court determines its exercise of jurisdiction over a foreign State.
No provision relating to the competence of the forum State is set out in Part IV which deals with enforcement and measures of constraint against State property save that as regards post-judgment the exception allowing attachment of property in use or intended use by the State for non-governmental commercial purposes’ (UNCSI, Article 19(c)). In this exception to immunity from execution the State property to be attached is required not only to be State property in such use or intended use and connected to the subject-matter of the claim, but also to be located in the forum State;63 no such requirement is made for diplomatic or military property or other categories immune from attachment.
An alternative solution to the specification of jurisdictional links in UNCSI was put forward by Kessedjian and Schreuer as simpler and more satisfactory, namely the deletion of all the above provisions relating to a jurisdictional connection and the substitution of a single provision applicable throughout the Convention stating that a State’s private international law rules are to apply to the other State as they apply to the private litigant with the sole exception that exorbitant bases of jurisdiction are excluded.64 They suggested an accompanying protocol between ratifying States agreeing not to exercise their jurisdiction over another State on an exorbitant basis with a list setting out the agreed exorbitant bases.65 But this suggestion was not adopted.
The establishment of a jurisdictional link can also be relevant to the determination of the applicable law. Any acceptance or removal of immunity requires a court to address the issue of the law to be applied to determine the entities which come within the Convention’s definition of a State, the nature and purpose of a commercial transaction, and the use or intended use of State property available for execution. In respect of proceedings relating to private individuals the determination of such issues as to the identity of the party, the justiciability of the claim, and the availability of enforcement measures turns, first, on the court being satisfied that there is a sufficient jurisdictional connection of the claim with the forum, and then proceeding by reference to choice of forum and law clauses, forum law, and private international law principles to identify and apply the applicable law. In respect of proceedings relating to a foreign State the Convention broadly seeks to side-step these issues. Immunity of a foreign State before the courts of other States is the sole subject of the Convention; in view of the great diversity of approach in State practice to issues of justiciability, act of state,66 forum non conveniens, and recognition of non-State entities, this seems a wise course. The lack of support for Professor Brownlie’s attempt in the Institut de droit international to unify jurisdictional pleas under common principles of the exercise or restraint from the exercise of jurisdiction demonstrates how far apart national jurisdictions remain on these matters.67 But as the Empire of Iran case and the discussion in Chapter 1 has shown, the international law relating to State immunity generally requires its application by municipal law. The identification of the specific applicable law by which the international law rules are to be applied will still be a necessary stage in proceedings brought against a foreign State. UNCSI’s avoidance of specification as to municipal law breaks down in Article 2(2) where it is provided that account must be taken of the purpose of a commercial transaction ‘which, in the practice of the State party to the proceedings, is relevant in determining the non-commercial character of the … transaction’. This instruction appears to direct the court to either foreign State law or, even less acceptably, to State practice which is dependent on the unilateral decision of the government of the foreign State.68
UNCSI provides definitions of the legal concepts it uses—‘State’, constituent units, agencies or instrumentalities, ‘commercial transaction’—as the basis for its rules but, save in a few cases, does not indicate whether it is for the forum or foreign State or either of their courts to provide the authoritative application of these definitions.
The definition of terms was in part addressed in discussions relating to UNCSI, Article 33 Authentic Texts in Part VI Final Clauses which provides that the Arabic, Chinese, English, French, Russian, and Spanish texts of the Convention are equally authentic. The term ‘in exercise of sovereign authority’, as a correct translation into English of ‘puissance publique’ was much debated in both the ILC and the Working Group of the UNGA Sixth (Legal) Committee. Objection was made that not all ‘prérogatives de la puissance publique’ appearing in early French drafts were related to sovereign authority in foreign relations, and that the distinction was between public as opposed to private institutions.69 The better translation, it was suggested, was that adopted in Part I of the ILC’s Draft Article on State Responsibility where ‘government’ or ‘governmental authority’ were used as the correct translation for ‘prérogatives de la puissance publique’.70 The term finally adopted in the French text is ‘dans l’exercice de l’autorité souveraine de l’État’ which approximates much more closely to the English: ‘in exercise of sovereign authority’.
UNCSI provides no procedure, presumption, or evidence for the application of the definitions in Article 2(1)(b) of State, government, constituent units, agencies or instrumentalities, and representatives. For recognition of a State, established methods exist by which States and the UN solve the issue; for instance the UK SIA, section 21 provides that a certificate issued by the UK executive shall be conclusive evidence of recognition in English law that a country is a State and that ‘any person or persons is to be regarded as the head or government of a State’. UNCSI does not attempt to supply any alternative.71 The identification of the agencies and instrumentalities which come within the Convention’s definition is left as in the national legislation to the determination of the national court. The Convention expressly identifies the States as the authorities who will identify a ‘commercial transaction’ (Article 2(2)) and exceptionally, to give effect to a similar provision in the 1926 Brussels Convention, in Article 16(6) in respect of ships owned or operated by States provides that a certificate signed by a diplomatic representative or competent authority of the State shall constitute evidence of its use for government non-commercial purposes or otherwise.
Various forms of implementation of the 1991 ILC Articles were canvassed in the course of the discussions in the Sixth (Legal) Committee—as a binding commitment of a general nature with the Draft Articles annexed as one model for national legislation, as a statement of general principles of international law, as a non-binding annex to an UNGA Resolution which was the procedure adopted for the ILC Articles on State Responsibility.72 By 2004 the majority of members of the Sixth Committee supported the use of a convention incorporating the whole of the ILC Draft Articles; they noted ‘that the adoption of a convention would constitute a significant achievement and lead to a harmonization of the practice of States, particularly for those States that relied on customary international law to shape their practice’.73 The seventh and eighth paragraphs of the preamble to the Convention stress the importance of uniformity and clarity in the law of jurisdictional immunities of States and their property, emphasizing the role of a convention in this regard, and note the broad support for the conclusion of a convention on jurisdictional immunities of States and their property.
UN Convention
PART II GENERAL PRINCIPLES
Article 5
State immunity
A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention.
UNCSI declares a general rule of immunity from jurisdiction.74 The rule for immunity from execution is stated in the same form being expressed separately as to pre-judgment and post-judgment measures of constraint as ‘No such measures shall be taken except …’.
The Convention follows the general rule adopted in the US FSIA and the UK SIA, and by other common law legislation; the earlier 1932 Harvard Project states this general rule excluding national proceedings as the basic principle of immunity, ‘the point of departure for jurists and the courts, following from the twin characteristics of States, independence and equality with each other. One sovereign cannot exercise jurisdiction over another’ (527, 528). The 1991 and 1954 Institute Resolutions and the 1926 Report of the League of Nations’ Committee of Experts, however, avoided a single rule, instead stating two rules, one permitting national proceedings against a State for private law acts acta gestionis, the other stating immunity for such proceedings when relating to exercise of sovereign authority, jure imperii.75 The 1991 Institut Resolution adopted a different approach focusing on two lists of criteria indicating competence or incompetence of the legal system of the forum State to entertain proceedings against another State. Although the European Convention contains a general rule in Article 15, this follows 14 articles setting out non-immune situations; and the rigidities of this system were softened by an optional regime implemented by a declaration under Article 24. In consequence there were three ‘zones’: a white zone where immunity is never granted; a black zone where immunity remains; and an intermediate grey zone where a State making a declaration under Article 24(1) may apply their own rule relating to immunity but ‘without prejudice to the immunity from jurisdiction which foreign States enjoy in respect of acts performed in exercise of sovereign authority acta jure imperii’, that is, acts in the black zone.
