DEVELOPMENTS IN INTERNATIONAL LAW

Transcription

1 STATE IMMUNITY

2 DEVELOPMENTS IN INTERNATIONAL LAW Other titles in the series C.R. Symmons, The Maritime Zones of Islands in International Law. ISBN B.H. Dubner, The Law of International Sea Piracy ISBN R.P. Anand, ed. Law of the Sea: Caracas and Beyond ISBN V.S. Mani, International Adjudication: Procedural Aspects ISBN

3 ST ATE IMMUNITY: An Analytical and Prognostic View by GAMAL MOURSI BADR Springer-Science+Business Media, B.V.

4 Library of Congress Cataloging in Publication Data Badr, Gamal Moursi. State immunity. (Developments in international law ; v. 5) Includes bibliographical references and index. 1. Immunities of foreign states. 2. Jurisdiction (International law) I. Title. II. Series. JX4173.B ISBN ISBN (ebook) DOI / Copyright 1984 by Springer Science+Business Media Dordrecht Originally published by Martinus Nijhoff Publishers, The Hague in 1984 Softcover reprint of the hardcover 1st edition 1984 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publishers, Springer-Science+Business Media, B.V.

5 TABLE OF CONTENTS Introduction PART I: THE EVOLUTION OF THE DOCTRINE OF ST ATE IMMUNITY Chapter 1 - Historical Background Relative recency of a specific immunity applicable to states as corporate sovereigns - Earliest decisions in the U.S. and England concerned foreign public ships and personal sovereigns - The Schooner Exchange revisited - Early American and English decisions nevertheless drew a distinction between public acts and private acts, recognizing immunity only with regard to the former - Privileges accorded outposted corporeal elements of the machinery of a foreign state distinguished from jurisdictional immunity in its "pure" form, i.e. not in interaction with any physical presence of the foreign state outside its territory. Chapter 2 - Emergence of a Specific Rule of State Immunity 21 Section 1 - The Restrictive Rule 21 Pioneering role of the Belgian courts - Italian case-law - Egyptian case-law - Immunity denied with regard to private acts of foreign states - The nature of the act, not its purpose, adopted as criterion for distinguishing between private acts and public acts of the foreign state - Absence of reaction to denial of immunity as indicator of implicit general acquiescence in the restricted rule of immunity. 9

6 vi Section 2 - The Absolute Rule English case-law since American case-law since Cases decided in England and the U.S. according to the absolute rule still concerned public ships of foreign states - Non-amenability of a foreign state's public property to judicial determination distinguished from its subjective immunity from suit - French case-law since The absolute rule applied in France in cases other than those involving public ships of foreign states. Chapter 3 - The Transition to Restricted Immunity in Major Absolute Immunity Jurisdictions The Brussels Convention on the immunities of government vessels (1926) - Dicta in English decisions questioning absolute immunity since The Philippine Admiral upholds the restrictive doctrine (I 975) - Subsequent English decisions - Passage of the State Immunity Act Developments in the U.S.: the Tate letter (1952) - Uneven application by the courts of the newly proclaimed restrictive immunity - Passage of the FSIA in French case-law since Lower courts distinguish between public acts and private acts and deny immunity with regard to the latter - The Cour de Cassation lays down the principle of restrictive immunity in The criterion for distinguishing between public acts and private acts not clear in French case-law - The trend in the developing states of Asia and Africa Chapter 4 - Proposed Criteria for the Distinction between Public Acts and Private Acts of the Foreign State 63 Centrality of the distinction in the law of state immunity - The public law/private law test - The test based on "the act which only a state can do" and "the act which private individuals can also do" - Inadequacy of the above two tests and difficulties surrounding their application - Need for an objective universal test desensitized to differences between legal and socio-economic systems - The inherent, objective and omni-present difference between the public acts and the private acts of all states - Four areas where a public act can be readily distinguished from a private act: a) formation, b) parties affected, c) content, and d) sanctions of non compliance.

7 vii PART II: THE DOCTRINE OF STATE IMMUNITY: A CRITICAL VIEW Chapter I - Some Theoretical Considerations The concept of "state" - The defendant is never the state as such - The position of the local sovereigl). - The concept of sovereignty challenged - Immunity of the local sovereign historically not a universal principle - The state's position as defendant in contemporary internal law - Lack of immunity is a universal rule_ Chapter 2 - Inferences Regarding State Immunity Conceptual identity of the state's position before its own courts and before foreign courts - Traditional grounds for state immunity refuted - True sovereign (public) acts of a foreign state are not within the competence of local courts - No need for immunity with regard to same- The distinction between public acts and private acts is factual and non-controversial - All transnational relations likely to lead to application of a foreign law and/or to competence of foreign courts - Par in parem... refuted - Assimilative theory of Lauterpacht - jure imperii/jure gestionis distinction questioned - Objective definition of acts jure imperii reduces the problem to one of initial lack of jurisdiction, not of immunity from jurisdiction Chapter 3 - Common Ground between "Absolutists" and "Restrictionists" 99 "Active" and "passive" aspects of a state's position regarding immunity - The two aspects dynamically bound to adjust - Passive position of states theoretically upholding absolute immunity is in fact very similar to that of other states - Principle of reciprocity a strong factor in bringing their active position also into line - Private acts of foreign states no longer immune and their public acts not within local courts' competence - Assimilation of foreign state's position before local courts to its position before its own courts follows from preceding dual observation - Comparison of this approach to Lauterpacht's. Chapter 4 - Immunity from Execution Lack of immunity from suit does not necessarily mean lack of immunity from execution - The state's immunity from execution in the internal legal order - Rationale of same - Additional factors involved in execution against a foreign state - Trend towards restricting immunity from execution. 107

8 viii PART III: THE SEVEN RECENT INSTRUMENTS: COMMON FEATURES AND DISTINCTIVE PROVISIONS Chapter 1 - Immunity From Suit Survey based on sources of obligations for foreign states - Contract - Tort - Ownership and Possession - The Law - General similarity of provisions of the seven instruments regarding the above. Chapter 2 - Immunity From Execution European Convention follows course different from the six national statutes - Restrictions on immunity from execution in the national statutes. Chapter 3 - The Current State of the Law All seven instruments proclaim a principle of immunity now devoid of content - Criticism of assimilative theory based on international law/internal law dichotomy refuted - Restrictive immunity and objective definition of private acts join to convert the question of immunity into one of jurisdiction - Rules of international jurisdiction and not of internal subject-matter jurisdiction render immunity redundant - State immunity a mere fiction which the law can do without. Chapter 4 - The Work of Learned Bodies The 1891 resolution of the Institut and its 1954 text - The Harvard Research Draft Convention The 1960 IBA resolution - Efforts of the ILA since The ILA Montreal Draft Convention Conclusions Notes Appendices Subject and Name Index Cases Cited