Clear and neat elaboration of tutorial group 6 of Public International Law.
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What is State Immunity? – General Rule/ Exception
State immunity is the immunity that a State enjoys in respect of itself (jurisdictional
immunity) and its property (enforcement immunity) from the jurisdiction of the domestic
courts of another State.
The concept of state immunity fnds its origin in the Latin principle 'par in parem non habet
imperium', which means that an equal has no power over an equal. State immunity derives from
the principle of sovereign equality of States (as refected in article 2(1) UN Charter), which is one of
the fundamental principles of the international legal order and part of customary law.
JURISDICTIONAL IMMUNITIES OF THE STATE (GERMANY V ITALY, GREECE INTERVENING
Relevant paragraphs 53 - 58
State immunity is accorded on the basis of the status of a State as an international legal
personality, which is also referred to as an immunity > ratione personea. State immunity is closely
related to diplomatic immunity and the immunity of high ranking state ofcials from criminal
jurisdiction. Yet, diplomatic immunity and the immunity of high ranking state ofcials are different
forms of immunity > ratione materiae.
The most comprehensive convention is the United Nations Convention on Jurisdictional Immunities
of States and Their Property > UNCSI. The UNCSI has been prepared by the ILC and was adopted by
the UN General Assembly based on the understanding that the convention does not cover criminal
proceedings and only focuses on immunity of States from jurisdiction with regard to domestic
civil/administrative proceedings.
Despite the adoption by the GA, the convention has not entered force yet: it has to be ratifed (30).
Regional: the European Convention on State Immunity -- and not general customary international
law -- forms the basis for dealing with immunity issues in their relations among each other.
National: some states have also chosen to regulate matters of State Immunity at the domestic level
by adopting national legislation. Most of these national laws, however, are concerned with the local
implementation of international legal rules on the topic.
The immunity of a state from the exercise of jurisdiction (by the organs of another
state, notably its courts).
o Jurisdictional immunity provides a state with immunity with respect to the inquiry
of a foreign national court into a specifc claim and also immunity with regard to
such a court's adjudication, by means of a judgment or a declaration of rights and
obligations of the parties involved.
The immunity of a State from enforcement (by the organs of another State, notably
its courts).
o Enforcement immunity provides immunity with respect to the application, by a
foreign state, of coercive measures vis-à-vis another state and its property; it
thereby involves more all-encompassing and intrusive mechanisms than the
exercise of jurisdiction. Enforcement measures concern, for instance, the making
and execution of mandatory orders against a state in respect of attachment of
property, restitution, damages, penalties and production of documents and
witnesses. Property of the state should be interpreted in a broad sense, covering all
sorts of assets including immovable property, land, premises, movable property,
and variety of rights such as intellectual property rights and bank accounts. The
decisive criterion is that such property is owned by a state.
Immunity from the exercise of jurisdiction
Before a domestic court of another state, a state may invoke state immunity which, when
successful, forms a restraint on the exercise of jurisdiction by the foreign court. Immunity
can be pleaded before any tribunal exercising judicial or quasi-judicial powers, including
administrative tribunals, whether it concerns criminal, civil, family or other matters.
Immunity can be pleaded before any tribunal exercising judicial or quasi-judicial powers,
including administrative tribunals, whether it concerns criminal, civil, family or other
matters.
JURISDICTIONAL IMMUNITIES OF THE STATE (GERMANY V ITALY, GREECE
INTERVENING
Literature: Chapter 5 – International Law, Part 10 & 11 – E-learning, 1
Cases: Jurisdictional Immunities of the Stata/ Arrest Warrant
, Tutorial 6
The Court had to examine whether Italy had failed to respect the immunity of Germany
by instigating proceedings against Germany, in an Italian court, for the treatment of
Italian citizens in World War II.
Relevant paragraphs 54
'[...] the Court is not called upon to decide whether [the] acts were illegal, a point which is
not contested. The question for the Court is whether or not, in proceedings regarding
claims for compensation arising out of those acts, the Italian courts were obliged to
accord Germany immunity'.
The International Court of Justice ruled in favor of Germany, reasoning that Italy should
have respected the immunity of Germany.
There are 2 exceptions in which immunity may not be invoked:
1. The waiver of immunity by a state
A state can decide to give consent to the exercise of jurisdiction by the domestic court
of another state. They can do so by means of a treaty, by a written contract, or via a
declaration before the court in question. Jurisdictional immunity may be waived, for
instance, as a sign of friendly relations among states; or a state may specifcally
request this from another state before establishing economic relations between
them.
Three criteria must be met for the waive to be valid:
I. Consent to waive jurisdictional immunity must be given by an authorized
representative of the state.
II. The expression of such consent must be unequivocal and certain. In other words, it
could be in writing or expressed implicitly by the state in the proceedings (e.g., by
appearing in court without arguing an immunity plea).
III. A waiver of immunity from enforcement requires a separate waiver of immunity
from jurisdiction. In other words, as a waiver of jurisdictional immunity does not
imply a waiver of immunity from enforcement (article 20 UNCJIS).
Articles 7 and 8 UNSCI contain the conditions and implications.
2. The restrictive immunity doctrine (i.e. no immunity in case of commercial
transactions)
In case of sovereign acts (acts that only a state can do; 'acta de iure imperii') the
state retains its jurisdictional immunity. But for acts with a private law or commercial
nature (acts that anyone can do; 'acta de iure gestionis') the state cannot invoke
immunity in national proceedings before foreign courts.
E.g. acts de iure imperii are: issuing passports or becoming a party to a treaty.
E.g. acts de iure gestiones are: buying stationary for civil servants; or buying uniforms
for park rangers.
Art. 10 (1) UNCSI general rule which prohibits the immunity plea in case of
commercial acts (FSIA)
In the articles after 10 until 17 the UNCSI lists more restrictions to the immunity plea
by states in relation to: contracts of employment, torts, ownership, possession and
use of property, intellectual and industrial property rights, participation in a company
or other selective bodies, ships and arbitration agreements.
There’s a difculty regarding the application and the distinction of these 2 kinds of
acts. The distinction can be made by looking at the nature of the act or the purpose
art. 2(2) UNCSI in determining the commercial nature of an act, reference should be
made primarily to the nature of the contract or transaction, but its purpose should
also be taken into account.
Jurisdictional immunity and Jus Cogens norms:
There is much debate amongst scholars on the question whether state immunity can be limited in
cases of human rights violations that form part of ius cogens norms.
JURISDICTIONAL IMMUNITIES OF THE STATE (GERMANY V ITALY, GREECE INTERVENING)
Germany initiated the case against Italy (with Greece intervening) for Italy's disregard of Germany's
immunity, by initiating proceedings in Italian courts against German, regarded war damage caused
by Nazi-Germany during the Second World War. Italy reasoned: frstly, that the acts which gave rise
to the claims constituted serious violations of international humanitarian law (the law of armed
2
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