In 1979, when the Commission took up the topic of jurisdictional immunities, there was general optimism that, with the enactment of the US and UK legislation, the latter following the signature of the European Convention, a restrictive doctrine of immunity was now generally favoured and the time was ripe for a universal convention incorporating a restrictive doctrine. Such optimism underestimated the complexities which the application of the new restrictive doctrine would produce, particularly with regard to enforcement of judgments against States, both in the construction of the new legislation and in the case-law of the major jurisdictions which had not enacted legislation. It also failed to appreciate the skilful compromises to which, by use of express waiver in bilateral treaties, countries such as the USSR, that were opposed to a restrictive doctrine, had accommodated their conduct of business transactions.76 Not until the ILC’s review of the five problem areas in 1999, was the possible inadequacy of the Draft articles appreciated in addressing immunity as an obstacle to proceedings in national courts in respect of violations of international law, particularly of human rights. The Draft was a cautious attempt to incorporate the restrictive doctrine of immunity and the limitations on immunity of adjudication to be found in developed States’ practice, but to present it as far as possible as carried through by express or implied consent of the foreign State.77
The Special Rapporteur explained the decision to express State immunity as a general rule subject to exceptions:
(2) … There is common agreement that for acts performed in the exercise of the ‘prérogatives de la puissance publique’ or ‘sovereign authority of the State’ there is undisputed immunity. Beyond or around the hard core of immunity, there appears to be a grey zone in which opinions and existing case law and indeed legislation still vary. Some of these indicate that immunity constitutes an exception to the principle of territorial sovereignty of the State of the forum and as such should be substantiated in each case. Others refer to State immunity as a general rule or general principle of international law. This rule is not absolute in any event since even the most unqualified of all the theories of immunity admits one important exception, namely consent, which also forms the basis for other principles of international law. Others still adhere to the theory that the rule of State immunity is a unitary rule and is inherently subject to existing limitations. Both immunity and non-immunity are part of the same rule. In other words, immunity exists together with its innate qualifications and limitations.
(3) In formulating the text of Article 5, the Commission has considered all the relevant doctrines as well as treaties, case law and natonal legislation, and was able to adopt a compromise formula stating a basic principle of immunity qualified by the provisions of the present Articles incorporating those specifying the types of proceedings in which State immunity cannot be invoked.78
Although the general rule of immunity stated in the UN Convention purports to be a statement of a current rule of international law—with the fifth paragraph of its preamble ‘affirming that the rules of customary international law continue to govern matters not regulated by the provisions of the present convention’—its formulation in a convention suggests it strictly derives its force as law from the treaty obligation which a contracting State undertakes on ratification. The third paragraph of the preamble supports this construction in stating the belief that ‘an international convention on the jurisdictional immunities of States and their property would enhance the rule of law and legal certainty, particularly in dealings of States with natural and juridical persons, and would contribute to the codification and development of international law and the harmonization of practice in this area’. In any event, as with the 1969 Vienna Convention on the Law of Treaties, the treaty form of the rules relating to State immunity is likely to aid the process of crystallization of some if not all of its provisions into rules of customary law.
In an earlier version of Article 5 which provides that ‘A State enjoys immunity … subject to the provisions of the present Articles’, the words ‘and the relevant rules of general international law’ were added. The intention was that ‘future developments of State practice be unfrozen and undeterred by the present Articles’.79 In the Convention these words are deleted, in part from fear that their retention might permit unilateral introduction of new exceptions in reliance on general international law. The reference to customary law in the preamble would seem merely to preserve existing customary law relating to State immunity on matters not covered by the Convention.
Article 31, paragraph 3 of the Convention provides that ‘denunciation shall not in any way affect the duty of any State party to fulfil any obligation embodied in the Convention to which it would be subject under international law independently of the present Convention’. The wording of this paragraph is identical to that in Article 317 of the 1982 UN Law of the Sea Convention and, as in that case, is designed to make plain that the rules relating to State immunity in UNCSI provide a clarification of an area of the general international law on the subject, but are not exclusionary.
Article 6
Modalities for giving effect to State immunity
1. A State shall give effect to State immunity under article 5 by refraining from exercising jurisdiction in a proceeding before its courts against another State and to that end shall ensure that its courts determine on their own initiative that the immunity of that other State under article 5 is respected.
Unlike ECSI or national legislation, UNCSI imposes an obligation in Article 6 on a contracting State to give effect to the immunity in Article 5. This is given practical effect in common law jurisdictions and recognized by the duty of the judge propio motu to give effect to State immunity even though there is no appearance by the defendant State.80 The scope of the obligation imposed by Article 6(1) is to give effect to the general immunity conferred in Article 5 in respect of another State and its property from the jurisdiction of the courts of another State subject to the provisions of the present Convention, thereby making the general immunity from adjudication subject to the provisions relating to consent, participation in proceedings and the exceptions set out in the subsequent articles 7 to 17 and prohibiting the taking of pre-judgment or post-judgment measures of constraint against the property of another State save as set out in Part IV of the Convention. The scope of the obligation is to refrain from exercising jurisdiction in a proceeding before its courts against another State named as a party to the proceeding (Article 6(1)) or if not named in a proceeding which seeks in effect to affect the property, rights, interests, activities of that other State (Article 6(2)), and to that end to ensure that its courts determine on their own initiative that the immunity of that other State is respected.
The obligation in the Settlement of Disputes clause in Article 26 is restricted in the first paragraph to requiring the parties to settle ‘disputes concerning interpretation or application of the present Convention through negotiation’ and by paragraph 2, failing settlement by negotiation or arbitration, any State Party to such a dispute ‘may refer the dispute to the International Court of Justice by request in accordance with the Statute of the Court’. No general obligation is imposed on a State Party to ensure ‘the fulfilment of the Convention’81 but the handing down of a judgment by a State Party’s court against another State or its enforcement by the taking of measures of constraint against the property of such a State contrary to the provisions of the Convention, and giving rise to a dispute as to its interpretation or application with another State, would permit a State Party to refer unilaterally a dispute to the ICJ.
Should a State Party not wish to be bound by this obligation to refer such disputes to the ICJ, paragraph 3 of Article 27 permits such a State Party ‘at the time of signature, ratification, acceptance or approval of, or accession to, the Convention, to declare that it does not consider itself bound by paragraph 2 and other State Parties shall not be bound by paragraph 2 with respect to any such State Party who makes such a declaration’.
2. A proceeding before a court of a State shall be considered to have been instituted against another State if that other State:
(a) is named as a party to that proceeding; or
(b) is not named as a party to the proceeding but the proceeding in effect seeks to affect the property, rights, interests or activities of that other State.
As the general immunity of a State provided in Article 6 includes in paragraph 2(b) a proceeding, where although the State is not named as a party, it ‘in effect seeks to affect the property, rights, interests or activities’ of the foreign State, it is necessary for the Convention to include an exception to such immunity for proceedings relating to property located in the forum State or to the administration of estates or trusts or similar funds by the courts of the forum State. This is provided by Article 13 which is discussed in Chapter 17. The proceedings to which the bar of immunity is extended by Article 6(2)(b) is very wide covering claims relating to ‘interests’ as well as ‘rights’ of the State. The ILC Commentary to Article 13, paragraph 4 explains that ‘the combination of “rights or interest” is used as a term to indicate the totality of whatever right or interest a State may have under any legal system’. ‘Interests’ should therefore be limited to a claim for which there is some legal foundation and not merely to some political or moral concern of the State in the proceedings.
The comprehensiveness of the rule as set out in UNCSI is, however, seriously reduced by a qualification found in every exception to immunity from jurisdiction, save for the commercial transaction exception in Article 10, that States might ‘otherwise agree’. This severely weakens the force of the rule, requiring negotiating parties to a transaction or a national court considering a proceeding against a foreign State to take account of ‘contracted out’ arrangements. The preferable construction of the words ‘unless otherwise agreed’ is to treat them as a reference back to Part II of the Convention, and in particular the provisions relating to waiver; such ‘contracted out’ arrangements must therefore comply with the requirement of Article 7 relating to express consent and also, possibly, of Articles 8 and 9 relating to participation in a court proceeding and counter-claims.
One additional particularly serious feature in undermining the objectivity of the rules in UNCSI is the introduction of a ‘purpose’ element in the determination of the commercial character and hence of the non-immunity of State activity. This defect is discussed in greater detail below under the commercial transaction exception, but it is to be noted here that the definition of ‘commercial’ as incorporating purpose also has application to the exceptions from immunity for ships and cargo ‘used for governmental non-commercial purposes’ (Article 16), and for arbitrations (Article 17). Since arbitration clauses are deliberately used for disputes jure imperii arising from development projects undertaken for foreign States by foreign private investors as a way of avoiding procedural difficulties and the possible bias of municipal courts, the introduction of an Understanding relating to the arbitration exception that ‘the expression “commercial transaction” includes investment matters’ is particularly welcome.
