The Law of State Immunity by Webb, Philippa, Hazel Fox -- Read -- Imperial Library of Trantor

Index

Cover Page Title Page Copyright Page Contents Foreword by Judge Sir Kenneth Keith Preface and Acknowledgments List of Abbreviations Table of Cases Table of Legislation Table of UNCSI Articles Introduction

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 Structure of the book State immunity as a case study of the structure of international law

Part I General Concepts

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 The role of national 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? Assessment of the Third Model

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 English law Act of a foreign State 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 Universal 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 Decisions of national courts Treaty practice as a source 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

Early development The formulation of a general rule of immunity of the State Common law jurisdictions: UK law US law Other common law jurisdictions The development of the restrictive doctrine in civil law countries Russia and other East European Countries African and Asian States

7. English Law: The UK State Immunity Act 1978

Status General structure of the UK State Immunity Act 1978 Definition of the foreign State Waiver The exceptions to immunity: non-immune commercial activities English law: immunity from enforcement Recognition and enforcement of foreign judgments given against foreign States English law: procedure The Civil Procedure Rules Proof of the status of a foreign State or government Commencement of proceedings against a foreign State Service of Process Burden of proof

8. US Law: The Foreign Sovereign Immunities Act 1976

Immunity from adjudication General structure of the Foreign Sovereign Immunities Act 1976 Jurisdiction Definition of the Foreign State Waiver 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 Status of the Convention Interpretation of the Convention Structure of the Convention The general rule of immunity in the Convention Exclusions 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 Head of State Constituent units and political subdivisions State agencies Representatives of the State: Individuals Central banks

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 Acta jure imperii Acta jure gestionis 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 Legislative history Jurisdictional connection Applicable law to determine cause of action Types of tortious conduct Exclusions 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 Types of coercive measures 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 Consent of the State Allocation of State property by the State Use or intended use for commercial purposes The five categories of State property listed as immune Diplomatic property Military property Central bank property Cultural heritage of the State State property forming part of an exhibition Conclusions with regard to Chapters 16 and 17

Part IV Other Immunities

18. Immunity of Individuals Acting on Behalf of the State

The head of State Immunities of other high-ranking officials Special missions Immunity ratione materiae of State Officials

19. International Organizations and Special Regimes

International organizations Diplomats and the diplomatic mission Consular immunity Visiting armed forces Other issues: private military and security companies and policing and law enforcement

Part V Conclusions

20. Taking Stock

Appendix: The United Nations Convention on Jurisdictional Immunities of States and Their Property Select Bibliography Index Footnotes

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