Kazakhstan Ministry of Finance and National Bank of Kazakhstan v. Ascom Group SA, Anatolie Stati, Gabriel Stati, Terra Raf Trans Traiding Ltd

2021 ◽  
Vol 195 ◽  
pp. 387-413
Keyword(s):  
United Nations ◽  
Central Bank ◽  
International Law ◽  
The State ◽  
Content Type ◽  
Customary International Law ◽  
State Immunity ◽  
National Bank ◽  
United Nations Convention ◽  
Ministry Of Finance

387State immunity — Immunity from execution — Customary international law — United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004 — Articles 19 and 21 — Whether property of a State central bank immune from measures of constraintArbitration — Post-Award enforcement — Attachment — Whether property of a State central bank immune from attachment in satisfaction of an arbitral award rendered against the State — The law of Sweden

Overview of Sources of Law of State Immunity

2018 ◽  
Author(s):  
Edward Chukwuemeke Okeke
Keyword(s):  
United Nations ◽  
International Law ◽  
Comprehensive Approach ◽  
European Convention ◽  
Customary International Law ◽  
National Legislation ◽  
State Immunity ◽  
Treaty Law ◽  
United Nations Convention ◽  
The Law

This chapter is an overview of the sources of the law of State immunity. It examines international law and select national legislation on State immunity. The section on international law examines treaty law and customary international law. With respect to treaty law, it discusses the 2004 United Nations Convention of the Jurisdictional Immunity of States and Their Properties, and the 1972 European Convention on State Immunity. The 2004 United Nations Convention, which built on the experience of the 1972 European Convention, as well as the practice and legislation of various States, sought to provide a comprehensive approach to the complicated issue of State immunity and codify the restrictive doctrine of State immunity. Although the 2004 United Nations Convention has not yet entered into force, some courts and commentators have referred to some of its provisions as codification or evidence of customary international law on State immunity.

Book III Privileges and Immunities, 12 Privileges and Immunities of the State, The Head of State, State Officials, and State Agencies

2016 ◽  
Author(s):  
Fox Hazel
Keyword(s):  
International Law ◽  
The State ◽  
Legal Person ◽  
State Agencies ◽  
General Description ◽  
Customary International Law ◽  
State Immunity ◽  
Head Of State ◽  
Written Form ◽  
The Law

This chapter provides an account of the immunities of the State, its officials, and state agencies in international law. It first offers a general description of the plea of state immunity and a brief historical account of the development of the law of state immunity. Then it briefly sets out the law relating to the immunities of the State itself as a legal person, followed by the law applicable to its officials and to state agencies. In addition an account based on customary international law will be provided on the immunities of senior state officials. The chapter concludes by taking note of the extent to which the practice of diplomatic missions at the present time accords with requirements of state immunity law as now set out in written form in the 2004 UN Convention on the Jurisdictional Immunities of States and their Property.

A HISTORIC DECISION OF THE ITALIAN CONSTITUTIONAL COURT ON THE BALANCE BETWEEN THE ITALIAN LEGAL ORDER’S FUNDAMENTAL VALUES AND CUSTOMARY INTERNATIONAL LAW

2015 ◽  
Vol 24 (1) ◽  
pp. 37-52
Author(s):  
Giuseppe Cataldi
Keyword(s):  
International Law ◽  
The State ◽  
Legal Order ◽  
Constitutional Court ◽  
Customary International Law ◽  
National Courts ◽  
State Immunity ◽  
Italian Law ◽  
The Icj ◽  
Fundamental Values

In judgment No. 238 of 22 October 2014, the Italian Constitutional Court ruled on the legitimacy of certain norms of the Italian legal order which relate to the implementation of the International Court of Justice’s (ICJ) judgment in theJurisdictional Immunities of the State case. In this case the Court found that customary international law concerning State immunity for war crimes and crimes against humanity could not enter the Italian legal order, as it was incompatible with the basic principles of the Italian Constitution. Judgment No. 238/2014 thus reveals a key connection between domestic fundamental values and internationally recognized values. If this connection exists, national courts should decline to give effect to an international decision if it contravenes a fundamental obligation under national as well as international law. Thus, domestic courts may play the role of defenders of the international rule of law from international law itself. According to international law, as well as Italian law, there is no doubt that enforcement of an ICJ decision is mandatory for the State to which the decision is directed. In the case under review, however, the requirement to implement the ruling of the ICJ was set aside in order to defer to the requirement to respect the fundamental values of the Italian legal system, in accordance with the theory of “counter-limits” as developed by the Constitutional Court. This conclusion appears also consistent with the German order, which renders quite weak any possible reaction, or protest, by that State.

