Journal articles: 'Jurisdictional immunity'

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JURATOWITCH, Ben. "Waiver of State Immunity and Enforcement of Arbitral Awards." Asian Journal of International Law 6, no. 2 (February 13, 2015): 199–232. http://dx.doi.org/10.1017/s204425131400040x.

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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.

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Ren, Hu, and Zhaoxin Jin. "On the Restrictive Jurisdictional Immunity of AIIB in China." International Law Research 10, no. 1 (February 24, 2021): 185. http://dx.doi.org/10.5539/ilr.v10n1p185.

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The jurisdictional immunity of international organizations is a necessity for them to independently perform their functions and achieve their purposes. Therefore, the international community generally grants absolute jurisdictional immunity to international organizations. China has always advocated the position of absolute jurisdictional immunity, however, in the AIIB Agreement and the Headquarters Agreement between China and AIIB, China turn to the view that AIIB only share restrictive jurisdictional immunity. The change of China’s opinion on AIIB is not only the result of the development of international organizations immunity, but also the result of AIIB’s functional necessity. The fact that AIIB only enjoys restrictive jurisdictional immunity in China makes AIIB possible to be sued in China’s domestic courts. If the eligible plaintiff bring a lawsuit against AIIB in China, the courts could handle the case in accordance with domestic laws, the AIIB Agreement and the Headquarters Agreement to alleviate the dilemma of China’s lack of international organization law.

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Negri, Stefania. "Sovereign Immunity v. Redress for War Crimes: The Judgment of the International Court of Justice in the Case Concerning Jurisdictional Immunities of the State (Germany v. Italy)." International Community Law Review 16, no. 1 (February 3, 2014): 123–37. http://dx.doi.org/10.1163/18719732-12341273.

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Abstract In the judgment delivered in the case concerning Jurisdictional Immunities of the State (Germany v. Italy), the International Court of Justice held that under the present state of international customary law State immunity encompasses all acta jure imperii, regardless of whether they are unlawful. Following the ruling that States are entitled to jurisdictional immunities before foreign courts even if their sovereign acts amount to violations of peremptory norms, the Court found that Italy had violated Germany’s immunity from jurisdiction and enforcement. In rendering such a conservative judgment, the Court missed a double opportunity: to contribute to the development of international law by interpreting the rule on sovereign immunity in harmony with international human rights law and its dynamics, and to finally serve justice for the victims of war crimes.

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Mora, Paul David. "Jurisdictional Immunities of the State for Serious Violations of International Human Rights Law or the Law of Armed Conflict." Canadian Yearbook of international Law/Annuaire canadien de droit international 50 (2013): 243–87. http://dx.doi.org/10.1017/s0069005800010857.

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SummaryIn its recent decision in Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), the International Court of Justice (ICJ) held that Italy had failed to respect immunities enjoyed by Germany under international law when the Italian courts allowed civil actions to be brought against Germany for alleged violations of international human rights law (IHRL) and the law of armed conflict (LOAC) committed during the Second World War. This article evaluates the three arguments raised by Italy to justify its denial of immunity: first, that peremptory norms of international law prevail over international rules on jurisdictional immunities; second, that customary international law recognizes an exception to immunity for serious violations of IHRL or the LOAC; and third, that customary international law recognizes an exception to immunity for torts committed by foreign armed forces on the territory of the forum state in the course of an armed conflict. The author concludes that the ICJ was correct to find that none of these arguments deprived Germany of its right under international law to immunity from the civil jurisdiction of the Italian courts.

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Bureš, Pavel. "Recent Developments of International Law Commission Work on Immunity of State Officials from Foreign Criminal Jurisdiction." Polish Review of International and European Law 10, no. 2 (December 18, 2021): 63–78. http://dx.doi.org/10.21697/priel.2021.10.2.03.

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Immunity is a well bedded concept within international law and mainly within the principle of sovereign equality of states. There are different procedural implications of the concept of immunity – diplomatic and consular privileges and immunities, State jurisdictional immunities and also immunity of State officials from foreign criminal jurisdiction. The Article focuses on the latter one and portrays on recent developments of immunity of State officials from foreign criminal jurisdiction as it is elaborated by the UN International Law Commission (‘ILC’). The author frames (in the introduction) the concept of immunity and especially the immunity of State officials and puts it in a large theoretical structure of international law and in the work of ILC. Then, he focuses his attention on the phenomenon of progressive development of international law (2) and how it is used with respect to the topic considerated by the ILC. He then presents main ILC conclusions regarding limitations and exceptions to immunity of State officials (3) and finally outlines latest development (4) of the ILC work dealing mainly with relationship between foreign criminal jurisdiction and international criminal jurisdiction and other procedural questions.

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Del Mar, Katherine. "The Effects of Framing International Legal Norms as Rules or Exceptions: State Immunity from Civil Jurisdiction." International Community Law Review 15, no. 2 (2013): 143–70. http://dx.doi.org/10.1163/18719732-12341248.

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Abstract The finding by the International Court of Justice in the case concerning Jurisdictional Immunities of the State that Italy violated its obligation to respect Germany’s immunity from civil jurisdiction comes as no surprise. The anticipated conclusion of the Court is the outcome of the powerful tradition of framing State immunity as a rule to which an exercise of jurisdiction by a domestic court is an exception expressly established under customary international law. As technically faultless as this finding may appear, it sits uncomfortably with deeper, structural developments in international law that challenge the very application of the ‘rule-exceptions’ framework of State immunity. This article questions the underlying assumption upon which the Court’s judgment is premised: that State immunity operates as a predominant rule, to which only exceptions that are established under customary law can apply, and it proposes an alternative understanding of the doctrine of State immunity.

