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

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, 15 Immunity from Adjudication: The Territorial Tort Exception

This chapter critically examines the territorial tort exception in UNCSI, Article 12. With some understanding of its reach and any areas of inconsistency, it next evaluates the effect of the Jurisdictional Immunities judgment on this tort exception to State immunity. This evaluation of the ICJ judgment refers to the aspects mentioned above as they apply to a tort exception and apply it briefly to three well-known controversial areas of non-contractual delictual loss — loss arising from armed conflict, environmental loss, and loss resulting from violation of a procedural fundamental human right (violation of substantive human rights being barred by the ICJ ruling). The chapter then states whether the territorial tort exception continues today to represent a restriction on the bar of State immunity.

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

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.

Part IV Other Immunities, 18 Immunity of Individuals acting on behalf of the State

This chapter considers the immunities of individuals; including the head of State, head of government, the Foreign Minister, officials when on special missions, and other personnel in the service of the State to whom immunity is accorded. Immunity based on the nature of the act is sometimes called ratione materiae as compared to ratione personae, which is based on the status of the State that performs the act. But, given that, unlike the individual who may cease to serve, lapse of time is generally irrelevant to the State (who under the restrictive doctrine remains a State throughout), and in order to avoid confusion these terms are confined to immunity enjoyed by State officials.

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

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, 10 The Definition of the Foreign State

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 II The Sources of the Law of State Immunity, 9 The 2004 UN Convention on Jurisdictional Immunities of States and their Property: General Aspects

This chapter provides a general description of UNCSI, the travaux préparatoires relating to the work of the International Law Commission (ILC) and the discussions in the UN General Assembly (UNGA) Sixth (Legal) Committee, and the exclusions, omissions, final clauses, as follows: the legislative history, which covers the ILC's work and its consideration in the UN; the status of the Convention; the Convention's relation to other international conventions; interpretation of the Convention; the structure of the Convention; the general rule of immunity in the Convention; the exclusions and matters omitted from the Convention; a general assessment of the Convention; and its implementation by States who have ratified the Convention.

Part II The Sources of the Law of State Immunity, 6 The Restrictive Doctrine of State Immunity: Its Recognition in State Practice

This chapter recalls the history of the law of State immunity through the decisions of the national courts in both common and civil law jurisdictions and recounts the general recognition in common and civil law jurisdictions of the restrictive doctrine as well as its adoption by national legislation in 1976 in the US (the Foreign Sovereign Immunities Act 1976 (FSIA)) and in 1978 in the UK (the State Immunity Act 1978 (SIA)) followed by similar legislation in some Commonwealths and other countries. The conclusion drawn from State practice in surveys conducted by the International Law Commission (ILC) and the Council of Europe is that there is wide and ever increasing support for a restrictive doctrine of immunity.

Part II The Sources of the Law of State Immunity, 5 A Review of the Sources: Treaties and Projects for Codification

This chapter provides a list of the sources, both international and national, of the law of State immunity and a brief survey of relevant treaties and projects for codification in existence prior to the adoption in 2004 of the UN Convention on Jurisdictional Immunities of States and their Property (UNCSI). Accepting the sources of international law to be as summarized in Article 38(1) of the Statute of the International Court of Justice (ICJ), law-making international conventions are clearly the best source of the principles and rules relating to State immunity. Not until the twenty-first century was the law of State immunity accorded sufficient relevance for States to adopt an international convention dealing with the topic and for the issues which it raised to come before the ICJ.

Part II The Sources of the Law of State Immunity, 7 English Law: The UK State Immunity Act 1978

This chapter reviews the status and general structure of the State Immunity Act 1978 (SIA), and gives an outline of its provisions. The SIA was enacted to codify the restrictive rule of State immunity and bring UK law in line with current international practice, and to enable the UK to ratify the European Convention on State Immunity 1972 (ECSI) and the earlier 1926 Brussels Convention and 1934 Protocol relating to the Immunity of State-owned ships. In addition, it provided for the recognition in the UK of foreign judgments given against the Crown in the courts of States Parties to the ECSI, and it also made provision for the extension to heads of State acting in their private capacity and their families of the privileges and immunities enjoyed by the head of a diplomatic mission and his family.