The Law of State Immunity

The extensive table of cases and legislation and index here serve as most helpful tools in quickly finding the pertinent section. It thereby constitutes an invaluable point of departure for any research dealing with questions of state immunity.

Auteur
Lady Fox CMG, QC (Hazel), was formerly Director of the British Institute of International and Comparative Law and General Editor of the International and Comparative Law Quarterly. She is a member of the Institut de Droit international; Bencher of Lincoln's Inn; Honorary Fellow of Somerville College, University of Oxford; member of the International Law Association Committees on State Immunity, Diplomatic Protection, and Reparation for Victims of War Damage; and Barrister at 4-5 Gray's Inn Square. Philippa Webb is Lecturer in Public International Law at the Dickson Poon School of Law, King's College London. From 2006 to 2009, she was the Legal Officer and Special Assistant to Dame Rosalyn Higgins, President of the International Court of Justice. Prior to that, she had served as Associate Legal Adviser to the Prosecutor of the International Criminal Court (2005-2006), Law Clerk to Judges Higgins and Owada of the ICJ (2004-2005), and Associate Officer at the United Nations in New York (2001-2003). She completed her doctorate at Yale Law School under the supervision of Professor Lea Brilmayer. Dr Webb's research interests are in public international law, including international dispute settlement, international criminal law, international humanitarian law, international human rights law, and the law of international organisations.

Texte du rabat

The doctrine of state immunity bars national courts from adjudicating or enforcing claims against foreign states. This updated edition of this book provides a thorough analysis of the doctrine, explores high-profile cases, the UN Convention on the Jurisdictional Immunities of States, and provides comparative coverage of UK and US State practice.

Résumé
The doctrine of state immunity bars a national court from adjudicating or enforcing claims against foreign states. This doctrine, the foundation for high-profile national and international decisions such as those in the Pinochet case and the Arrest Warrant cases, has always been controversial. The reasons for the controversy are many and varied. Some argue that state immunity paves the way for state violations of human rights. Others argue that the customary basis for the doctrine is not a sufficient basis for regulation and that codification is the way forward. Furthermore, it can be argued that even when judgments are made in national courts against other states, the doctrine makes enforcement of these decisions impossible. This fully restructured new edition provides a detailed analysis of these issues in a more clear and accessible manner. It provides a nuanced assessment of the development of the doctrine of state immunity, including a general comprehensive overview of the plea of immunity of a foreign state, its characteristics, and its operation as a bar to proceedings in national courts of another state. It includes a coherent history and justification of the plea of state immunity, demonstrating its development from the absolute to the restrictive phase, arguing that state immunity can now be seen to be developing into a third phase which uses immunity allocate adjudicative and enforcement jurisdictions between the foreign and the territorial states. The United Nations Convention on Jurisdictional Immunities of states and their Property is thoroughly assessed. Through a detailed examination of the sources of law and of English and US case law, and a comparative analysis of other types of immunity, the authors explore both the law as it stands, and what it could and should be in years to come.

Contenu

• Introduction

• Part I: General Concepts

• 1: The Institution of Proceedings and the Nature of the Plea of State Immunity

• 2: The Three Phases of the Concept of State Immunity

• 3: Act of State and Non-Justiciability Distinguished from State Immunity in Proceedings relating to a Foreign State

• 4: State Immunity and Jurisdiction: Immunity from the Civil and Criminal Jurisdiction of National Courts

• 5: The Relationship of State Immunity to Other Immunities

• Part II: The Sources of the Law of State Immunity

• 6: A Review of the Sources: Treaties and Projects for Codification

• 7: The Restrictive Doctrine of State Immunity: Its Recognition in State Practice

• 8: English Law: The UK State Immunity Act 1978

• 9: US Law: The Foreign Sovereign Immunities Act 1976

• 10: The 2004 UN Convention on Jurisdictional Immunities of States and their Property: General Aspects

• Part III: The Current International Law of State Immunity

• 11: The Definition of the Foreign State

• 12: The Consent of the Foreign State, Express and Implied: Waiver and the Arbitration Exception

• 13: Exceptions to State Immunity: The Concept of Commerciality

• 14: Immunity from Adjudication: The Commercial and Related Exceptions to State Immunity

• 15: Immunity from Adjudication: The Exception for Personal Injuries and Jurisdiction over Acts in Violation of International Law

• 16: State Immunity from Enforcement

• Part IV: Conclusions

• 17: Conclusions and Future Models

• Appendix 1: UN General Assembly Resolution 59/38 of 16 December 2002

• Appendix 2: Annex: UN Convention on Jurisdictional Immunities of States and their Property

• Appendix 3: Sixth Committee Summary Record of the 13th Meeting, 59th Session of General Assembly, 25 October 2004