The adoption of the ILC’s provisions relating to State immunity in treaty form gives rise to an unresolved ambiguity. As Greig pointed out when considering the 1986 Draft, the ILC’s work does not make plain whether its Draft provides rules of municipal law or lays down the limits of international jurisdiction.82
Whether ratification of UNCSI is sufficient to bring its provisions into force in the national law of the ratifying State would seem to depend on the extent to which the constitutional law of that State requires incorporation of international obligations into municipal law to give them effect in the national legal system.83 Whether, without amendment of its legislation, the UK for one could comply with this obligation is a matter for careful consideration. As the detailed examination of the Convention’s provisions in Part III shows, they do not differ in general structure from the English law although the UK legislation as applied by the courts provides more detail as to their application: the sharpest differences occur in respect of the personal injuries exception in Article 11 and Part IV in relation to execution. Ratification, whether with other members of the Council of Europe, or on its own, is likely to be accompanied by a declaration making plain the UK’s understanding that the general principles of international law set out in the Convention do not affect the force of national legislation giving it effect but where the SIA is seriously at variance with the Convention’s provision, a reservation may be necessary, as in respect of the entitlement to post-judgment enforcement measures against all State property shown to be in use or intended as for ‘government non-commercial purposes’.84
One consequence of UNCSI coming into force may be that over time it will come to represent for all States, whether parties or not, the accepted international law relating to State immunity. Incorporation of its provisions into national legislation, without any reciprocity on the part of other States, would certainly make such rules applicable to all States summoned in proceedings before the incorporating State’s courts and, in the event of protest, provide the latter State with a strong case for claiming it acted in accordance with international law.
Thus, whether the Convention’s provisions are to be treated as rules of municipal law will depend on the constitutional law of the State concerned. If the provisions are taken to state the exclusive municipal rule relating to State immunity applicable to civil proceedings in national courts, a foreign State which is not accorded immunity in the national courts of another State in accordance with the provisions of the Convention may subsequently complain of a denial of the immunity provided in UNCSI, and private litigants to whom the exceptions to State immunity are not extended may claim that the courts of the forum State deny access to court by applying a broader bar than that provided by international law as set out in the Convention.85
If the provisions are to be treated as obligations relating to international jurisdiction in a treaty, in its present form Article 6 places a State ratifying UNCSI under an obligation ‘to give effect to State immunity’ as set out in its provisions ‘by refraining from exercising jurisdiction in a proceeding before its courts against another State’. UNCSI, unlike the 1926 Brussels Convention on the Immunity of State-Owned Ships,86 contains no reciprocity clause limiting its application to other States Parties. The absence of such a reciprocity clause, the references throughout UNCSI to ‘another State’ rather than ‘another State Party’87 and the general assumption that it is setting out rules of international law (see the references to international law in the preamble and Article 4) support the application of the UNCSI’s provisions, once ratified by a State and in force, as applicable to all States whether or not parties to the Convention.88 Yet the Commentary would seem to limit its operation to the States Parties: ‘The law of treaties upholds the validity of expression of consent to jurisdiction … lack of privity to the treaty precluded non-parties from the benefit or advantage to be derived from the provisions thereof’ (paragraph 10), whether the ratification of UNCSI by a State subsequently made a respondent in proceedings of itself entitles individual litigants, whether or not nationals of other ratifying States, to rely on the Convention’s provisions in proceedings in national courts brought against such a respondent State remains doubtful—‘the extent to which individuals or corporations may successfully invoke one of the provisions of the international agreement is generally dependent on the specific rules of the domestic legal order concerned on implementation of treaties’ (Commentary to Article 7, paragraph 10).
This uncertainty might best be clarified by a statement filed on signature or ratification that a State understands UNCSI to express general principles of international law but that their application in national proceedings is dependent on national law. A ratifying State may also need to stress the matters which it understands are excluded from the Convention. Thus Norway and Sweden on ratification state their understanding that the Convention does not apply to military activities, and that the ‘special immunity regime including immunities ratione personae is to be read as excluding other State officials as well as heads of State’.
Prior to the Convention coming into force upon ratification by 30 States, Article 18 in the VCLT requires a signatory to refrain from acts which would defeat the object and purpose of a treaty which it has signed. In the view of one senior national court, however, until ratification a signatory of UNCSI is free to disregard its provisions and to apply an absolute rule of immunity. In proceedings brought in the Hong Kong court in 2010 to enforce arbitration awards made in respect of Entry Fees payable to the Congo by Chinese State trading agencies in return for exploitation of Congo’s mineral resources, on a plea of absolute sovereign immunity being lodged with the full support of the People’s Republic of China (PRC), Reyes J, at first instance, stated ‘… having signed the Convention, the PRC Government must be taken to have at least indicated its acceptance of the wisdom of the provisions therein’ (paragraph 65). On appeal, however, on the basis of a letter from the executive (the Ministry of Foreign Affairs of the PRC in the Hong Kong Special Administrative Region (HKSAR) stating that the PRC had never ‘applied the so-called principle or theory of “restrictive” immunity’) the Hong Kong Court of Final Appeal, by majority of 3 to 2,89 upheld the plea of absolute sovereign immunity. The Court stated:
A State may obviously sign a proposed multilateral treaty but withhold ratification unless and until a sufficient number of States are willing to be bound to enable it to take effect with a meaningfully broad and multilateral coverage. As the Letter asserts, China’s signature of the convention cannot be the basis of assessing its principled position of state immunity. It plainly provides no basis for suggesting that China has abandoned its practice of absolute immunity.90
UNCSI, even with the aid of its travaux préparatoires, lacks clarity as to its application, as shown in the detailed discussion that follows. Broadly, however, it can be said that the following are excluded:
(a) criminal proceedings;
(b) the privileges and immunities of diplomats, consuls and other persons on whom immunity is conferred by international agreement;
(c) the immunities of a head of State ratione personae;
(d) international organizations;
(e) aircraft and space objects;
(f) matters relating to armed conflict. Whether UNCSI excludes such matters relating to visiting armed forces of another State is left in some doubt; ‘property of a military character or in use or intended for use in the performance of military functions’ is certainly stated to be immune from execution (Article 21);
(g) other matters such as human rights, execution against State property, fiscal dues and nationalization.
The clear intention of the UN members voting for the adoption of the Convention was that its provisions did not cover criminal proceedings. However, nothing in UNCSI itself clarifies the intention to restrict its provisions to civil proceedings though the Commentary states: ‘Although the draft articles do not define the term “proceeding”, it should be understood that they do not cover criminal proceedings’. Article 1 states that ‘the present articles apply to the immunity of a state and its property from the jurisdiction of the courts of another state’ and Article 2(1)(a) defines the term ‘court’ to mean ‘any organ of a State however named, entitled to exercise judicial functions’, which is capable of being construed to cover criminal proceedings since judicial functions in a national system are exercised by both civil and criminal courts. There was clearly sufficient opposition by some States to a firm exclusion of criminal proceedings to prevent clarification of the matter. In 2003 when the Ad Hoc Working Party of the UNGA Sixth Committee first produced an Annex of Understandings there was included as a final statement: ‘the Ad Hoc Committee noted the general understanding that the draft articles do not cover criminal proceedings’.91 But this statement is omitted from the version of the Understandings in the Annex to the adopted Convention. However, the General Assembly Resolution of 2 December 2004 expressly states that the General Assembly ‘agrees with the general understanding reached in the Ad Hoc Committee that the UN Convention on Jurisdictional Immunities of States and their Property does not cover criminal proceedings’, a statement which was in accordance with a recommendation of the Ad Hoc Committee expressly mentioned in Mr Hafner’s statement in the Sixth Committee when introducing the report of the Ad Hoc Committee and which itself is referred to in the resolution.92
The general understanding that UNCSI does not apply to criminal proceedings is in line with the received position of jurists and courts that a State has the capacity to incur state responsibility for its acts but as an independent State cannot be held criminally liable under the municipal law of another State and hence enjoys absolute immunity in respect of criminal proceedings. (See further Chapters 1 and 4.)