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Schmalenbach, Kirsten. "Austrian Courts and the Immunity of International Organizations." International Organizations Law Review 10, no. 2 (June 20, 2014): 446–63. http://dx.doi.org/10.1163/15723747-01002012.

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Austria is host state to several international organizations, and as a result the immunity of international organizations and their officials is a constant concern to the Austrian Ministry of Foreign Affairs, and from time to time this issue is considered by Austrian Courts. But who in Austria authoritatively decides on the presence of jurisdictional immunities: the judiciary or the government? What kind of acts or omissions count as a waiver of immunity, and who has the power to do just that? What is the scope of the organization’s immunity ratione materiae, especially when compared to the immunity of states? What is the scope of the jurisdictional immunity of officials? And, finally, do Austrian courts balance the jurisdictional immunity of international organizations with the human right of access to courts? This paper outlines the international laws and domestic rules applicable to questions of immunity, and then analyzes eleven final judgments from Austrian courts that deal with the immunity of international organizations and their officials. It concludes with a brief evaluation of the scope of the immunity of international organizations and their officials in light of the Austrian legal order.

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Treichl, Clemens, and August Reinisch. "Domestic Jurisdiction over International Financial Institutions for Injuries to Project-Affected Individuals." International Organizations Law Review 16, no. 1 (January 7, 2019): 105–36. http://dx.doi.org/10.1163/15723747-01601005.

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Project-affected individuals are increasingly bringing tort claims against international financial institutions in domestic courts. In the US, such plaintiffs such plaintiffs have regularly failed to overcome the obstacle of the defendant institutions’ jurisdictional immunity under the International Organizations Immunities Act. In pending litigation, the US Supreme Court has resolved a long-standing debate as to its scope. This paper examines the issue of jurisdictional immunity in the context of international project finance. It focuses on the specific frameworks established in treaties, analyses the interplay between international and domestic US norms and looks at possible implications of the exercise of domestic jurisdiction. A key finding is that US courts, at least previously, used to grant more extensive immunities than international law required. While doubts persist as to whether domestic courts are a suitable venue for claims brought by project-affected people, existing means of international dispute settlement should be strengthened.

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Chechi, Alessandro. "Judgment No. 238 – 2014 (IT. Const. Ct.)." International Legal Materials 54, no. 3 (June 2015): 471–506. http://dx.doi.org/10.5305/intelegamate.54.3.0471.

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On October 22, 2014, the Italian Constitutional Court rendered a decision on the constitutional legitimacy of certain domestic norms that required Italy’s compliance with the rule on state immunity sanctioned by the International Court of Justice (ICJ) with the Judgment Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening). The Constitutional Court declared that the international customary obligations on state immunity from jurisdiction can be applied automatically within the Italian legal order only as long as they are in conformity with the fundamental rights contained in the Constitution.

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Gombos, Katalin. "Rules of jurisdiction in the new Hungarian private international law." Hungarian Journal of Legal Studies 61, no. 1 (July 5, 2021): 52–70. http://dx.doi.org/10.1556/2052.2021.00285.

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AbstractOn 1 January 2018, a new act entered into force in Hungary. This act is the new code of private international law in Hungary. The basic purpose of this article is to present the jurisdictional rules of the new law. In the description I discuss how the new act differs from the rules of the old code. In addition, I focus on international and European trends in private international law. I also examine the extent to which the new Hungarian code complies with these trends, as well as discussing the peculiarities of the Hungarian regulation. The new Code uses the concept of jurisdiction as a rule for the ‘international distribution’ of cases and in the sense of public international law. Therefore, I also address in this article the definition of jurisdiction and other conceptual issues, the doctrines of immunity and the description of the jurisdictional system of the Code. I present the relationship between international, European and Hungarian rules which are relevant in private international law. In addition, I provide an overview of the novel system of jurisdictional rules in the Code.

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11

Longobardo, Marco. "State Immunity and Judicial Countermeasures." European Journal of International Law 32, no. 2 (April 23, 2021): 457–84. http://dx.doi.org/10.1093/ejil/chab013.

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Abstract This article explores whether domestic courts can deny jurisdictional immunity of a state as a countermeasure. The article offers a survey of state practice that, according to some scholars, would support this argument, demonstrating that the corresponding practice is scarce, and that relevant domestic legislation denying jurisdictional immunity is not adopted as a countermeasure. Typically, countermeasures are adopted by political organs, which are responsible for the state’s international relations and which can assess what is a lawful response to a violation of international law. Domestic courts are not entitled to adopt countermeasures without the involvement of the executive organs that are competent for the international relations of the state. This article demonstrates that a domestic court’s denial of sovereign immunity as a countermeasure is unlawful without a prior determination of the government, and it is highly impractical when that determination is provided.

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SARZO, MATTEO. "The Dark Side of Immunity: Is There Any Individual Right for Activities Jure Imperii?" Leiden Journal of International Law 26, no. 1 (February 5, 2013): 105–25. http://dx.doi.org/10.1017/s0922156512000672.

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AbstractThe following contribution interprets the ICJ decision on the case Jurisdictional Immunities of the State in a broader picture. The article focuses on the cause of action underlying the domestic civil claims, i.e. the primary rules providing for individual rights. Indeed, the traditional view, which conceives immunity as a ‘procedural’ rule, vigorously upheld by the Court, is not the only way to address this topic. In our view, state immunity is a substitute for other more sensitive questions, namely the definition of ‘state’, its prerogatives, and the individuals as right holders under international law. This approach points out a different rationale under state immunity, leading to major practical consequences in terms of the assessment of international jurisdiction.

