This edition, as with the previous editions, provides an account of the law relating to State immunity with particular emphasis on its application of the restrictive doctrine—a general rule of immunity for acts in exercise of sovereign authority with exceptions for commercial transactions and private law acts. The three models set out in Chapter 2—Absolute, Restrictive, and Procedural—seek to explain the evolution of the law of State immunity and its application in State practice by UK SIA and US FSIA legislation and the decisions in major common law and civil law jurisdictions and, increasingly, in regional courts, where decisions of the ECtHR have received particular attention. The culmination of some 30 years’ work of the ILC and UN GA Sixth Committee and its Working Group in the 2004 UN Convention on Jurisdictional Immunities of States and their Property led in the second edition of this book to a close examination of UNCSI’s provisions as further supporting the restrictive doctrine of State immunity.
For this third edition, the contribution of the ICJ in four cases—Arrest Warrant, Djibouti v France, Jurisdictional Immunities, and Belgium v Senegal—is of major significance. The 2012 Jurisdictional Immunities Judgment in particular constitutes a valuable clarification by the Court of the law of State immunity; its ruling that the plea of immunity is procedural in character confines the rules of State immunity to the determination of issues relating to the exercise of jurisdiction, with no bearing on questions of wrongfulness, remedy, or responsibility on the part of the foreign State.1 While a useful tool in the regulation of a State’s commercial and private law transactions by national civil courts, immunity is seen at present to be of little relevance for the reparation of breaches of international law, such as grave violations of human rights, committed beyond the jurisdiction of States.
As regards the exercise of jurisdiction, the ICJ expressly noted the principle of territoriality alongside the principle of sovereign equality.2 State practice endorses this approach, with its general requirement of some jurisdictional connection with the forum State territory for the removal of State immunity. The exercise of extraterritorial jurisdiction pursuant to US and recently Canadian legislation over States designated as sponsors of terrorism in respect of death and personal injuries resulting from specified acts of terrorism, wherever committed, offers an alternative solution. But the recent decision of the US Supreme Court in Kiobel v Royal Dutch Petroleum that claims will generally not be allowed under this legislation suggests a likely partial retreat from this extreme position or at most as only allowing ‘where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application’.3
As stressed throughout the book, a territorial link to the territory of the State in which the proceedings are brought is a requirement for an exception to State immunity in State practice and is endorsed in UNCSI. Arguments in favour of an extension of jurisdiction based on ‘direct effect’ have not prevailed. The extension of the tort exception to immunity to non-commercial acts of the State committed in the forum territory has had considerable recognition in the national courts of Western States, and lends some support to the competing principle of the territorial sovereignty of the forum State, as noted by the ICJ itself in the Jurisdictional Immunities Judgment.4
It can, however, be no surprise, given the absence of any relevant law or indeed of any compulsory international procedures for settlement of war claims, that the ICJ decided that the territorial tort exception did not apply to acts committed by a foreign State’s armed forces even on the territory of the forum State during an armed conflict.5
Indeed, the ICJ clarification of the restricted scope of State immunity emphasizes that determination by a single national court is only one method for the settlement of disputes between States.6 Alternative remedies such as using a local Ombudsman, turning to the internal settlement procedures of international organizations and—as the Inter-American Court of Human Rights is demonstrating—engaging in close cooperation with claimants in retrieval of evidence, its presentation, and victim counselling,7 are all ways of achieving reparation and the restoration of relations between States. Although the door may be closed on the possibility of lifting State immunity for human rights violations on the basis of a jus cogens exception or by applying the territorial tort exception, Chapter 14 has demonstrated that the employment exception to immunity has generated increasing litigation and possibilities for relief. It provides a tool for holding States and international organizations accountable for human rights violations that occur in the course of employment (such as intimidation and sexual harassment). Moreover, if a human rights violation occurs in the context of a commercial transaction, the commercial exception may provide a basis for setting aside immunity pursuant to an application of the Restrictive Doctrine (see Chapter 13).