This position is observed in the UK SIA which by section 16(4) excludes criminal proceedings. There is uncertainty as to whether the US FSIA applies to criminal proceedings or quasi-criminal proceedings as under The Racketeer Influenced and Corrupt Organizations Act (RICO). The statute can be read as including criminal proceedings; section 1605A(a) reads ‘A State shall not be immune from the jurisdiction of the courts of US and of the States except as…’ and there is no reference to criminal proceedings in the listed exceptions. Federal court decisions differ on the matter.93
The Japanese Act on Civil Jurisdiction over Foreign States, Article 1 declares ‘special provisions on the scope of civil jurisdiction (which shall mean jurisdiction excluding those pertaining to criminal matters; the same shall apply in Article 4) over Foreign States’; and the Swiss have made a general interpretative declaration that ‘in accordance with the General Assembly resolution 58/38 adopted on 2 December 2004 Switzerland hereby understands that the Convention does not cover criminal proceedings’.
Although Article 2(1)(b)(iv) includes ‘representatives of the state’ when acting in exercise of sovereign authority within the Convention’s definition of the State, Article 3(1) states that the Convention is without prejudice to (i) ‘the privileges and immunities’ of ‘diplomatic missions, consular posts, special missions, missions to international organizations or delegations to organs of international organizations or to international conferences and (ii) the persons connected with them’. The intention here is to preserve the immunities and privileges accorded to such missions and persons ‘by virtue of existing international law and more fully by relevant international conventions in force,94 which remain unaffected by the present articles’.95 As further discussed in Chapter 19, the relationship between diplomatic and State immunity is an intricate one, and not all proceedings relating to the diplomatic mission are excluded; though ‘property, including any bank account, which is in use or intended use for the performance of the functions of the diplomatic mission of the State or its consular posts’ is included in the specific categories declared immune from execution.96 Claims relating to the property of the State located in the territory of the forum state may be non-immune within the exception for immovables in Article 13, unless the Article 3 exclusion relating to diplomatic immunities applies; a complaint against a State’s diplomatic mission which enjoys no separate personality is generally treated in municipal law as a claim against the foreign State itself.
Article 3(2) provides ‘The present Convention is without prejudice to privileges and immunities accorded under international law to heads of State ratione personae’.
Initially the ILC draft included ‘the sovereign or head of State’ in the expression ‘State’ in the definition Article,97 and set out in draft Article 25 the immunities of ‘personal sovereigns and other heads of states’ in much the same way as section 20 of the SIA.98
This Draft attracted criticism in the ensuing debate99 on almost every count.
(i) Was the head of State not an organ of the State and thus requiring no express mention in the definition clause? If mentioned, should the head of State not be extended to head of government, and possibly other ministers? What of the General Secretary of the Communist Party in the Soviet Union whose meeting with the President of the US was declared a ‘summit’? Were members of the family of the head of State also included?
(ii) Was the property exception and restriction as to its attachment too narrow—movables were not included—or too wide—the forum state should retain the right to determine title to land; and should the Draft permit attachment save where it infringed the inviolability of the person of the head of State or his residence?
(iii) Was the immunity from criminal proceedings too broad? Mr Reuter wondered ‘whether, if national courts had to try crimes against humanity, sovereigns and heads of State would enjoy immunity’. Mr Ushakov joined him in thinking that on this account draft Article 25 was ‘dangerous’.100
(iv) Was the provision not ‘unnecessary’ since the topic was already covered by the Vienna Convention on Diplomatic Relations and the Conventions on Special Missions, Internationally Protected Persons and Representation of States?
(v) What was the relationship of the draft Article 25 to the definition clause? The position of a head of State was surely covered so far as State immunities, which was the subject of the ILC’s draft convention, by including him within the definition clause.101
(vi) The language of the provision was also criticized.
In the light of the many reservations expressed by members, the ILC deleted the phrase ‘the sovereign or head of State’ from the definition of ‘State’, leaving it covered by the expression ‘various organs of government’. It also deleted draft Article 25, and instead in its final draft convention, sent to the UN in 1991, inserted a saving clause which reads: ‘The present articles are likewise without prejudice to the privileges and immunities accorded under international law to Heads of State ratione personae’.102
The commentary on this Article reads:
Paragraph 2 is designed to include an express reference to the immunities extended under existing international law to foreign sovereigns or other heads of State in their private capacities, ratione personae. Jurisdictional immunities of States in respect of sovereigns or other heads of State acting as State organs or State representatives are dealt with under Article 2. Article 2, paragraph 1(b)(i) and (v) covers the various organs of the government of a State and State representatives, including heads of State, irrespective of the systems of government. The reservation of Article 3(2) refers exclusively to the private acts or personal immunities and privileges recognized and accorded in the practice of States without any suggestion that their status should in any way be affected by the present articles. The existing customary law is left untouched.103
A proposal made at one stage in the ILC’s work to add, after ‘heads of State’ in paragraph 2, ‘heads of government and ministers for foreign affairs’, was not accepted,104 but having regard to the ICJ’s decision in the Arrest Warrant case105 it would seem appropriate to construe this exclusion as including the immunity ratione personae of a State’s Minister for Foreign Affairs (and possibly other persons entitled to immunity ratione personae). Norway and Sweden in their ratifications of 27 March 2006 and 23 December 2009 state ‘the express mention of heads of State in article 3 [of the Convention] should not be read as suggesting that the immunity ratione personae of other State officials is affected by the Convention’.
Although there is no general exclusion of immunities relating to international organizations, the reference in the title of the Convention to the Jurisdictional Immunities of States probably makes clear their exclusion. Nonetheless, reference to international organizations is made in Article 15 (participation in companies) and in Article 21(1)(a) (excluding from post-judgment measures of constraint any property of missions to international organizations or of delegations to organs of international organizations). See further Chapter 19.
The 1991 ILC Draft, as noted by the Ad Hoc Committee in 2002, contained no specific provision removing immunity in respect of proceedings relating to aircraft or space objects. The 1991 Commentary to the exception in Article 16 for sea-going ships owned or operated by States in commercial use notes that Switzerland had pressed for inclusion of State aircraft in that exception. The ILC’s view was that, since the rules of civil aviation apply to State-owned or operated aircraft (save for those in military, customs, or police service) such aircraft would presumably not enjoy immunity. The commentary, after referring to international conventions dealing with aircraft, concludes:
These treaties however do not deal expressly with the question of jurisdictional immunity of State aircraft, and the case law in this field is very scant. Moreover, the legal status of specific types of aircraft, such as presidential planes, civil aircraft chartered by government authorities for relief operations, is by no means clear and would require further analysis. Recognizing that the question would call for more time and study, the Commission, while noting the importance of the problem, simply took note of the views exchanged in the Drafting Committee.106
As regards space objects, the ILC was of the view that under the special regime a claim arising for space activity or launching of space objects and brought against a State or its nationals would be settled through diplomatic channels as a matter of international responsibility. Moreover, it observed that space activity was being carried out by relatively few States. It therefore concluded that there was no present need to include claims arising from space activity within the Draft Articles on State immunity.107
The omission of any reference to immunity relating to proceedings concerning aircraft and space objects was noted by the Ad Hoc Committee in 2003 and 2004 and accordingly an additional paragraph was included in Article 3 which states the provisions of the articles are 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’. (see further Chapter 5.)