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Långström, Tarja. "Jurisdictional Immunity of States in the Evolving Practice of the Finnish Courts." Nordic Journal of International Law 90, no. 4 (December 1, 2021): 427–34. http://dx.doi.org/10.1163/15718107-90040004.

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Abstract International codification efforts have not yet yielded functioning treaty regimes relating to jurisdictional immunities of states and their property. In practice, however, many states have embraced a restrictive approach to state immunity, either in special legislation enacted to that effect, or in their judicial practice. There is no special legislation on state immunity in Finland, but the courts have been faced with state immunity questions on a few occasions. The courts have made an effort to apply the 2004 UN Convention on Jurisdictional Immunities of States and Their Property as a matter of customary international law binding on Finland. By so doing they have steered the Finnish practice towards restrictive understanding of state immunity.

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14

Marks, Susan. "Torture and the Jurisdictional Immunity of Foreign States." Cambridge Law Journal 56, no. 1 (March 1997): 8–11. http://dx.doi.org/10.1017/s0008197300017566.

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Ryngaert, Cedric, and Frans Pennings. "Jurisdictional Immunity and Infringement of Fundamental Labor Rights." International Labor Rights Case Law journal 3, no. 3 (September 11, 2017): 327–32. http://dx.doi.org/10.1163/24056901-00303011.

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Ivanova, Tatyana N. "IMMUNITY OF THE STATE IN THE INTERNATIONAL PRIVATE TRANSPORT LAW: COMPARATIVE LEGAL STUDY." Public international and private international law 6 (October 29, 2020): 23–26. http://dx.doi.org/10.18572/1812-3910-2020-6-23-26.

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This article is a study of issues of state immunity in international private transport law. The article as a whole is of an overview nature and will be useful for further research in this area. The author explores the legal regulation of the issue in countries such as Germany, Spain, Hong Kong, North Korea, Ukraine, Norway, Turkey. The paper also examines the development trends of the doctrine of the immunity of a foreign state abroad as a whole, highlights general and special features in the legislative regulation of the immunity of a foreign state in the above countries, and also provides and analyzes relevant judicial practice. In addition, the author explores the issue of jurisdictional immunity in the field of transport law, as well as the question whether it is necessary to involve the state in international commercial arbitration, and concludes that there are no obstacles to the participation of states in arbitration, as the very signing by the state of an arbitration clause means the state’s voluntary renunciation of jurisdictional immunity. In conclusion, based on the analysis, the author formulates some general trends in the legal regulation of foreign immunity abroad. Based on the analysis, it is also concluded that in foreign countries, for the most part, there is no legislative regulation of issues of jurisdictional immunity in international private law.

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17

Dickinson, Andrew. "Status of Forces under the UN Convention on State Immunity." International and Comparative Law Quarterly 55, no. 2 (April 2006): 427–36. http://dx.doi.org/10.1093/iclq/lei090.

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The United Nations Convention on Jurisdictional Immunities of States and Their Property was adopted by the UN General Assembly on 2 December 2004.1 The General Assembly recorded, in the first paragraph of its resolution adopting the Convention, its ‘deep appreciation to the International Law Commission and the Ad Hoc Committee on jurisdictional Immunities of States and their Property for their valuable work on the law of jurisdictional immunities of States and their property’. Whatever view one takes as to the merits of the Convention text or the prospects of its success,2 it cannot be doubted that this acknowledgment was well deserved—it is, if anything, an understatement to describe the conclusion of a detailed international instrument on state immunity, embodying the restrictive theory of immunity, as a ‘diplomatic triumph’.

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McGregor, Lorna. "State Immunity Jus Cogens." International and Comparative Law Quarterly 55, no. 2 (April 2006): 437–46. http://dx.doi.org/10.1093/iclq/lei091.

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The General Assembly first proposed that the International Law Commission look into the issue of state immunity in 1977. As State immunity, by its very nature, sits at the interface between traditional and contemporary notions of international law, the span of the negotiations over three decades inevitably exposed the resulting Convention to gaps and inconsistencies with evolving areas of international law. In 1999 the International Law Commission established a Working Group on Jurisdictional immunities of States and their property,

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Reinisch, August. "To What Extent Can and Should National Courts ‘Fill the Accountability Gap’?" International Organizations Law Review 10, no. 2 (June 20, 2014): 572–87. http://dx.doi.org/10.1163/15723747-01002016.

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International organizations are generally recognised as requiring privileges and immunities, in particular immunity from the jurisdiction of domestic courts, in order to remain independent and unimpeded in the fulfilment of their functions and duties. However, this approach often neglects the effect of a grant of immunity to international organizations, in that potential claimants may be deprived of their ability to raise claims against international organizations before the ‘natural forum’ of domestic courts. Recently, both legal doctrine and practice have devoted particular attention to the potential accountability gap created by sweeping jurisdictional immunities of international organizations. This has even led to calls for filling the gap by denying immunity. This paper will outline the development of the increased awareness of accountability gaps and assess the reactions so far. Finally, it will turn to an evaluation of the suitability of national courts as institutions for securing the accountability of international organizations.

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Okada, Yohei. "Deprivation or Circumvention of the UN’s Immunity." Journal of International Peacekeeping 23, no. 3-4 (December 18, 2020): 121–48. http://dx.doi.org/10.1163/18754112-02303002.

