From the varying State practice described in Part II, an identification of the common ground based on the restrictive doctrine which has contributed to the content of the provisions of UNCSI is set out in the chapters of this Part III. This should assist in determining the extent to which State practice, national legislation, and decisions of national courts support the formulation of the UNCSI rules relating to State immunity. Minor differences in application can be disregarded provided that the weighing up of the balance of State and private party interests essentially arrives at the same outcome. This was the method adopted by the European Court of Human Rights when, in determining whether State immunity legitimately barred a party’s right of access to a court under Article 6(1) in proceedings relating to torture, assault by military personnel, and employment, it sifted through national decisions relating to the exceptions for claims for personal injuries and discrimination in recruitment for a post in the diplomatic service,1 and more recently by the International Court of Justice (ICJ) in a methodical review of the relevant State practice in the Jurisdictional Immunities case.2 In that case the ICJ, in seeking for the customary international rule relating to State immunity for acts of a State’s armed forces on another State’s territory, resorted first to State practice in the form of national legislation.3 The Court next turned to State practice in the form of judgments of national courts.4 Having reviewed such decisions in the national courts of France, Slovenia, Poland, Belgium, Serbia, Brazil, and Germany and the ECtHR, the ICJ concluded that, apart from the judgments of the Italian courts which were the subject of the proceedings, and decisions of certain courts in Greece,5 ‘State practice in the form of judicial decisions supports the proposition that State immunity for acta jure imperii continues to extend to civil proceedings for acts occasioning death personal injury or damage to property committed by the armed forces … of a State in the conduct of armed conflict, even if the relevant acts take place on the territory of the forum State’ (paragraph 77) (for a summary of the decision, see Chapter 5; and for reference to specific issues, see the Index).
The definition of the State to which the rule of immunity applies is an important element in the operation of the rules and UNCSI’s treatment of this subject is set out in Chapter 10 which follows. It is generally recognized that the bar of immunity is removed by the consent of the State to the exercise of jurisdiction by the forum State, whether or not a restrictive doctrine is applied, and Chapter 11 examines UNCSI’s provisions in respect of such consent by reference to state practice.
A core issue for the modern justification of the restriction of absolute State immunity is the private law or commercial nature of the activity which forms the subject of a claim before a national court and supplies the distinction between sovereign governmental acts and private acts on which the rules are based. Chapter 12 provides a brief overview of the categories of acts in the exercise of sovereign authority, a discussion of the basis of this distinction and the criteria to support it, and a general evaluation of the restrictive doctrine.
In Chapter 13 UNCSI’s provisions on the commercial and related exceptions to immunity are each set out and examined by reference to State practice; it covers commercial transactions, intellectual property, companies, shipping, and immovables of the foreign State located in the territory of the forum State. Chapter 14 examines the exception for employment as it pertains to States and international organizations. Chapter 15 addresses the Territorial Tort exception for personal injuries and damage to property.
The exception for arbitration agreements is dealt with separately in Chapter 11. As an elaboration of a State’s consent to the forum State’s jurisdiction it seems appropriate to locate it in the chapter which deals with the consent of the State. Over and above these established exceptions to State immunity which now appear in UNCSI, there are a number of areas relating to the application of State immunity which remain controversial and where State practice is conflicting.
The following matters do not appear as exceptions nor are they referred to in UNCSI:
(a) liability as to fiscal obligations. Such an exception only appears in the UK, Australian, Pakistani, Singaporean, and South African legislation. The US FSIA and the Canadian State Immunity Act omit such an exception, as did the 1991 ILC Draft in its final version;
(b) rights of property taken in violation of international law. The US FSIA, section 1605(a)(3) is alone in permitting such an exception;
(c) acts contrary to international law and in particular violations of certain fundamental human rights (for the law in the United States and Canada, see Chapters 6 and 8).
Contravention of international law, particularly a violation of jus cogens, has not yet been accepted, as recently confirmed by the ICJ, as a ground for an exception to State immunity. The general arguments for and against the inclusion of an exception for acts contrary to international law have already been set out Chapter 2 (Third Model) and Chapter 3.
Chapters 16 and 17 cover the immunity of the State from enforcement and the measures of constraint against State property. Chapter 16 provides a general survey of State practice and an analysis of the elements involved in immunity from enforcement as provided in Part IV of UNCSI. Chapter 17 sets out the three exceptions which UNCSI permits to immunity from enforcement, followed by an account of the five categories of State property listed in UNCSI as property in use or intended for use for other than governmental non-commercial purposes for which no measure of constraint is allowed without specific waiver relating to the particular category and draws some general conclusions.