The general question whether UNCSI applies in time of armed conflict as well as in peacetime is nowhere addressed in the Convention.108 Immunity for military activities and acts of visiting armed forces particularly arises in respect of the exception in Article 12 for personal injuries and tangible loss. The ILC Commentary records: ‘Some members expressed reservations about the very broad scope of the article and on the consequences that might have for State responsibility. In their view, the protection of individual victims would effectively be secured by negotiations through diplomatic channels or by insurance’.109 Earlier in 1984, encountering this same opposition110 the Special Rapporteur stated:
In an eagerness to mete out justice, care should be taken lest a fundamental principle of international law, namely the principle of State immunity, be made an object of sacrifice without sufficient cause or justification. While, in general, it is possible to conceive of day-to-day activities of States which could be covered by an insurance policy in case of fire or accident or other natural disaster or calamity attributable to an agency or instrumentality of the State, the possibility that State immunity is still needed should not be precluded, particularly in cases where the State has performed an act exclusively in the domain of the laws of war, such as in military operations or military exercises or manoeuvres, or indeed in operations to quell riots, disturbances, civil war or civil strife, which are not covered by peacetime insurance. To allow an insurance company to settle claims against a foreign Government is not a derogation of any sovereign right or governmental power.111
Although no distinction is made in the application of the exception between acts jure imperii or jure gestionis, Article 12 is qualified by the opening words ‘unless otherwise agreed between the parties concerned,’ which the ILC Commentary considered would ‘allow different rules to apply to questions specifically regulated by treaties, bilateral agreements or regional arrangements specifying or limiting the extent of liabilities or compensation, or providing for a different procedure for settlement of disputes’.112
As regards customary international law, the ICJ has now ruled in respect of UNCSI that:
Article 12 cannot be taken as affording any support to the contention that customary international law denies State immunity in tort proceedings relating to acts occasioning death, personal injury or damage to property committed in the territory of the forum State by the armed forces and associated organs of another State in the context of an armed conflict. (… the Court considers that customary international law continues to require that a State be accorded immunity in proceedings for torts allegedly committed on the territory of another State by its armed forces and other organs of State in the course of conducting an armed conflict.113
A notable absentee in UNCSI from the list of specific groups which enjoy privileges and immunities is visiting armed forces. This contrasts noticeably with ECSI, Article 31 which the ICJ has construed as excluding ‘from the scope of the Convention all proceedings relating to acts of foreign armed forces, irrespective of whether those forces are present in the territory of the forum with the consent of the forum State and whether their acts take place in peacetime or in conditions of armed conflict’.114 On the occasions when a member of the ILC or of the Sixth Committee proposed an express exclusion in UNCSI for ‘the armed forces of the State while present in another State with the latter’s consent’, the view of the Special Rapporteur was that such privileges and immunities were determined by an agreement between the two States concerned rather than by customary international law, and it was therefore not appropriate to introduce the proposed additional paragraph.115 As discussed in Chapter 19, State practice supports the view that the exercise of jurisdiction over the armed forces of a sending State when present in the territory of a receiving State and the immunities enjoyed by such forces are determined by Status of Forces Agreements and other arrangements between the participating States.
The Chairman of the Sixth Committee Ad Hoc Working Group, Mr Hafner, in his statement introducing the Convention dealt with the matter as follows:
36. One of the issues that had been raised was whether military activities were covered by the Convention. The general understanding had always prevailed that they were not. In any case, reference should be made to the Commission’s commentary on article 12, stating that ‘neither did the article affect the question of diplomatic immunities, as provided in article 3, nor did it apply to situations involving armed conflicts…. It had to be borne in mind that the preamble stated that the rules of customary international law continued to govern matters not regulated by the provisions of the Convention.’
37. That was an example of the general approach of the Convention: it did not apply where there was a special immunity regime, including immunities ratione personae (lex specialis). Sometimes that was expressly stated in the text, sometimes not.116
Whether on occasion the absence of restriction to activities jure gestionis, of a private law nature in UNCSI, Article 12 tort exception will permit the civil proceedings for reparation to be taken against a foreign State for acts of its military officials remains at the present time an open question. The ICJ’s ruling in Jurisdictional Immunities is carefully restricted to the customary international law immunity in proceedings for torts allegedly committed ‘on the territory of another State by its armed forces and other organs of State in the course of conducting an armed conflict’; it says nothing as to whether immunity also applies in such a situation in peacetime. It clearly regards the immunities of the military officials themselves as a separate issue.117 State practice indicates that on occasion the forum State may, usually pursuant to treaty or other political commitment, allow the institution of criminal proceedings for the prosecution, after they have left office, of individual military personnel who on State orders have committed grave international crimes provided there is a sufficient jurisdictional connection with the forum State. Whether in all respects visiting armed forces are excluded from UNCSI where there is no agreement in force as to the Status of Forces with the receiving State remains in doubt.
Norway and Sweden in statements made on their ratification declared their understanding that ‘the Convention does not apply to military activities, including the activities of armed forces during an armed conflict, as those terms are understood in international humanitarian law, and activities undertaken by military forces of a State in exercise of their official duties. Such activities remain subject to other rules of international law’.118 Other States may well make similar declarations. For further discussion, see Chapters 15 and 19.
Human rights
Traditionally, claims relating to personal injuries and damage to property of individuals required exhaustion of local remedies and espousal of the claim by the State of the nationality of the injured individual. Claims by nationals of the offending State were without redress unless the State had placed itself under obligation to respect human rights and subjected itself to regional procedures for the protection of such rights. With the adoption of a restrictive doctrine of immunity the civil law courts’ concept of commerciality extended beyond the commercial transaction to contractual arrangements, insurance to deal with their consequences; thus arrangement to cover personal injuries sustained in the course of business transactions came to be considered as within the concept of commerciality. UNCSI, Article 12 was accordingly drafted without reference to or any specific exclusion of acts in exercise of sovereign authority, though the requirements of the commission of the act and the presence of its author to be present within the territory of the forum State considerably narrowed the scope of its application.
UNCSI contains no provision relevant to violations of international law by a State and consequent obligation to provide reparation to individuals for damage suffered. This is not surprising when one remembers that the ILC finalized its Draft Articles on the subject in 1991 and it is only in the last two decades that the rights of victims and their families to recover reparation for crimes under international law, whether during peace or armed conflict, have received recognition in international law, and then mainly in ‘soft’ law. Neither the 1986 nor the 1991 Draft Articles of the ILC included any exception for acts contrary to international law and it was first mentioned as a topic by the ILC in its 1998 Report. The Working Group established by the UNGA Sixth Committee under the chairmanship of Gerhard Hafner consequently considered in 1999 the possibility of an exception to State immunity for human rights violations. That Group refused to take up the issue considering it ‘not ripe enough’ to engage in a codification exercise and more suited to the work of the Third Committee in its discussion of impunity issues.119 The ICJ noted this in its Jurisdictional Immunities Judgment, reinforcing its conclusion that in 2004 States did not consider that customary international law limited immunity for jus cogens violations.120
Professor Gerhard Hafner, in a lecture subsequent to the General Assembly’s adoption of UNCSI, explained the omission in the UN Convention of any provision relating to abuse of human rights as follows:
Some criticism has been levelled at the Convention on the ground that it does not remove immunity in cases involving claims for civil damages against States for serious violations of human rights. This issue was raised in the ILC and it was dropped. It was raised again in the UN General Assembly and it was dropped because, in the light of the Al Adsani case and other developments, it was concluded that there was no clearly established pattern by States in this regard. It was recognised, therefore, that any attempt to include such a provision would, almost certainly jeopardise the conclusion of the Convention. In my view, there are other arguments which militate against including such an exception. It is said that we must limit impunity but suing a State for civil damages does not address the issue of impunity. To remove immunity, we must prosecute the individual person or persons responsible for the serious violations and this can be undertaken in other fields but not in the context of this Convention. Anyway, what is meant by ‘serious violations of human rights’? What would be the scope of any such exception? Is the denial of freedom of speech a serious violation? There would be significant problems of interpretation and this was also a reason why we did not take up the issue.121
The Swiss interpretative declaration attached to its ratification of UNCSI dated 16 April 2010 has relevance in this context. It reads:
Switzerland considers that article 12 does not govern the question of pecuniary compensation for human rights violations which are alleged to be attributable to a State and are committed outside the State of the forum.
It adds its understanding, as do the Norwegian and Swedish statements attached to their reservations, that UNCSI is without prejudice to any future international legal development concerning the protection of human rights.
Pre-judgment execution
Given the restrictive nature of the extent of measures of constraint against State property provided in UNCSI, Part IV, reservations by other States when ratifying the Convention would seem likely. To date only Norway has filed the following declaration:
In cases where it has been established that property of a State is specifically in use or intended use by the State for other than government non-commercial purposes and is in the territory of the State of the forum, it is the understanding of Norway that article 1 does not prevent pre-judgment measure of constraint from being taken against property that has a connection with the entity against which the proceeding was directed.
See further Chapters 16 and 17.