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Abstract The immune system is supposed to protect one’s body from harmful germs, but sometimes it may attack a healthy part of the body itself—this is called an ‘autoimmune disease’. Although the founders of the United Nations (UN) equipped it with such immunities as are necessary for the fulfilment of its purposes, it seems that its jurisdictional immunity is sometimes more detrimental to its proper functioning than protective of it, especially in the context of peacekeeping. The present study aims to discover a cure for this autoimmune disease. Immunities are, in general, under attack because they serve as insurmountable hurdles to holding those who exercise public authority accountable before domestic courts. Peacekeepers may harm the local population, but the UN’s immunity leads to the denial of justice in cases of third-party claims, which put pressure on the UN. However, neither deprivation nor circumvention of the UN’s jurisdictional immunity is a safe and holistic cure for this autoimmune disease. What we need to ensure is that the immune system functions as designed.

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Bachand, Frédéric. "Overcoming Immunity–Based Objections to the Recognition and Enforcement in Canada of Investor–State Awards." Journal of International Arbitration 26, Issue 1 (February 1, 2009): 59–87. http://dx.doi.org/10.54648/joia2009003.

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Canada’s State Immunity Act is problematic in that it does not clearly prevent foreign states from raising pleas of jurisdictional immunity to defeat applications seeking the recognition and enforcement of arbitral awards made against them. Worst, the Act can even be interpreted as allowing foreign states to raise such pleas to avoid obligations arising out of international awards. In this respect, Canadian law is clearly out of step with the law in force in jurisdictions that can truly be said to be wholehearted supporters of the international arbitration system, where such pleas are, quite rightly, unambiguously forbidden. While ideally the problem would be addressed through a legislative amendment, this article contends that it can be addressed through a dynamic and contextual interpretation of the Act’s provisions relating to the waiver exception.

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Karnaukh, Bohdan. "Territorial Tort Exception? The Ukrainian Supreme Court Held that the Russian Federation Could Not Plead Immunity with regard to Tort Claims Brought by the Victims of the Russia-Ukraine War." Access to Justice in Eastern Europe 5, no. 3 (July 5, 2022): 1–13. http://dx.doi.org/10.33327/ajee-18-5.2-n000321.

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The jurisdictional immunity of a state means that the state cannot be involved as a defendant in a case considered by a foreign court. In Ukraine, the rule on the jurisdictional immunity of a foreign state is enshrined in Art. 79 of the Law of Ukraine ‘On Private International Law’. Until 14 April 2022, the Ukrainian Supreme Court rigidly applied the provisions of the said article and recognised the Russian Federation’s immunity with regard to claims brought by Ukrainian citizens seeking compensation for harm caused by the armed conflict that commenced in 2014. Yet shortly after 24 February 2022, when Russia’s aggression against Ukraine entered a new phase, i.e., the phase of full-scale war, the Supreme Court changed its mind. This note addresses the ruling of the Ukrainian Supreme Court of 14 April 2022 in case no. 308/9708/19, where the Court held that the Russian Federation could not plead immunity with regard to tort claims brought by the victims of the Russia-Ukraine war. In reaching this conclusion, the Court relied on the territorial tort exception enshrined in the European Convention on State Immunity (Basel, 16 May 1972) and the UN Convention on Jurisdictional Immunities of States and Their Property. Though neither of the two conventions has been ratified by either Ukraine or the Russian Federation, the Court found that these conventions indicate a general tendency in international customary law towards limiting the jurisdictional immunity of the states. The reasoning of the Supreme Court is examined by scrutinising the authorities the Court adduced in support of its ruling, as well as by putting the ruling in the broader context of the jurisprudence of the International Court of Justice (ICJ) and European Court of Human Rights (ECtHR). It is concluded that what the Supreme Court utilised is not the territorial tort exception but rather the ‘human rights/jus cogens’ exception. Further, the case before the Ukrainian Supreme Court is distinguishable from the ICJ and the ECtHR cases, where it was held that notwithstanding gross violations of human rights, the respondent state should nevertheless enjoy immunity. Unlike those cases, the Ukrainian case was tried amid the ongoing war, when no reparation agreements had been concluded, the legitimate aim of ‘promoting comity and good relations between states’ had been frustrated, and it was no longer possible to justify the restriction of the plaintiff’s right of access to a fair trial.

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Bjorge, Eirik. "Human Rights and Acts by Troops Abroad: Rights and Jurisdictional Restrictions." European Public Law 18, Issue 3 (September 1, 2012): 473–92. http://dx.doi.org/10.54648/euro2012028.

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Jurisdiction and immunity have tempered the emergence of human rights and remedies. They are often the first line of defence for authorities when a new area is brought in under judicial review. Government acts abroad, and in particular acts of war and occupation, are perhaps the last frontier. The recent judgments by the Grand Chamber of the European Court of Human Rights in Al-Skeini1and Al-Jedda2 rejected Government claims of lack of jurisdiction and attribution of acts by British soldiers to the UN instead of to the United Kingdom, which would have resulted in an effective immunity for the acts concerned, which included murder, torture, and arbitrary detention. The UK courts applied a restrictive jurisdictional principle with extra-territorial application only in narrowly defined exceptional categories, of which the House of Lords used only one. The European Court, however, enumerated circumstances which go so much further that they no longer constitute exceptions but a return to the principle that the European Convention is fully capable of extra-territorial application. The incremental application of this general principle in a new area brought before the Court in the cases, and the gradual rejection of Government defences that previously had been accepted under special circumstances of the interventions in the former Yugoslavia in the 1990s,3 are not surprising, and the outcome in Al-Skeini and Al-Jedda is difficult to criticize.

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Burke, R. "Status of Forces Deployed on UN Peacekeeping Operations: Jurisdictional Immunity." Journal of Conflict and Security Law 16, no. 1 (January 23, 2011): 63–104. http://dx.doi.org/10.1093/jcsl/krq022.