scholarly journals PERLINDUNGAN HAM PEKERJA MIGRAN: KAJIAN NORMATIF KEWAJIBAN INDONESIA BERDASAR PRINSIP-PRINSIP DAN NORMA-NORMA HUKUM INTERNASIONAL

2013 ◽  
Vol 2 (1) ◽  
Author(s):  
Sri Lestari Rahayu ◽  
Siti Muslimah ◽  
Sasmini ,
Keyword(s):  
Human Rights ◽  
United Nations ◽  
International Law ◽  
Migrant Workers ◽  
Legal Argumentation ◽  
Customary International Law ◽  
Legal Principles ◽  
Protection Of Human Rights ◽  
United Nations Convention ◽  
International Conventions

<p align="center"><strong><em>A</em></strong><strong><em>b</em></strong><strong><em>s</em></strong><strong><em>t</em></strong><strong><em>r</em></strong><strong><em>a</em></strong><strong><em>c</em></strong><strong><em>t</em></strong></p><p><em>T</em><em>h</em><em>i</em><em>s research is conducted to get a legal argumentation related to responsibility of Indonesia on protection of its citizen, especially migrant workers. The question will be answered by determining the norms and principles that underlie Indonesia in protecting the human rights of its citizens. The sources of this research are international conventions, customary international law, doctrine, legal instruments in Indonesia and some of publications concerning the state responsibility to protect migrant workers. The legal sources collected by study documentation are analyzed by interpretation and content analysis. The results show that the general legal principles in which become basic of Indonesia associated with its obligation to provide protection of human rights of women migrant workers are based on the principle of nationality/citizenship of Indonesia, the principle of pacta sunt servanda, the principle of exhaustion of local remedies, the shift in meaning of the sovereignty principle and recognition principles theory of natural rights which inherent in every human being. While the norms are contained in the Migration for Employment Convention (Revised), 1949 (No. 97), the Convention on Migrant Workers (Supplementary Provisions), 1975 (No. 143), United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1</em><em>9</em><em>9</em><em>0</em><em>.</em></p><p><strong><em>Key words: </em></strong><em>human rights, migrant workers, obligations, international law</em></p><p align="center"><strong>A</strong><strong>b</strong><strong>s</strong><strong>t</strong><strong>ra</strong><strong>k</strong></p><p>Penelitian ini dilakukan untuk memperolah gambaran yang lebih mendalam mengenai tanggung jawab Negara Indonesia dalam memberikan perlindungan terhadap hak-hak warga negaranya, khususnya pekerja migran. Penulis mencoba menjawab permasalahan tersebut dari sisi normatif yaitu dengan mendasarkan pada norma-norma dan prinsip-prinsip yang mewajibkan setiap negara termasuk Indone- sia untuk melindungi hak asasi warga negaranya. Bahan penelitian yang digunakan meliputi perjanjian- perjanjian internasional, doktrin, hukum kebiasaan internasional, peraturan perundang-undangan di Indonesia, serta beberapa publikasi yang terkait dengan kewajiban negara atas perlindungan pekerja migran. Bahan hukum yang dikumpulkan melalui studi dokumen selanjutnya dianalisis melalui interpretasi teks dan analisis isi. Hasil pembahasan menunjukkan bahwa prinsip-prinsip hukum umum yang menjadi dasar Indonesia terkait dengan kewajibannya untuk memberikan perlindungan HAM pekerja migran didasarkan pada prinsip nasionalitas, prinsip <em>pacta sunt servanda</em>, prinsip <em>exhaustion of local remedies</em>, pergeresan makna prinsip kedaulatan dan diakuinya prinsip teori hak-hak kodrati yang melekat dalam diri setiap manusia. Sedangkan norma-normanya terdapat dalam Konvensi Migrasi untuk Pekerjaan (Revisi), 1949 (No. 97), Konvensi Pekerja Migran (Ketentuan-Ketentuan Tambahan), 1975 (No. 143), <em>United Nations Convention on The Protection of The Rights of All Migran Workers and Member of Their Families </em>tahun 1990.</p><strong>Kata kunci: </strong>hak asasi manusia (HAM), pekerja migran, kewajiban, hukum internasional

The Enrica Lexie Award Amid Jurisdictional and Law of the Sea Issues

2021 ◽  
Vol 30 (1) ◽  
pp. 167-190
Author(s):  
Giuseppe Cataldi
Keyword(s):  
United Nations ◽  
International Law ◽  
Point Of View ◽  
Law Of The Sea ◽  
Customary International Law ◽  
Arbitral Award ◽  
Merchant Ship ◽  
Functional Immunity ◽  
United Nations Convention

This article analyzes the Enrica Lexie Arbitral Award, first of all, in relation to international law issues concerning the application of the United Nations Convention on the Law of the Sea (UNCLOS). The article then focuses on the question of the functional immunity of the two marines, from the point of view of the Tribunal’s assertion of its incidental jurisdiction to deal with the matter, as well as of the Tribunal’s affirmation of the existence of a customary international law rule applicable in the present case. Both conclusions appear unconvincing, also in light of the role of the two marines on board a merchant ship. In any case, the fact remains that the judgment has the merit of finally putting an end to a long-standing dispute, to the satisfaction of the two parties involved.