The NML v Argentina decision, holding that no jurisdictional link is required for the commercial transaction exception, represents a departure by UK law. It may perhaps be explained by compliance with the jurisdictional requirement being left to regulation by the procedural conditions for service of a writ. This deviation may, however, indicate a more fundamental difference in approach, namely that in respect of some ‘garden variety’8 private law transactions there are common principles of commercial law based on good faith—a jus gentium—so widely accepted and approved that no jurisdictional link with a forum is required.
In the light of this potential ‘universal approach’ connection, three possible areas of reform have been indicated in this review of State immunity. First, it is suggested that there should be some adjustment to the absolute nature of immunity of State property which continues to be categorized as in use for sovereign purposes when invested in commercial markets for the purpose of economic gain; the immunity of such State property should be removed, at least to the extent of the claims of a commercial nature of parties whose work assisted in the enhanced status and value of State property.9 There has to be a balance between the uniformity of law applicable to everyone and immunity of the State. For sovereign funds, where they are used solely for public good and objectively so shown to be, greater transparency may provide a sufficient remedy.
Secondly, English lawyers should consider more closely the French approach to enforcement of arbitration awards. This approach unites the waiver given to immunity from adjudication as including waiver from immunity from enforcement currently treated as a distinct regime, without any requirement as to the giving of further consent. French practice (see Chapter 16) treats consent to adjudication by an arbitral tribunal as extending to waiver in respect of immunity of State property in respect of an arbitral award made by the tribunal. Whilst greater clarity as to the scope and limits of the French approach requires investigation,10 it may offer one means of bringing recalcitrant States closer to honouring their commercial commitments.
Thirdly, if this ‘universal approach’ connection underpins the UK’s commitment that commercial law should be applicable to all-comers regardless of political colour or bias, a step to advance it would be for the UK to proceed alongside France, Italy, Norway, Spain, Sweden, and Switzerland, among other States, to ratify the UN Convention. UNCSI, for all its faults, provides a common standard for the limitation of State immunity in respect of commercial transactions.11 The slow rate of ratification of UNCSI and the indifference of the US are disappointing. However, it has acquired an influence more akin to a treaty in force. Its provisions have been considered carefully by the ICJ in the Jurisdictional Immunities Judgment and its Articles have been applied by the ECtHR even to non-States parties.12 National courts of non-States parties (such as the UK) have cited UNCSI in their judgments. It could be that what we are seeing is the ‘provisional application’ of UNCSI.13 It is for consideration whether such provisional application of UNCSI (though unincorporated or unratified) can generate a legitimate expectation that administrative officials should act in accordance with its terms; such an expectation may serve to remove the lesser bar of State immunity.
In addition to proposals for reform, a final ‘taking stock’ must also consider the evolution of the rules of immunity. In the Jurisdictional Immunities judgment, the ICJ introduced a possibility of an immunity of a different scope available to a State official in respect of the commission of the same acts as a State, a situation already to some extent to be found in the varying scope of immunities enjoyed by international organizations, diplomats, consular officials, and visiting armed forces (see Chapter 19).14 The US Supreme court in Samantar v Yousuf recognized that a non-statutory (non-FSIA) ‘common law’ immunity applies to a State official. Here a different ‘split’ may occur—between high ranking and ordinary State officials—with the high ranking officials, particularly the troika of head of State, head of government and Foreign Minister, retaining immunity when out of office for acts committed while in office in violation of jus cogens norms.15
Indeed, while the goal of UNCSI was to harmonize approaches to State immunity, its incorporation by legislation in national legal systems is likely to lead to the courts of different States developing further differences in the scope of the immunities enjoyed by the different emanations of the foreign State.
This loss of a single concept and the inevitable comparisons to be made of the disregard of immunity in respect of an act for which immunity is afforded for a similar act by a different emanation of the State may increasingly reduce the justification and logic for maintaining any immunity across the whole area of the exercise of jurisdiction by national courts.
One question for the future stands out: is the loss of a single unifying concept of immunity to be deplored or welcomed?