Fiscal dues
Draft Article 16 containing an exception to immunity ‘relating to the fiscal obligations for which it [foreign State] may be liable under the law of the State of the forum such as duties, taxes, or other similar charges’ was deleted (although with opposition from States who cited national legislation in support) by the Commission in 1991 on the ground that in essence it dealt with relations between States and should not be included in a convention dealing with relations between States and private parties.122 The Commentary explains that its deletion does not pre-judge the question and that dues arising from commercial transactions would come within the general exception for commercial transactions.123
After the first reading the ILC Draft contained an Article 20 which read:
The provisions of the present articles shall not prejudice any questions that may arise in regard to the extraterritorial effects of nationalization taken by a State with regard to property, movable or immovable, industrial or intellectual.
It was apparently designed to exclude measures of nationalization taken by one State from review in the national courts of another State. On members later expressing little support, the second Special Rapporteur Ogiso deleted the article.124
The 1991 Draft Articles and the finalized Convention have been the subject of comment and debate.125 Denza compares the negotiating history of the now universally adopted 1961 Vienna Convention on Diplomatic Relations to the preparation of UNCSI and writes, ‘The long process by which the new UN Convention on Jurisdictional Immunities of States and their Property has been prepared has been similar in terms of care for national interests and realism, and gives ground for optimism that this Convention may over time gain widespread acceptance by the international community’.126
The critiques fall into several categories. First, some commentators, including government representatives, argue that the text lacks clarity, in particular with regard to the role of the Understandings127 and the definition and scope of ‘ “commercial activities”, immunity for liability in respect of personal injury as well as compulsory equitable relief’.128 Secondly, commentators critique the 1991 ILC proposals (some of which changed in the final text of the 2004 Convention) from the perspective of the equality of treatment, saying that draft Articles mistakenly accepted the need to use State immunity as ‘affirmative action’ to protect the position of developing States from the rapacious designs of multinational corporations; in their view, that position must produce the opposite result, scaring off commercial investors and increasing risks and consequent costs of transactions.129 A third related critique claims that the complexity and restriction of UNCSI retained at the wish of developing States will rebound upon them by making developed States unwilling to ratify UNCSI.130 Fourthly, some have criticized the ‘piercing the veil’ provisions as confused and would have favoured an express requirement that State enterprises be endowed with a sufficient basis of liability to prevent disadvantage to private creditors.131 Finally, there are those who deplore the decision not to address the question of immunity for violations of international law in UNCSI.132
The Convention is the product of a lengthy diplomatic negotiation and should be accepted as such in assessing the technical competence of the drafting. Inconsistency of use of language and terms and differences between the English and the French texts are also noted as a possible source of confusion and uncertainty. The definition of commercial transaction in Article 2(2) is clearly the product of diplomatic compromise and the special wording in Article 16 relating to the exception for States’ ships in commercial use may be designed to be in line with the 1926 Brussels Convention. But the absence of a straightforward dichotomy of ‘commercial’ and ‘non-commercial’ or ‘commercial’ as contrasted with ‘in exercise of sovereign authority’ may be confusing to a national court. Thus performance of ‘acts in exercise of sovereign authority’ is made a qualification for inclusion within the definition of the State of political subdivisions and agencies and instrumentalities, and grounds for a retention of immunity in the exception for employment contracts, though ‘governmental’ replaces ‘sovereign’ (Article 11), but the exception for States’ ships in commercial use (Article 16) relates to ships ‘used exclusively on government non-commercial services’ and post-judgment measures in Article 19(c) are allowed in respect of State property ‘specifically in use or intended use for other than government non-commercial purpose’. These terms are not related to what is surely the companion contrary or opposite concept of ‘commercial transaction’ in Article 10.133
Some general propositions about the current international law may be made. First, independently of UNCSI the overwhelming majority of States supports a restrictive doctrine. In the last decade it is increasingly rare to find a case where a national court confronted with a claim relating to a commercial transaction involving a State trading entity has rejected jurisdiction on the basis of an absolute rule of State immunity.134 With the adoption in 2004 of UNCSI one may declare that a rule of restrictive immunity now prevails.135
Secondly, there is common ground regarding the exceptions to State immunity identified in the US, English, Canadian, Australian, and other common law jurisdictions and in the countries which have ratified ECSI.136 UNCSI adopts this common ground in its proposals for exceptions to the general rule of immunity from adjudication.
Thirdly, there remain a number of areas relating to the application of State immunity which remain controversial or unsupported by general State practice. Of these, the omission of any provision relating to criminal proceedings or to acts of the armed forces of a State has already been discussed; the omission of these matters is further clarified in the preamble to UNCSI where it refers to the report of the Chairman of the Ad Hoc Committee and to the general understanding that the Convention does not cover criminal proceedings. The exclusions in Article 3 of immunities enjoyed by diplomatic missions and those of the head of State acting ratione personae, in a personal capacity make it plain that UNCSI confines itself to regulating solely the acts of individual representatives of the State when acting in a public capacity in the exercise of sovereign authority. The Annex of Understandings supply some further elucidation by amplification or exclusion of matters relating to specified articles. All these serve, as Treves suggests, as supplementary means of interpretation, even of supplementary techniques to indicate the relationship of the UNCSI’s provisions to customary law.137
In addition, there is no reference to contravention of international law, particularly a violation of jus cogens, due to its lack of acceptance among States as a basis for an exception to State immunity. As discussed in Chapter 5, a number of cases have been brought in national courts against States, particularly in respect of war damage caused to individuals. In the Jurisdictional Immunities case, the ICJ has found conclusively that the plea of State immunity bars civil proceedings brought against one State in the national courts of another State for acts committed by State officials without any exception to such immunity by reason of the gravity of violations of international humanitarian law (paragraph 91); or by reason of their jus cogens nature, assuming that rules prohibiting murder, deportation and slave labour involve violation of jus cogens norms (paragraph 97); or by reason of the absence of any effective alternative means of redress (paragraph 101). The Court explained:
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.138
As of June 2013, 14 States had ratified UNCSI.140 In January 2013, the Italian Parliament passed Law No 5/2013, ratifying UNCSI and providing for compliance with the ICJ Jurisdictional Immunities Judgment.141
This section considers the implementing legislation, reservations or declarations, and legislative discussion of the UNCSI in jurisdictions where this material has been available.
In proceedings in the legislature relating to ratification of UNCSI a representative of the Austrian government stressed, in relation to the special categories of State property granted immunity in Article 21(1)(d) and (e), that it was particularly in the self-interest of the State to protect the cultural heritage against measures of constraint and also that property the subject of scientific, cultural, and historical exhibitions should be protected.142
France consistently favoured a convention of universal application to be applied directly by French courts and to provide greater legal certainty to French enterprises contracting with foreign States once they too had ratified the UNCSI143 and cooperated closely with the proposals of the working group of the Sixth Committee to resolve the five problem areas in the ILC draft, much of which was based on a common position agreed with the UK delegation.144 France signed UNCSI on 17 January 2007 and ratified it by approval on 12 August 2010 without attaching any reservation or declaration. However, as regards the Convention’s application to criminal proceedings, the Rapporteur, Mme Elisabeth Guigou, informed the French Assembly in the review prior to ratification, that UNCSI dealt solely with civil proceedings, with criminal proceedings remaining exclusively governed by customary international law: ‘la convention … porte exclusivement sur les procedures au civil, les procedures pénale restant du resort exclusive du droit coutumier’.
In seeking the Senate’s approval of the French ratification it was stated that few changes to French legislation would be required: reference was made to a provision ‘l’exécution forcée et les mesures conservatoires ne sont pas applicable aux personnes qui bénéficient d’une immunité d’exécution’—‘forcible execution and measure for conservation do not apply to persons which enjoy immunity from enforcement (No 91-650 of 9 July 1991, amended by Law No 2005-1678 of 28 December 2005) and it was stated that UNCSI served to complete this enactment by specifying the criteria by which to determine whether a State would benefit from immunity in respect of a given property. Also the Code of Civil Procedure, Article 684, line 2 modifying an earlier provision provided, ‘L’acte destinataire a être notifie à un Etat, à un agent diplomatique étranger en France ou à tout outré bénéficiaire de ‘immunité de juridiction est remis au parquet et transmis par l’intermédiaire du ministre de la justice aux fins de signification par voie diplomatique, à moins qu’en vertu d’un règlement communautaire ou d’un traité international la transmission puisse être faite par une autre voie’, which was perfectly compatible with UNCSI, Article 22 which in respect of ‘service of proceedings by writ or other notice instituting a proceeding’ required ‘transmission through diplomatic channels to the Ministry of Foreign Affairs concerned’.