Art.48 Denunciation

2018 ◽  
Author(s):  
Bantekas Ilias
Keyword(s):  
United Nations ◽  
International Law ◽  
Vienna Convention ◽  
Persons With Disabilities ◽  
Customary International Law ◽  
United Nations Convention ◽  
The United Nations ◽  
The Law

This chapter examines Article 48 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). A state may express its consent to no longer be bound by a treaty to which it is a party by way of denunciation, withdrawal, or suspension of the treaty in question. Article 48 CRPD does not expressly allow states to withdraw from or suspend the operation of the Convention. Although it only provides for denunciation through a written notification the effect of which commences a year after it is received by the depositary, Article 48 CRPD is silent as to whether a state may denounce the entire Convention or also parts of it. This matter is dealt with under the general provisions of the Vienna Convention on the Law of Treaties, which reflect customary international law.

Art.41 The Secretary-General of the United Nations Shall Be the Depositary of the Present Convention

2018 ◽  
Author(s):  
Bantekas Ilias
Keyword(s):  
United Nations ◽  
International Law ◽  
Secretary General ◽  
The Body ◽  
Vienna Convention ◽  
Persons With Disabilities ◽  
Customary International Law ◽  
United Nations Convention ◽  
The United Nations ◽  
The Law

This chapter examines Article 41 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). In accordance with article 76(1) of the Vienna Convention on the Law of Treaties, the designation of the depositary of a treaty may be made by the negotiating states, either in the treaty itself or in some other manner. Practice, as is the case with Article 41 CRPD, suggests that depositories are designated in the body of the treaty. The depositary is expected to undertake certain functions and assume several powers under customary international law, none of which are explained in the depositary provisions of multilateral treaties. The functions and powers of the depositary should be distinguished from other functions and powers entrusted to the same entity under other provisions of the same treaty.

Waiver of State Immunity and Enforcement of Arbitral Awards

2015 ◽  
Vol 6 (2) ◽  
pp. 199-232 ◽  
Author(s):  
Ben JURATOWITCH
Keyword(s):  
Hong Kong ◽  
United Nations ◽  
Democratic Republic ◽  
The State ◽  
Arbitral Award ◽  
State Immunity ◽  
General Terms ◽  
Republic Of The Congo ◽  
United Nations Convention ◽  
Court Proceedings

If a state has waived state immunity by agreement with a non-state entity in advance of court proceedings brought by that entity to enforce an arbitral award against that state, then the enforcement court should give effect to the waiver. That is the opposite of what the Hong Kong Court of Final Appeal decided in Democratic Republic of the Congo v. FG Hemisphere, but it is the approach reflected in the 2004 United Nations Convention on the Jurisdictional Immunities of States and their Property. After examining that Hong Kong case and that United Nations Convention, this paper considers the position in various jurisdictions. The prevalent position is in general terms that consent to arbitration usually constitutes waiver of state immunity from jurisdiction of a court to recognize the arbitral award as creating a debt binding on the state, but usually does not constitute waiver of state immunity from execution of that debt against the assets of the state. The conclusion of the paper includes a model waiver of state immunity from jurisdiction and from execution.

Art.46 Reservations

2018 ◽  
Author(s):  
Bantekas Ilias
Keyword(s):  
Human Rights ◽  
United Nations ◽  
International Law ◽  
Persons With Disabilities ◽  
Customary International Law ◽  
Treaty Provision ◽  
Legal Effect ◽  
Universal Human Rights ◽  
United Nations Convention ◽  
The United Nations

This chapter examines Article 46 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which deals with the issue of reservations. Reservations are a common feature of multilateral treaties, although there are calls to reduce their frequency or volume in human rights or treaties of a humanitarian nature. The legal effect of a reservation is to exclude or modify the binding nature of a treaty provision for the reserving state. In the context of a universal human rights treaty this entails several dangers. For one thing, since the CRPD claims not to create new rights but instead relies on existing ones, any reservation thereto will automatically constitute a regression on entrenched rights, something that is unacceptable. In equal manner, since the vast majority of the ‘existing’ rights in the CRPD are also part of customary international law, reservations thereto will negate customary obligations, which is again unacceptable.

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