The objectives of this work are to provide a guide to relevant material, to set out a general balanced view of the present state of the law and to put government lawyers and policy-makers in a position to make appropriate decisions as to its future direction.
The book is divided into five parts: structure and general concepts; sources; the current international law; other immunities; conclusions. Some readers, particularly those seeking an answer to a specific application of immunity, may prefer first to consult Part III which sets out article by article the provisions of the UN Convention on Jurisdictional Immunities of States and their Property (UNCSI) and discusses their application by reference to existing State practice, particularly English and US law. For them, having identified the particular problem, reference to Part I may help to place it in perspective with regard to the general concepts which govern the subject.
This third edition of The Law of State Immunity seeks not only to address recent developments at the national and international levels, but also to try to explain the evolution in the law. Thus, the previous edition’s chapter on ‘The Concept of the State: Theory and the Justification for State Immunity’ has been replaced in this edition by Chapter 2: ‘The Three Models of the Concept of State Immunity’. Our analysis of the third model, Immunity as a Procedural Plea, has been inspired in large part by the 2012 Jurisdictional Immunities Judgment of the ICJ. In the light of that judgment, we use the three models throughout the book to identify and explain trends in the development of the law.
As regards the substantive law on State immunity, we have identified areas that have undergone major developments and deserve closer attention. An increasing proportion of claims made in national courts relating to State immunity concern labour disputes involving a foreign State or an international organization. We have introduced a new Chapter 14: ‘Immunity from Adjudication: The Employment Exception in respect of (1) A Foreign State and (2) An International Organization’ that explores this aspect of the law of State immunity, including the influence of European human rights law. Secondly, we have introduced a separate chapter on the ‘Territorial Tort Exception’ (Chapter 15); the legality validity of this exception has been challenged by the Jurisdictional Immunities Judgment. Thirdly, Chapters 16 and 17 on ‘State Immunity from Enforcement’ has been elaborated in more detail as to the nature of the property and the relationship between immunity from adjudication and immunity from enforcement. In Part IV there is an expanded discussion of developments as regards other immunities: the immunities of individuals acting on behalf of the State (Chapter 18) and the immunities of international organizations and those covered by so-called special regimes (Chapter 19).
Since the publication of the second edition, UNCSI has gained further ratifications, though it has yet to enter into force. Its provisions have nonetheless been cited by national and international courts as evidence of customary international law. We have expanded Chapter 9 to address the legislative and judicial implementation of UNCSI by a number of the States Parties; the advisability of UK ratification is discussed in Chapter 7.
Chapter 4 (Jurisdiction), Chapter 10 (The Definition of the Foreign State) and Chapter 8 (US law) have been substantially revised and updated. At the time of writing, the Jones v UK and Mitchell & Ors v UK cases were still pending before the European Court of Human Rights.
In researching and writing Part IV and the related sections in the chapters on UK law and US law, we have been struck by an increasingly disaggregated or fragmented view of immunity (see Chapter 20).
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In this edition Hazel Fox, the sole author of the previous two editions has been joined by Philippa Webb. With an LLB from the University of New South Wales, Australia, an LLM and JSD from Yale, legal practice with Baker & Mackenzie, the UN Secretariat and the ICC Prosecutor’s Office, and service as the legal officer and special assistant for three years to Rosalyn Higgins DBE, QC when President of the ICJ, Philippa was amply qualified to share the considerable labour in revising and accommodating the changes in law required in this new edition. Although only five years having passed since the publication of the second edition, there has been extensive activity—judicial, legislative, and academic—on the law of State immunity, not least in taking due account of the major decision of the International Court of Justice in the 2012 Jurisdictional Immunities case. Whilst it is for the reader to judge its quality, we confidently assert that the editorial partnership derived from Philippa’s wide experience, Hazel’s accumulated knowledge from teaching and practice of State immunity from the UK State Immunity Act 1978 onwards, and the intellectual stimulus and deeper legal analysis resulting from our joint activity provides greater clarity, thoroughness, and readability in this latest edition.
This Preface sets out what is new in this third edition. We are indebted to a number of people who have helped and encouraged us in updating, amending, and reshaping this book. We thank John Louth and Sir Frank Berman for early conversations on the purpose of the new edition and for their encouragement throughout the drafting process. We are grateful to Merel Alstein for her professional assistance and good advice at every stage. Professors Chimène Keitner and David P Stewart provided invaluable assistance with revising the chapter on US law; their contributions have been precise, insightful, and always timely. Alison Macdonald of Matrix Chambers has kindly updated and revised the section on procedure in the chapter on UK law. Peter Quayle of the European Bank for Reconstruction and Development provided (in his personal capacity) excellent comments on the new chapter on the employment exception, especially as it relates to international organizations. Thanks are also due to those who provided comments and information on specific sections of the book: Professor Andrea Biondi, Dr M Baldegger, Professor Lori Damrosch, Professor Carlos Espósito, Professor Keith Ewing, Dr Filippo Fontanelli, Christopher Keith Hall, Katerina Kappos, Professor Mizushima, Dr Roger O’Keefe, Sam Wordsworth, and Nout van Woudenberg. We are grateful for the editorial assistance of Katarzyna Lasinska, whose work was funded by a grant from the Centre for European Law at King’s College London. Finally, we express our sincere gratitude to Judge Sir Kenneth Keith ONZ KBE QC for writing the Foreword to this edition.
Hazel Fox and Philippa Webb
April 2013