However, the Senate was informed that the ratification of UNCSI necessitated the modification of Article 51 of the Code monétaire et financier sur les biens des banques centrales145 in order to permit both pre and post-judgment measures of constraint in respect of State property as required by UNCSI, Articles 18 and 19 exception (b) where the State earmarked or allocated property for the satisfaction of the claim. This requirement applied, contrary to the provision in the Code monétaire, to State property even though held by a foreign central bank. Mme Guigou commented that so many ‘exceptions to exceptions’ were made to UNCSI’s provision for employment contracts that, in the end, the immunity of the foreign State continued to be the rule. Nonetheless, she stressed that France’s practice was never to invoke immunity with regard to locally recruited employees in diplomatic missions and consular posts as it considered that these employees had a right to resort to a court in the country where they were recruited.
Although UNCSI’s provisions relating to pre and post-judgment measures of constraint against State property appeared highly technical, they had served genuine purposes as delegates would remember when the Swiss enterprise NOGA in order to satisfy outstanding arbitration awards of Russia attached a training ship operated by Murmansk university. In the consequent debate in the French National Assembly, problems of immunity and enforcement relating to the Middle East, Libya, and Russia were raised and the absence of signature or ratification by the US, Canada and Argentina were commented on.
Italy’s recent practice has demonstrated a commitment to implementing the Jurisdictional Immunities judgment and, as part of that process, becoming a party to UNCSI.146
In the aftermath of the ICJ’s Jurisdictional Immunities judgment, Italy pledged to implement the judgment, ratify UNCSI, and ensure that the domestic courts would not hinder the implementation of the ICJ judgment.147
Before any of these steps could be taken, the First Criminal Division of the Italian Supreme Court was seised of a challenge to a Court of Appeal judgment that had applied the principle of Ferrini. The Supreme Court reasoned that, under Article 94 of the UN Charter, all States are bound by ICJ’s decision, and upheld Germany’s immunity from civil claims brought by Italian war crime victims, even in the absence of any new legislation.148 In doing so, the Supreme Court overruled its earlier decisions and ‘put to an end its decade-long effort to find an exception to the well-known rule of customary international law providing for State immunity from foreign civil jurisdiction for acts iure imperii’.149
Law No 5/2013, passed in January 2013, ratified UNCSI and extended the scope of the norm in the Code of Civil Procedure which lists the available grounds for a party to seek revocation of a final judgment of the Supreme Court or of a lower court. Law 5/2013 introduced the possibility of re-opening proceedings in which a final decision had been reached in disputes in which, Italy being a party, the ICJ had ‘excluded the possibility to subject a specific conduct of another State to civil jurisdiction’. In proceedings where no final decision has yet been reached, the Law calls for the judge hearing the case to declare Italy’s lack of jurisdiction.150 Since the Law was implemented, the Supreme Court has denied jurisdiction in cases against Germany.151
Japan, along with Sweden, is one of the ratifying States that has enacted specific legislation giving effect to UNCSI.
Japan has consistently placed importance on the codification of customary international law relating to State immunity and gave its support to the ILC, Sixth Committee, and Working Groups in its codification. The Japanese government is a party to UNCSI having signed it on 11 January 2007 and lodged an acceptance on 11 May 2010. Japan has also enacted the Japanese Act on Civil Jurisdiction over Foreign States 2010 (ACJFS). Under the Japanese Constitution, international treaties take precedence over domestic law and the ACJFS will accordingly be read in harmony with UNCSI. The Act came into force on 1 April 2010.152
In a detailed review of ACJFS’s provisons and their comparison to those in UNCSI and the practice of Japanese courts, Professor Yakushiji provides the following summary:
Article 4 of the ACJFS which reads ‘Foreign States shall be immune from the jurisdiction … except as provided in this Act’ seems to capture the intent of drafters that the rule is immunity and exceptions to this rule are limited to exceptions explicitly mentioned in the Act. The exceptions enumerated in the Act substantially coincide with those set forth in the Convention, although the precise formulation of corresponding articles is different article by article. The provisions of the Act concerning measures of constraint are also modelled after those of the Convention, although according to Japanese law, both the temporary restraining order and the civil execution order against property are always given as exercises of civil jurisdiction with respect to the proceedings of pre-judgment or post-judgment measures of constraint against property.153
Definition
As regards the Convention’s definition of the State in Article 2, one of the purposes of the enactment of ACJFS is to enable its application to any foreign State including a non-contracting party to UNCSI without discrimination and to do so before entry into force of the Convention. An unrecognized State or entity not recognized by Japan as a State, such as Taiwan or North Korea, is not covered by UNCSI and their status before a Japanese court will be decided without reference to that Convention.154 The difference in the wording in ACJFS, Article 2(ii) in the definition of a constituent unit ‘entitled to perform acts in the exercise of sovereign authority’, and (iii) an agency or instrumentality ‘empowered to perform acts in the exercise of its sovereign authority’ (limited to cases where they are performing acts in the exercise of sovereign authority) may confer a wider power on the former, as has been applied in a case by the Supreme Court, to entitle the State of Georgia to immunity in respect of sovereign acts performed on its own account and not only in respect of acts when exercising the authority of the federal State of the US.155
Exclusions
ACJFS excludes criminal proceedings (Articles 1 and 4) and omits any express reference to the immunities of the foreign State’s military forces. As regards Article 3, Privileges and Immunities not affected by the Convention, in the course of drafting the ACJFS an express exclusion of the application of UNCSI to military forces of the foreign State was proposed but Article 3 in its final form was redrafted more widely to provide a ‘without prejudice’ clause to all relevant treaties. It reads: ‘The provisions of this Act are without prejudice to the privileges and immunities enjoyed by foreign States under treaties and established law.’156
It follows from the general scope of the ‘without prejudice’ provision in ACJFS’s Article 3 that the privileges and immunities of members of diplomatic mission and consular posts referred to in UNCSI, Article 3(1), and of heads of State ratione personae in UNCSI, Article 3(2), are excluded from ACJFS’s application since the first are covered by the 1962 and 1964 VCDR and VCCR,157 and the second by ‘established law’. A further consequence of ACJFS Article 3 is that proceedings relating to military activities of the US armed forces continue to be regulated by the Agreement on the Status of US forces or by customary international law.158
UNCSI’s sole reference to customary international law is found in the preamble of UNGA’s Resolution 59/38 (2004), adopting UNCSI. The inclusion in Article 3 of the term ‘established law’ directs Japanese courts in applying immunity to have regard to new developments as well as existing customary international law.159
Consent of the foreign State
ACJFS, Articles 5, 6, and 7 apply UNCSI’s rule relating to consent, express or by act, constituting waiver of a foreign State’s immunity and are in accordance with the decision in the Pakistan Loans Case where the Japanese Supreme Court held: ‘in cases where a foreign State has clearly manifested the intention to subject itself to the civil jurisdiction of Japanese courts by explicit provisions in a written contract with a private person stating that effect would arise from the contract, the State in principle shall not be immune from the civil jurisdiction of the Japanese courts in regard to such proceeding’.160
Differences in drafting in ACJFS from UNCSI Articles 6(2)(b), 9, 11, 12, and 13, including the omission of Article 22(1)(b) (service of process in accordance with any special arrangement for service between the claimant and the State concerned), are explained by reference to differences in the Japanese language, Japanese substantive, procedural or private international law rules, or prior understanding of the law in decisions of the Supreme Court.
Jurisdiction
ACJFS follows closely, as regards the requirement of jurisdiction and jurisdictional links for the exception to immunity, the UNCSI’s provisions. It contains a general chapter on the scope of jurisdiction over foreign States declaring in Article 4 that ‘Foreign States shall be immune from the jurisdiction (the civil jurisdiction of Japan) except as otherwise provided in this Act’; no additional requirements as to a jurisdictional link with Japanese territory is given in the exceptions for commercial transactions, Article 8; arbitration agreements, Article 16; and operation of a ship, Article 15, but all the other exceptions include the additional links required in UNCSI.
