Foreword by Judge Sir Kenneth Keith
The plea as one of mixed international and municipal law
The functions which State immunity serves
The sources of the law of State immunity
The recent development of the law of State immunity
The three models on which immunity is based
State immunity as a case study of the structure of international law
1. The Institution of Proceedings and the Nature of the Plea of State Immunity
The institution of proceedings
Immunity as a rule of international law
Outline of the plea of State immunity
Proceedings in court: criminal and civil
2. The Three Models of the Concept of State Immunity
The changing role of the independence and equality of the State
The First Model, the absolute doctrine: the independence of the State
The inability of the national court to enforce its judgments against a foreign State
The Second Model: the restrictive doctrine
The distinction into public and private law acts used as legal device in other areas of regulation
The merits and faults of the distinction into public and private law acts
The Third Model: immunity as a procedural exclusionary plea
From bilateralism of rights to a vertical hierarchy?
3. The Plea of State Immunity Distinguished from Act of State and Non-justiciability
Proceedings in national courts where a foreign State affects the court’s exercise of jurisdiction
Special features of proceedings where the State is party
State Practice relating to pleas of Act of State and Non-justiciability: US law
The plea of non-justiciability
Modification where ‘a foothold in domestic law’
Modification where a procedural right of access
Pleas of Act of State, non-justiciability and State immunity compared
4. State Immunity and Jurisdiction: Immunity from the Civil and Criminal Jurisdiction of National Courts
The competing principle of sovereign territoriality
The extraterritorial extension of the State’s jurisdiction
The relationship of immunity to jurisdiction
The distinction into civil and criminal jurisdiction
Additional jurisdictional links in civil proceedings against a State
The exercise of criminal jurisdiction over a foreign State
PART II THE SOURCES OF THE LAW OF STATE IMMUNITY
5. A Review of the Sources: Treaties and Projects for Codification
International conventions relating solely to State immunity
The resolutions of international bodies
Decisions of international tribunals
The 1926 Brussels Convention and the 1934 Protocol
The 1972 European Convention on State Immunity
Projects for codification by governmental and non-governmental bodies
6. The Restrictive Doctrine of State Immunity: Its Recognition in State Practice
The formulation of a general rule of immunity of the State
Common law jurisdictions: UK law
Other common law jurisdictions
The development of the restrictive doctrine in civil law countries
Russia and other East European Countries
7. English Law: The UK State Immunity Act 1978
General structure of the UK State Immunity Act 1978
Definition of the foreign State
The exceptions to immunity: non-immune commercial activities
English law: immunity from enforcement
Recognition and enforcement of foreign judgments given against foreign States
Proof of the status of a foreign State or government
Commencement of proceedings against a foreign State
8. US Law: The Foreign Sovereign Immunities Act 1976
General structure of the Foreign Sovereign Immunities Act 1976 Jurisdiction
Definition of the Foreign State
Exceptions to immunity from adjudication
The Alien Tort Act 1789 and the Torture Victim Protection Act 1991
The Anti-terrorism and Effective Death Penalty Act 1996, the Seventh Amendment to the FSIA
Immunity from execution of the State and its property
Amendment of the FSIA relating to execution against State property
9. The 2004 UN Convention on Jurisdictional Immunities of States and their Property: General Aspects
Legislative history: the ILC’s work and its consideration in the United Nations
Interpretation of the Convention
The general rule of immunity in the Convention
A general assessment of the Convention
Implementation by States which have ratified the Convention
PART III THE CURRENT INTERNATIONAL LAW OF STATE IMMUNITY
10. The Definition of the Foreign State
External attributes as an independent and sovereign State
Recognition of a State or government
Internal attributes of the State
Constituent units and political subdivisions
Representatives of the State: Individuals
11. The Consent of the Foreign State: Waiver and the Arbitration Exception
The nature of consent of a foreign State in proceedings in national courts
Consent under the UN Convention
Consent of the State to the exercise of jurisdiction by the court of the forum State
Consent by choice of jurisdiction as constituting waiver
Counterclaims: matters covered by waiver
Waiver and the arbitration exception
UNCSI Article 17 arbitration exception: limitations
12. The Concept of Commerciality
The Three requirements for an exception to immunity
Techniques for determination of the commerciality of the act
Evaluation of the restrictive doctrine
13. Immunity from Adjudication: the Proceedings in which Immunity Cannot be Invoked, the Commercial and Other Exceptions
The exception for commercial transactions
The exception for ownership, possession and use of property
The taking of property in violation of international law
The exception for infringement of intellectual property rights
Participation in companies or other collective bodies
The exception for ships owned or operated by a State
14. Immunity from Adjudication: The Employment Exception in respect of (1) A Foreign State and (2) An International Organization
(1) A foreign State’s immunity and the exception for employment contracts
The three Models of employment contracts with a Foreign State
The exception for employment contracts in UNCSI Article 11(2)
Circumstances where the rule of immunity still prevails UNCSI Article 11(2)
(2) An international organization’s immunity and the exception to immunity for employment contracts
Allocation of responsibility in respect of employees of an international organization
Employment contracts of the international organization and of the foreign State compared
15. Immunity from Adjudication: The Territorial Tort Exception
Part One: UN Convention Article 12
Applicable law to determine cause of action
Part Two: impact of the Jurisdictional Immunities Judgment
Three controversial types of loss
16. State Immunity from Enforcement: General Aspects
The reasons underlying no enforcement against State property
State Practice: the general rule and modifications
Immunity from enforcement in the UN Convention
State immunity from measures of constraint in connection with proceedings before a court
The distinction into pre- and post-judgment
Coercive measures against the State representative
Subject-matter of coercive measures
17. The Three Exceptions to Immunity from Enforcement and the Five Categories of State Property listed as Immune
The three exceptions to the General Rule of Immunity from enforcement
Allocation of State property by the State
Use or intended use for commercial purposes
The five categories of State property listed as immune
Cultural heritage of the State
State property forming part of an exhibition
Conclusions with regard to Chapters 16 and 17
18. Immunity of Individuals Acting on Behalf of the State
Immunities of other high-ranking officials
Immunity ratione materiae of State Officials
19. International Organizations and Special Regimes
Diplomats and the diplomatic mission
Other issues: private military and security companies and policing and law enforcement
Appendix: The United Nations Convention on Jurisdictional Immunities of States and Their Property