Part III The Current International Law of State Immunity, 11 The Consent of the Foreign State: Waiver and the Arbitration Exception

2015 ◽  
Author(s):  
Fox Hazel ◽  
Webb Philippa
Keyword(s):  
International Law ◽  
The State ◽  
General Requirement ◽  
State Immunity ◽  
Foreign State ◽  
State Practice

This chapter examines UNCSI's provisions in respect of the consent of the State to the exercise of jurisdiction by the forum State, whether or not a restrictive doctrine is applied, by reference to state practice. State practice supports a general requirement of express and separate consent to both adjudication and enforcement of State immunity; which is set out in a detailed scheme in UNCSI in Articles 7, 8, 9, and 17 on express consent, participation in proceedings, counterclaims, and the effect of an arbitration agreement as an exception to immunity and in Part IV, particularly in Article 20, on the effect of consent to jurisdiction to measures of constraint.

Part III The Current International Law of State Immunity, 16 State Immunity from Enforcement: General Aspects

2015 ◽  
Author(s):  
Fox Hazel ◽  
Webb Philippa
Keyword(s):  
International Law ◽  
General Survey ◽  
Commercial Property ◽  
Commercial Use ◽  
National Courts ◽  
State Immunity ◽  
Foreign State ◽  
State Practice ◽  
General Aspects ◽  
State Territory

This chapter provides a general survey of State practice and an analysis of the elements involved in immunity from enforcement as provided by UNCSI in its Part IV on State Immunity from Measures of Constraint. State immunity continues to bar to a very large extent the enforcement of judgments given by national courts against foreign States. Again and again thwarted judgment creditors have sought to attach assets of foreign States within the forum State territory, only to be refused orders for execution by national courts. Nonetheless, change is taking place, with a number of national courts, applying the now widely recognized exception to enforcement in respect of commercial property in commercial use, seeking additional ways to render enforcement immunity less absolute in respect of the adjudicated liabilities of the foreign State.

Part III The Current International Law of State Immunity, 10 The Definition of the Foreign State

2015 ◽  
Author(s):  
Fox Hazel ◽  
Webb Philippa
Keyword(s):  
International Law ◽  
Internal Structure ◽  
The State ◽  
Legal Person ◽  
State Immunity ◽  
General Law ◽  
Foreign State ◽  
The Subject ◽  
Definition Of ◽  
Domestic Law

This chapter sets out definition of the State to which the rule of immunity applies, which is an important element in the operation of the rules and UNCSI's treatment of this subject. In conjunction with this, the chapter discusses two (of three) aspects of the State within the context of State immunity: the external attributes of the State as a legal person by reference to international law; and the internal attributes of the State, as determined by its constitutional and domestic law, which make up its internal structure comprising its organs, departments, agencies, and representatives. Both the external and internal attributes of statehood are also the subject of the general law relating to the State as a subject of international law.

Part III The Current International Law of State Immunity, 17 The Three Exceptions to Immunity from Enforcement and the Five Categories of State Property listed as Immune

2015 ◽  
Author(s):  
Fox Hazel ◽  
Webb Philippa
Keyword(s):  
International Law ◽  
The State ◽  
General Account ◽  
National Courts ◽  
State Immunity ◽  
Foreign State

This chapter sets out the three exceptions which UNCSI permits in regard to immunity from enforcement — express consent, allocation of property, and relating to property of the State in use or intended for use for other than governmental non-commercial purposes. It then relates to the five categories of State property listed in UNCSI as property in use or intended for use for other than governmental non-commercial purposes. Finally, the chapter reveals that from the general account of immunity from enforcement in the previous and the account listed in this chapter, it is plain that the general legal bar on enforcement against States and their property continues with inconsistencies in its application in national courts and non-payment of dues adjudicated as owing by States, particularly in respect of certain categories of claimants such as employees of a foreign State in a third country.

Government of foreign state–proof of existence

1998 ◽  
Vol 57 (3) ◽  
pp. 429-471
Author(s):  
John Hopkins
Keyword(s):  
International Law ◽  
Common Law ◽  
The State ◽  
State Immunity ◽  
Foreign State

THE State speaks with one voice in international law. And that voice, of course, is the executive's, usually, but not invariably, that of the Foreign and Commonwealth Office (FCO). Upon a variety of matters a certificate as to certain facts issued by the executive will be regarded by the courts as conclusive of them. This function was, historically, a matter of common law though there are now several statutory provisions in that regard, most notably the Diplomatic Privileges Act 1964 s. 4 and the State Immunity Act 1978 s. 21 identifying defendants who will have immunity from the jurisdiction (see [1998] C.L.J. 4).