Exceptions
UNCSI’s Articles 2(2) and 10(1) are combined in the exception for commercial transactions in Article 8 of the ACJFS to confine the scope to ‘civil law commercial transactions’. Although not apparent from the English translation, the different wording of this article from UNCSI is intended to permit the Japanese courts to continue when determining whether a transaction is non-immune to apply the ‘Two-step approach’ of the Pakistan Loans Case, whereby no immunity is enjoyed in respect of a private law civil transaction unless there are special circumstances which the exercise of civil jurisdiction by Japanese courts is likely to infringe the sovereignty of the foreign State. Whilst it is intended that the determination of such special circumstances is to satisfy an objective standard, undoubtedly this may introduce some uncertainty regarding the application of the exception.161
In a 2009 Judgment in the Georgia Ports Authority case, the Japanese Supreme Court took a restrictive view of the special circumstances test.162 The proceedings began before the ACJFS entered into force, but the judgment did make reference to the Act. It concerned the dismissal of an employee from the Tokyo office of the Georgia Ports Authority. The Supreme Court considered the employment relationship and the dismissal to be private acts for which Georgia did not enjoy immunity. Even if the case required the court to investigate whether the dismissal was fair or not, and in so doing, to examine on the defendant State’s various policies, this would not constitute a special circumstance in which the exercise of jurisdiction by Japan could infringe on sovereignty.163
The Two Step approach may affect the application of the tort exception in ACJFS, Article 10; Japanese case-law is uncertain: thus, in the Yakota Base Case the damage caused by the training night flights of US planes was held immune as sovereign activity, but the forced collection of the custody charge by staff on behalf of the airline from persons who were denied landing pursuant to local immigration laws was treated as non-immune as being an anticipated cost of the return transport to their departure point which the airline incurred where such persons were refused entry.164
Norway signed UNCSI on 8 July 2005 and ratified it on 27 March 2006 with a declaration in the following terms:
Recalling inter alia resolution 59/38 adopted by the General Assembly of the United Nations on 2 December 2004, in which the General Assembly took into account, when adopting the Convention, the statement of 25 October 2004 of the Chairman of the Ad Hoc Committee on Jurisdictional Immunities of States and Their Property introducing the Committee’s report, Norway hereby states its understanding that the Convention does not apply to military activities, including the activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, and activities undertaken by military forces of a State in the exercise of their official duties. Such activities remain subject to other rules of international law. Similarly, as also noted in the said statement, the Convention does not apply where there is a special immunity regime, including immunities ratione personae. Thus, the express mention of heads of State in Article 3 should not be read as suggesting that the immunity ratione personae of other State officials is affected by the Convention.
Furthermore, in cases where it has been established that property of a State is specifically in use or intended for use by the State for other than government non-commercial purposes and is in the territory of the State of the forum, it is the understanding of Norway that Article 18 does not prevent pre-judgement measures of constraint from being taken against property that has a connection with the entity against which the proceeding was directed.
Finally, Norway understands that the Convention is without prejudice to any future international development in the protection of human rights.
The Spanish Council of State, 25 November 2010, recommended Spain’s accession to UNCSI, observing that consultation with the departments of Foreign Affairs, Commerce and Employment etc, showed that the exceptions to immunity, particularly those relating to commercial transactions and contracts of employment, were in line with Spanish practice and the trend of the courts to exercise their jurisdiction over such matters (vide the judgment of the Supreme Court of 10th February 1986)165—‘las excepciones a la inmunidad de jurisdicción de los Estados (particularmente en materia de transacciones mercantiles y contratos de trabajo) son conformes a la práctica española y a la tendencia de los tribunales y juzgados de afirmar su jurisdicción en tales casos (véase las Sentencias del Tribunal Supremo de 10 de febrero y de 1 de diciembre de 1986)’. ‘Further that it was practical to proceed to adoption of the Convention in order to establish an objective marker as regards immunity from execution given that there a growing tendency of employment tribunals to take measures of embargo against assets of States accredited to Spain in contravention of the 1961 VCDR’—‘de establecer un marco regulador objetivo cobra especial importancia en materia de inmunidad de ejecución de los Estados, dado que se viene observando una tendencia creciente de los juzgados de lo social a decretar medidas de embargo contra los bienes de las Embajadas acreditadas en España, en violación del Convenio de Vienna de Relaciones Diplomáticas de 1961’. Spain acceded to the UN Convention on 21 September 2011.166
Sweden signed UNCSI on 15 September 2005 and ratified it on 23 December 2009 with a declaration in similar terms to that of Norway set out above. It has enacted national legislation in precisely the same terms as the Swedish version of UNCSI.
Switzerland signed UNCSI on 19 September 2006 and ratified it on 16 April 2010. It made the following declarations:
General interpretative declaration:
In accordance with General Assembly resolution 59/38, adopted on 2 December 2004, Switzerland hereby understands that the Convention does not cover criminal proceedings;
Interpretative declaration concerning article 12:
Switzerland considers that article 12 does not govern the question of pecuniary compensation for serious human rights violations which are alleged to be attributable to a State and are committed outside the State of the forum. Consequently, this Convention is without prejudice to developments in international law in this regard;
Interpretative declaration concerning article 22, paragraph 3:
If the State concerned is a Swiss canton, Switzerland considers that ‘official language’ should be understood as the official language or one of the official languages of the canton in which process is to be served.
There was strong Swiss support for the ratification of UNCSI, 30-00 without further discussion in the Upper House (Conseil d’Etat/Ständerat); and 137: 57 in the Lower House (Conseil National/Nationalrat) where there was a minority group of a conservative party that was against the ratification. They argued that there was no need for ratification as the jurisprudence of the Swiss Federal Court was working satisfactorily. Furthermore they said that UNCSI in some respects—Article 2(2) and the possible consideration of the purpose of the contract—lacked precision, making it open to foreign courts to interpreting the clause so as to decide that a certain activity was not iure imperii. There was no popular vote on the ratification. The Government prepared a report setting out UNCSI’s articles and elucidating the changes necessary in Swiss practice.167
Whilst welcoming Swiss ratification since ‘Switzerland, as a host-state to many international conferences and organisations, has a particular interest in a strong legal framework in this field because of the disproportionately large scope of activities conducted by foreign States on its territory’, a prominent Swiss law firm comments on the ‘seemingly sweeping changes brought about by the Convention on certain specific points. The Convention has the potential to replace well-established notions of Swiss law on state immunity, eg, Binnenbeziehung. More importantly, it may have a significant impact on how private claimants can enforce judicial decisions on monetary assets held by foreign states in Switzerland. This was hailed by the Swiss Government as a major improvement but it remains to be seen how Swiss courts will react to the new framework set up by the Convention’.168
Iran ratified UNCSI on 29 September 2008, having signed it on 17 January 2007. Saudi Arabia acceded to the Convention on 1 September 2010. Both States have made a reservation to UNCSI, Article 27(2). The reservation of Iran reads:
the Government of the Islamic Republic of Iran does not consider itself bound by the provisions of Article 27, paragraph 2 of the Convention. The Government of the Islamic Republic of Iran affirms that the consent of all parties to such a dispute is necessary, in each individual case, for the submission of the dispute to the International Court of Justice.
The government of the Islamic Republic of Iran can, if it deems appropriate, for the settlement of such a dispute, agree with the submission of the dispute to arbitration in accordance with its related domestic law.
The reservation of Saudi Arabia is in the same terms but omits the last sentence relating to settlement of disputes by arbitration.
The adoption by the UN General Assembly and signature by 28 States of UNCSI is a considerable diplomatic achievement—‘the culmination of 27 years of sometimes difficult work of the Commission, the Sixth Committee and the Ad Hoc Committee … The Convention may have its deficiencies’. UNCSI provides for the restriction of State immunity solely in relation to the civil jurisdiction of the courts of States involving commercial and private law matters. It does not cover violations of international law save in the case where they also constitute a municipal cause of action or basis for a claim. A separate protocol would seem to be required to extend the Convention in its present form to any such matters.
One cannot ignore the fact that UNCSI is an instrument designed to unify a much disputed area of international law; recognized already in 2003 ‘for a threshold of consensus and confront states in a significant way’169 and to produce a universally applicable legal regime on state immunity, ‘a matter which is certainly of growing importance’.170