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Farnelli, Gian Maria. "Back to Lotus? A Recent Decision by the Supreme Court of India on an Incident of Navigation in the Contiguous Zone." International Community Law Review 16, no. 1 (February 3, 2014): 106–22. http://dx.doi.org/10.1163/18719732-12341272.

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Abstract This article stems from a recent decision of the Indian Supreme Court concerning whether the criminal courts of the Indian State of Kerala have jurisdiction over two Italian marines accused of killing two Indian fishermen. The analysis is critical of the Court’s reasoning and findings over the two main defences raised by the accused: namely, the lack of jurisdiction of the coastal state on the basis of the law of the sea and in relation to the customary rule on the jurisdictional immunity of military personnel for acts carried out in their line of duty. Finally, this study also critically examines the operational decision of the Indian Supreme Court in providing for the establishment of a specific domestic court deemed competent to entertain its jurisdiction over the cause in view of its international nature.

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Bakircioglu, Onder. "Germany v Italy: The Triumph of Sovereign Immunity over Human Rights Law." International Human Rights Law Review 1, no. 1 (2012): 93–109. http://dx.doi.org/10.1163/22131035-00101002.

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This article analyses the doctrine of State immunity within the context of the recent judgment of the International Court of Justice (ICJ) concerning the Jurisdictional Immunities of the State (Germany v Italy: Greece intervening). The object of this article is to explore the implications of the State immunity from foreign judicial proceedings in cases of jus cogens crimes. Challenging the assumption that the law of immunity is merely procedural in nature, this article argues that there can be no immunity in cases of undisputed international crimes.

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Webb, Philippa. "Should the 2004 un State Immunity Convention serve as a model/starting point for a future un Convention on the Immunity of International Organizations?" International Organizations Law Review 10, no. 2 (June 20, 2014): 319–31. http://dx.doi.org/10.1163/15723747-01002005.

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This paper argues that the 2004 United Nations Convention on Jurisdictional Immunities of States and their Property should not serve as a model for a new convention with regard to international organizations. It has been suggested that there would be some advantages in preparing a draft convention on the jurisdictional immunity of international organizations: it would make the law governing the immunities of international organizations more ‘easily ascertainable’; a convention would progressively develop the law; and it would make a useful counterpart and parallel convention to the 2004 convention. However, this paper contends that each of these reasons — while appealing from the perspective of harmonization and a notion of an accessible and predictable international ‘rule of law’ — does not overcome the problems of principle, practice and precedent. However, the immunities afforded to State officials may have greater value as a model for the immunities of officials of international organizations.

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Stewart, David P. "The UN Convention on Jurisdictional Immunities of States and Their Property." American Journal of International Law 99, no. 1 (January 2005): 194–211. http://dx.doi.org/10.2307/3246098.

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On December 2, 2004, the UN General Assembly adopted the UN Convention on Jurisdictional Immunities of States and Their Property. Capping more than a quarter of a century of intense international negotiation, the new treaty is the first modern multilateral instrument to articulate a comprehensive approach to issues of state or sovereign immunity from suits in foreign courts. Notably, it embraces the so-called restrictive theory of sovereign immunity, under which governments are subject to essentially the same jurisdictional rules as private entities in respect of their commercial transactions. The treaty was opened for signature on January 17, 2005 (when Austria and Morocco became the first states to sign), and will enter into force when thirty states have deposited their instruments of ratification, acceptance, approval, or accession with the UN secretary-general.

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Møller-Christensen, Asbjørn, and David Michael Kendal. "State Immunity in Danish Law." Nordic Journal of International Law 90, no. 4 (December 1, 2021): 411–26. http://dx.doi.org/10.1163/15718107-90040009.

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Abstract With a primary focus on civil law, the article provides a general overview of the most important legislation, court decisions and other state practice in explaining how international law on state immunity applies in Denmark today. Although Danish court practice has been quite sparse, there have been a number of important decisions effectively implementing international state immunity law into Danish law. The article also reflects on the application and development of customary international law in Danish law outside Danish courts with a particular focus on the 2004 UN Convention on Jurisdictional Immunity of States and Their Property, which Denmark has signed, but not ratified. Other examples of Danish practice are briefly highligthed, underscoring the conclusion that Denmark has broadly embraced the restrictive approach to international law on state immunity.

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Barker, J. Craig. "Negotiating the Complex Interface between State Immunity and Human Rights: An Analysis of the International Court of Justice Decision in Germany v. Italy." International Community Law Review 15, no. 4 (2013): 415–36. http://dx.doi.org/10.1163/18719732-12341262.

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Abstract One of the most controversial areas of contemporary international law is the interface between immunities and human rights. International immunities have been successfully challenged on human rights grounds in certain jurisdictions. However, to date, no international court tribunal has endorsed such challenges. In its judgment in Germany v. Italy the International Court of Justice re-asserted the conservative approach to the relationship between State immunity and human rights, which rejects the claim that State immunity is “trumped” by hierarchically superior human rights norms. This article examines the Court’s reasoning, before turning to consider the alternative vision of the interface between State immunity and human rights presented by Judge Cinçado Trindade. While persuasive, Trindade’s analysis must ultimately be rejected. The overtly positivist and formalistic approach of the Court, which is itself open to criticism, was, nevertheless, necessitated by the failure of States to provide for a human rights exception in the United Nations Convention on the Jurisdictional Immunities of States and Their Property 2004, signifying a strong opinio juris against the further limitation of State immunity at the present time. Nevertheless, the Court carefully sought to limit the effects of its judgment by limiting its focus to the specific questions before it.

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Oyumaa Volodya. "The doctrine and typesof jurisdictional immunity of state and its property." KOOKMIN LAW REVIEW 28, no. 3 (February 2016): 667–99. http://dx.doi.org/10.17251/legal.2016.28.3.667.