scholarly journals Limits of Targeted Killing in Counterterrorism Operations: An International Law Perspective

2017 ◽  
Vol 3 (1) ◽  
pp. 1-38
Author(s):  
Brian Sang YK
Keyword(s):  
International Law ◽  
Case Law ◽  
The State ◽  
Policy Implications ◽  
Targeted Killing ◽  
Customary International Law ◽  
Lethal Force ◽  
Legal Challenges ◽  
State Practice ◽  
Clear And Present Danger

Despite criticism of targeted killing of suspected terrorists, states continue to justify extensive bases for lethal-force responses to terrorism by arguing that rigid adherence to prescriptive law cannot always be observed in the context of clear and present danger. But, while seemingly cogent, this view wrongly presumes the mutual exclusivity of security considerations and the imperatives of law. It risks exceeding the limits of permissible use of lethal force prescribed in conventional and customary international law. A contrary and more balanced view is advanced in this article. It argues that current international law protecting individuals against intentional killing offers sufficient and practicable guidance for states confronting terrorism. Systematic legal criteria are thus expounded to clarify the legality and admissible limits of targeted killing of suspected terrorists in three contexts: law enforcement, self-defence and armed conflict. With reference to treaties, policy documents and state practice, the article critically examines the preconditions for lawful state-sanctioned killings in counter-terrorist operations. It also identifies the legal challenges and policy implications of resorting to targeted killing. Using comparative case law and operational practice, a legal basis is offered on which Kenya and other nations can effectively tackle the spectre of terrorism within the fair strictures of the law. Every struggle of the state – against terrorism or any other enemy – is conducted according to rules and law. There is always law which the state must comply with.

The Arbitral Award in the Enrica Lexie Case and its Questionable Recognition of Functional Immunity to the Italian Marines Under Customary International Law

2021 ◽  
Vol 30 (1) ◽  
pp. 209-225
Author(s):  
Raffaella Nigro
Keyword(s):  
International Law ◽  
Current Practice ◽  
The State ◽  
Arbitral Tribunal ◽  
Customary International Law ◽  
Criminal Jurisdiction ◽  
State Practice ◽  
Majority Judgment ◽  
Functional Immunity ◽  
The Military

The dispute between Italy and India on the Enrica Lexie incident has finally been decided by the Award handed down on 21 May 2020 by the Arbitral Tribunal to which the Parties had referred the case. After having concluded that it had jurisdiction on the issue of the immunity of the two Italian marines involved in the case at hand, the majority judgment (by three votes to two) affirmed that under customary international law the latter enjoyed functional immunity from the criminal jurisdiction of India. This article will argue that the Arbitral Tribunal’s conclusions are unconvincing, first and foremost, considering that, based on State practice, it is not possible to affirm without reservations that a settled customary rule exists under international law conferring immunity to all State officials, and regardless of the type of functions they perform. In fact, immunity has often been recognized as applying only to certain categories of State officials, and on the basis of the governmental nature of the functions they perform on behalf of the State. Given the doubtful existence under customary international law of a clear rule establishing the functional immunity of all State officials, for all the acts performed in the exercise of their functions, this article argues that the Arbitral Tribunal should have firstly ascertained the existence of a specific customary rule on the immunity of the military abroad, together with the exact content of such rule and, secondly, whether this was applicable in the case of the Enrica Lexie. As current practice stands, military forces abroad are entitled to immunity only under specific circumstances, which do not seem to occur in the present case. In particular, this article maintains that the Italian marines were not entitled to functional immunity. While the acts they performed did indeed fall within their typical functions, they were exercised on behalf of a private subject and not on behalf of the Italian State.

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

Part III The Current International Law of State Immunity, 14 Immunity from Adjudication: The Employment Exception in respect of (1) A Foreign State and (2) An International Organization

2015 ◽  
Author(s):  
Fox Hazel ◽  
Webb Philippa
Keyword(s):  
Collective Bargaining ◽  
International Law ◽  
International Organizations ◽  
International Organization ◽  
Labour Law ◽  
National Courts ◽  
State Immunity ◽  
Foreign State ◽  
Standard Terms ◽  
Sick Pay

This chapter examines the exception for employment as it pertains to States and international organizations. Whilst the employment — its terms for performance, remuneration, including sick pay, overtime, and other benefits, notice and procedures for dismissal or termination — may be provided in an individual contract or imported from standard terms of employment or collective bargaining agreements, there may also be a considerable overlay of statutory or mandatory provisions that the national labour law imposes or in respect of which increasingly the forum State has assumed regional or international law obligations. There are also certain generally accepted practices relating to employment to be taken into account in considering the scope of the immunity of a foreign State and international organization as regards employment claims brought before the national courts of another State.

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