Part II of this work addresses the question of where the law of State immunity is to be found. With the adoption of the UN Convention on the Jurisdictional Immunities of States and their Property (UNCSI), the possibility of a single source of the relevant international law has emerged and the starting point for any discussion of the international law relating to State immunity is now the text of that Convention. Fourteen States, of the required number of 30 to bring it into force, have now ratified the Convention1 and two States, Japan and Sweden, have enacted national laws incorporating the Convention’s provisions. However, until the Convention comes into force, the legal adviser would be unwise to rely upon it as the sole, or even the primary, source of the current international law on State immunity. The legal adviser’s task will be to apply those national laws paying due regard to the relevant provisions of UNCSI. He or she may also have regard to the national implementation of UNCSI in the jurisdiction of States Parties; the most recent practice is included in Chapter 9.
Chapter 5 provides a list of the sources, both international and national, of the law of State immunity and a brief survey of relevant treaties and projects for codification in existence prior to the adoption in 2004 of UNCSI.
In earlier editions of this book considerable emphasis was placed on the US and UK legislation and the decisions of their courts and the national courts of western European States as providing evidence of State practice and providing, in the words of Article 38(1)(d) of the ICJ Statute, ‘a subsidiary means for the determination of rules of law’. By reason of the increase in the last 20 years of the determination of issues relating to State immunity by international tribunals, the role of national courts as a source of relevant law may diminish (see below, the Decisions of National Courts, and Chapter 1 under ‘The Role of National Law’). Pre-eminent among such international tribunals is the ICJ as the ‘principal judicial organ of the United Nations’ (UN Charter, Article 92). Judgments of the ICJ have binding effect in respect of any State Party to a case (UN Charter, Article 94(1)) and possess strong persuasive authority for all Member States of the UN.2 In addition, the focus of the area of the application of international law is shifting, away from leading US and western European jurisdictions, to other economically powerful States, in particular China where the recent decision of FG Hemisphere in the Hong Kong Court of Final Appeal3 is of relevance.
The US Foreign Sovereign Immunities Act (FSIA) 1976 was the first national legislation to set out rules for the application of State immunity and its federal courts, until recently, provided over half of all the case-law on State immunity. UK law continues to be particularly relevant given that the structure of the law set out in UNCSI closely follows the form of the UK State Immunity Act 1978. Accordingly, as in previous editions the chapter on Treaties and Projects for Codification is followed by:
State practice as regards the general recognition of the restrictive doctrine of immunity (Chapter 6)
English law (Chapter 7)
US law (Chapter 8)
The 2004 UN Convention on the Jurisdictional Immunities of States and Their Property (Chapter 9).