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Blanke, Hermann-Josef, and Lara Falkenberg. "Is There State Immunity in Cases of War Crimes Committed in the Forum State? On the Decision of the International Court of Justice (ICJ) of 3 February 2012 inJurisdictional Immunities of the State (Germany v. Italy: Greece Intervening)." German Law Journal 14, no. 9 (September 1, 2013): 1817–50. http://dx.doi.org/10.1017/s2071832200002510.

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On 3 February 2012, in a case brought by the Federal Republic of Germany against Italy, the ICJ decided that state immunity protects the state against compensation claims even in cases of extreme violations of human rights. With this ruling, the court established a provisional conclusion to the question of possible exceptions to state immunity in respect of jurisdictional immunity of the state and constraint measures in civil claims. This question has repeatedly arisen in recent years not only in international and European cases, but also in other national cases.

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Stephens, Tim, and Donald R. Rothwell. "The LOSC Framework for Maritime Jurisdiction and Enforcement 30 Years On." International Journal of Marine and Coastal Law 27, no. 4 (2012): 701–9. http://dx.doi.org/10.1163/15718085-12341250.

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Abstract Rules of jurisdiction and immunity are central to public international law, and equally vital to the United Nations Convention on the Law of the Sea (LOSC). The LOSC established an extensive framework to regulate legislative and enforcement jurisdiction over ocean space; one that has proven to be remarkably durable, despite lingering uncertainties in the compromise reached between coastal and maritime states. State practice diverging from the LOSC’s jurisdictional scheme has been isolated and infrequent, and the scheme has been strengthened and elaborated by regional and global treaties addressing contemporary oceans governance challenges, especially in the arenas of pollution control and fisheries management. As the LOSC turns thirty, a key challenge will be keeping in check the designs of coastal states over adjacent maritime space as they look seawards to address pressing concerns of resource, food, energy and environmental security.

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34

Banh, Tuan Quoc. "BASIS FOR PROPOSAL OF ENFORCEMENT OF THE FOREIGN SOVEREIGN IMMUNITIES ACT IN VIETNAM." Science and Technology Development Journal 17, no. 4 (December 31, 2014): 112–32. http://dx.doi.org/10.32508/stdj.v17i4.1548.

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Through analyzing the formation and development of doctrine of state immunity and the international experience in creating laws to concretize the contents of immunity right, such as the United Nations Convention on Jurisdictional Immunities of States and their Property 2004 and national act of typical nations in the world, the author clarifies theoretical basis for the creation of the foreign sovereign immunities act in Vietnam as well as proposes some fundamental issues concerning the content of the act.

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35

Barker, J. Craig. "I. INTERNATIONAL COURT OF JUSTICE: JURISDICTIONAL IMMUNITIES OF THE STATE (GERMANY v ITALY) JUDGMENT OF 3 FEBRUARY 2012." International and Comparative Law Quarterly 62, no. 3 (July 2013): 741–52. http://dx.doi.org/10.1017/s0020589313000298.

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The vexed question of State immunity and the extent and application thereof has once again found its way to the International Court of Justice (the Court) in the form of the Case Concerning Jurisdictional Immunities of the State (Germany v Italy).1 On this occasion, the precise question concerned the so-called ‘territorial tort exception’ to State immunity and involved an assessment of the immunity to be granted to Germany, by Italy, in relation to compensation claims brought in Italy by Italian claimants against German armed forces and the organs of the German Reich during the Second World War.2

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36

Khodos, D. "Crisis of Sovereign Immunity of the Kyrgyz Republic: The Appropriateness of Openness to Arbitration Disputes." Bulletin of Science and Practice 6, no. 5 (May 15, 2020): 382–87. http://dx.doi.org/10.33619/2414-2948/54/49.

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The article analyzes the current issues of national and international regulation of investment activity and assesses the issue of protecting the sovereign immunity of the Kyrgyz Republic and raises the question of the advisability of unilaterally reducing the level of its own jurisdictional immunity on the part of the state through its own legislation. The provisions of the Law of the Kyrgyz Republic On Investments in the Kyrgyz Republic are discussed, which enshrine the state’s open, permanent consent to arbitration in international tribunals.

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37

Motzfeldt Kravik, Andreas. "State Immunity in Norwegian Courts." Nordic Journal of International Law 90, no. 4 (October 12, 2021): 435–45. http://dx.doi.org/10.1163/15718107-90030003.

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Abstract The article seeks to clarify the scope of state immunity in civil proceedings before Norwegian courts based on recent jurisprudence and other sources of law, both domestic and international. While the concept of restrictive state immunity is now widely seen as settled law, determining the boundaries between government and private acts, and thus the precise scope of state immunity, is inherently challenging. The article examines recent Norwegian case law on state immunity, highlighting commonalities and inconsistencies in the jurisprudence, including with respect to the courts’ reliance on the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property, which Norway has ratified. The article concludes that the 2004 Convention has, in whole or in part, achieved customary law status and represents a major step forward towards a truly global framework within which national courts can adjudicate state immunity. The article concludes that future cases on state immunity before Norwegian courts should be adjudicated on the basis of the 2004 Convention.

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38

Love, Ben. "The International Court of justice: Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening)." International Legal Materials 51, no. 3 (June 2012): 563–605. http://dx.doi.org/10.5305/intelegamate.51.3.0563.

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On February 3, 2012, the International Court of Justice (‘‘ICJ’’ or ‘‘Court’’) issued a widely-anticipated judgment in a dispute over state immunity between Italy and Germany. The Court found that Italy violated its international law obligation to respect the jurisdictional immunity of the German state by: (i) allowing individuals to bring civil claims against Germany in Italian courts for violations of international humanitarian law committed by the German Reich between 1943 and 1945; (ii) declaring Greek judgments finding similar international law violations by Germany enforceable in Italy; and (iii) taking measures of constraint against public and non-commercial property owned by Germany in Italy. The Court accordingly found that Italy must ensure that the decisions of its courts infringing upon Germany’s immunity cease to have effect.

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Masutti, Anna. "Legal Problems Arising from the Installation of the Galileo and EGNOS Ground Stations in NonEU Countries." Air and Space Law 37, Issue 1 (February 1, 2012): 65–79. http://dx.doi.org/10.54648/aila2012005.

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For their full operational capability, the European Union (EU) Global Navigation Satellite Systems, Galileo and EGNOS, have to rely upon Ground Sensor Stations (GSS) for the monitoring of navigation signals received from satellites and for the transmission of data to Galileo Control Centres through public networks. Some of the GSS will be installed in non-EU countries. Naturally, for these stations, the EU would like to maintain, inter alia, the inviolability of the premises: facilities free from all types of radio interference, hacking and eavesdropping attempts; the right to use codes; the privileges accorded to diplomatic personnel, communications and documents. The legal analysis of this problem has been based on the applicability of the 1945 United Nations (UN) General Convention on the Privileges and Immunities, the 2004 UN Convention on Jurisdictional Immunities of States and the 1961 Vienna Convention on Diplomatic Relations, as well as on international customary law. Consideration has been given to the legal personality of the EU, to the nature of the activities performed by GSS in order to assess EU immunity from jurisdiction or immunity from execution.

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Henquet, Thomas. "The Jurisdictional Immunity of International Organizations in the Netherlands and the View from Strasbourg." International Organizations Law Review 10, no. 2 (June 20, 2014): 538–71. http://dx.doi.org/10.1163/15723747-01002015.

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International organizations are regularly sued before the Dutch courts. This should come as no surprise, since the Netherlands hosts no fewer than 33 of such organizations. While major cases date back to the landmark judgment in the Spaans v. Iran-United States Claims Tribunal case, the recent case of Stichting Mothers of Srebrenica et al. v. United Nations brought to the fore important unresolved issues which relate to the perceived conflicting obligations of states. On the one hand, States must accord immunity to international organizations; on the other, they must provide claimants with access to justice. Complicating circumstances in the Srebrenica case were the operation of the priority rule under Article 103 of the United Nations Charter, and the lack of alternative remedies against the United Nations. This paper highlights these unresolved issues, and considers how the courts interpret and apply the ‘functional immunity’ test. It then examines how to resolve the perceived tension between the obligations of states to accord immunity and to grant access to justice.

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Pavoni, Riccardo. "Simoncioni v. Germany." American Journal of International Law 109, no. 2 (April 2015): 400–406. http://dx.doi.org/10.5305/amerjintelaw.109.2.0400.

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With Judgment No. 238/2014, the Italian Constitutional Court (hereinafter Court) quashed the Italian legislation setting out the obligation to comply with the sections of the 2012 decision of the International Court of Justice (ICJ) in Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening) (Jurisdictional Immunities or Germany v. Italy) that uphold the rule of sovereign immunity with respect to compensation claims in Italian courts based on grave breaches of human rights, including—in the first place—the commission of war crimes and crimes against humanity. The Court found the legislation to be incompatible with Articles 2 and 24 of the Italian Constitution, which secure the protection of inviolable human rights and the right of access to justice (operative paras. 1, 2).

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42

GATTINI, ANDREA. "The Dispute on Jurisdictional Immunities of the State before the ICJ: Is the Time Ripe for a Change of the Law?" Leiden Journal of International Law 24, no. 1 (February 11, 2011): 173–200. http://dx.doi.org/10.1017/s0922156510000683.

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AbstractThe pending dispute at the ICJ between the Federal Republic of Germany and the Republic of Italy on jurisdictional immunities of states bears on the hotly debated question of whether a state having committed a violation of jus cogens loses its immunity from civil jurisdiction abroad, as maintained by the Italian Court of Cassation. The article aims to demonstrate the untenability of the position of the Italian Court of Cassation, not only under current international customary law, but also under a prospective de lege ferenda. Nevertheless, different options are open to the ICJ to adjudicate the case, without impinging on possible future developments of state practice. The article closes by pointing at the risks that, in a strict dualist/pluralist perspective, not even an ICJ's decision in favour of Germany would eventually ensure compliance by Italian domestic judges.

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43

YiSeongDeog. "Jus Cogens and State Immunity: With Special Reference to the Jurisdictional Immunities Case." CHUNG_ANG LAW REVIEW 14, no. 4 (December 2012): 205–48. http://dx.doi.org/10.21759/caulaw.2012.14.4.205.

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44

Lando, Massimo, and Nilüfer Oral. "Jurisdictional Challenges and Institutional Novelties – Procedural Developments in Law of the Sea Dispute Settlement in 2020." Law & Practice of International Courts and Tribunals 20, no. 1 (March 29, 2021): 191–221. http://dx.doi.org/10.1163/15718034-12341444.

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Abstract In 2020, law of the sea tribunals rendered one decision on jurisdiction and decided one case on the merits. First, the arbitral tribunal in the Azov Sea and Kerch Strait dispute dismissed the jurisdictional objections raised by the Russian Federation and thus will proceed to hear the merits of Ukraine’s claims. Second, the arbitral tribunal in the Enrica Lexie Incident case found, after upholding its jurisdiction in relation to the dispute before it, that the Italian marines who had shot an Indian fisherman in India’s Exclusive Economic Zone were entitled to immunity under international law and that Italy had breached certain provisions of the United Nations Convention on the Law of the Sea (UNCLOS). These two arbitral awards have confirmed and developed certain trends in the jurisprudence of law of the sea tribunals. In addition, a novelty in 2020 was the conclusion of a Model Agreement between Singapore and the International Tribunal for the Law of the Sea (ITLOS), for the latter to be able to discharge its judicial business in Singapore. Last, the Meeting of the States Parties to UNCLOS elected five new members of ITLOS and re-elected two.

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45

Folkman, Theodore J. "U.S. v. Assa Co. Ltd. (2d Cir.)." International Legal Materials 59, no. 2 (April 2020): 231–38. http://dx.doi.org/10.1017/ilm.2020.14.

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On August 9, 2019, the U.S. Court of Appeals for the Second Circuit decided United States v. Assa Co. The decision is significant for its holding that a civil forfeiture action in rem concerning property of a foreign state or its instrumentality is not an action against the foreign state or instrumentality for purposes of the jurisdictional and immunity provisions of the Foreign Sovereign Immunities Act (FSIA).

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Blumrosen, Alexander, and Fleur Malet-Deraedt. "NML Capital Ltd. v. Republic of Argentina." American Journal of International Law 107, no. 3 (July 2013): 638–44. http://dx.doi.org/10.5305/amerjintelaw.107.3.0638.

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In three cases decided on the same day, the French Court of Cassation held that the provisional attachments of funds belonging to the Republic of Argentina by NML Capital Ltd. (NML) were void on the ground of sovereign immunity from enforcement because the funds were intended to finance state noncommercial activities and had not been subject to an express waiver of immunity by Argentina. These cases are the first judicial application by the Court of Cassation of the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property (2004 UN Convention), which France signed on January 17, 2007, and ratified on June 28, 2011.

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Bizeau, Marie-Laure, and Aleksandra Fedosova. "‘Forum of Necessity’: Using French Law’s ‘Juge d’appui’ in Foreign-Seated Arbitrations as a Cure for Denial of Justice." Journal of International Arbitration 39, Issue 5 (October 1, 2022): 749–64. http://dx.doi.org/10.54648/joia2022032.

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This article explains how French arbitration law enables a party to turn to the French courts for arbitrations seated outside of France, when faced with the risk of denial of justice. It describes the jurisdiction and role of the French ‘juge d’appui’ (or ‘supporting judge’), in preventing a denial of justice in arbitrations that bear no connection to France. An analysis of French arbitration law and jurisprudence demonstrates that the French supporting judge is an effective solution to prevent a denial of justice when the arbitration agreement does not provide for a supporting judge. juge d’appui, judge acting in support of arbitration, supporting judge, denial of justice, defaulting party, appointment of an arbitrator, constitution of the arbitral tribunal, jurisdictional immunity, Agreement on Promotion, Protection and Guarantee of Investments among Member States of the Organisation of the Islamic Conference, OIC Treaty, Secretary General of the OIC, most favoured nation clause

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48

Bornkamm, Paul Christoph. "State Immunity Against Claims Arising from War Crimes: The Judgment of the International Court of Justice inJurisdictional Immunities of the State." German Law Journal 13, no. 6 (June 2012): 773–82. http://dx.doi.org/10.1017/s2071832200020733.

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The recent judgment of the International Court of Justice (ICJ) in theCase Concerning Jurisdictional Immunities of the State(Germany v. Italy; Greece Intervening) marks the climax of a series of legal proceedings before Greek, Italian, and German courts, as well as the European Court of Human Rights (ECHR) stretching over a period of more than fifteen years. The international community had eagerly awaited the ICJ's findings on the issue at the heart of the dispute, namely the scope of state immunity before foreign courts in cases concerning claims arising from serious violations of international humanitarian law. While most expected the Court to rule in favor of Germany and to uphold state immunity in principle, it was unclear whether the Court would acknowledge the increasing erosion of immunity with respect to serious violations of human rights or international humanitarian law. To the disappointment of many, the Court took a conservative approach and rejected the idea of an emerging exception from state immunity.

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Czubik, Paweł. "Scope of the immunity of the honorary consul in the light of some bilateral consular conventions (case study)." Problems of Economics and Law 3, no. 2 (October 22, 2019): 1–14. http://dx.doi.org/10.5604/01.3001.0013.7213.

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The article is regarding issues of the scope of the immunity of the honorary consul in the treaty particular situation, when the double-sided consular convention being in force between the sending but assuming state isn't distinguishing between professional but honorable consular officers, at the simultaneous sweep the immunity of the consul. In such a situation a fundamental problem is arising - how to treat the honourable consular officer sending you under the immunity account. Theoretically the host country has two possibilities. He can acknowledge that the silence of the bilateral convention on separating the honorable consular service means that the bilateral convention under the immunity account refers only to professional consuls. He/she will be marking it, that honorary consuls will be treated according to standards of the Vienna Convention on consular relationships from 1963 He can however accept, that sometimes very strong jurisdictional immunity guaranteed by the bilateral convention (answering as for of one's scope for diplomatic immunity) will concern both consular categories in the identical scope. Presenting arguments starting to speak is a purpose of the present text too both with interpretations without ultimate determining the correctness one or of second interpretation of norms.

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Florey, Katherine. "Insufficiently Jurisdictional: The Case against Treating State Sovereign Immunity as an Article III Doctrine." California Law Review 92, no. 5 (October 2004): 1375. http://dx.doi.org/10.2307/3481420.

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Journal articles on the topic 'Jurisdictional immunity'

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