State Jurisdiction and Immunities

Contents: 1. State Jurisdiction in International Law: Complexities of a Basic Concept Alexander Orakhelashvili 2. The Concept of Jurisdiction in International Law Cedric Ryngaert 3. Universal Jurisdiction: Concept, Logic and Reality Sienho Yee 4. Jurisdiction of States and the Law of the Sea Yoshifumi Tanaka 5. State Immunity from Jurisdiction between Law, Comity, and Ideology Alexander Orakhelashvili 6. Shared Foundations and Conceptual Differentiation in Immunities from Jurisdiction J Craig Barker 7. Immunity from the Criminal Jurisdiction of National Courts Elizabeth Franey 8. The UK State Immunity Act 1978: History, Scope and Relation to International Law Alexander Orakhelashvili 9. Treaties on State Immunity: the 1972 and 2004 Conventions Alexander Orakhelashvili 10. Foreign State Immunity: A Private International Law Analysis Richard Garnett 11. The Status of Armed Forces in Public International Law: Jurisdiction and Immunity Aurel Sari 12. Immunity from Execution Xiaodong Yang 13. Torture, Jurisdiction and Immunity: Theories and Practices in Search of One Another Francois Larocque 14. Immunities and International Criminal Tribunals Robert Cryer 15. Jurisdictional Immunity of International Organisations: from Abstract Functionality to Absolute Immunity Alexander Orakhelashvili Index

Human rights — Access to courts — European Convention on Human Rights, 1950, Article 6(1) — State immunity — Relationship between State immunity and human rights — Whether assertion of immunity by defendant State a violation of Convention — Whether assertion of immunity bringing plaintiff within jurisdiction of defendant State — European Convention on Human Rights, 1950, Article 1 — Whether grant of immunity by forum State a violation of Convention — Nature of action against defendant StateState immunity — Jurisdiction — Human rights — Whether State immunity incompatible with right of access to courts — Reciprocity — European Convention on Human Rights, 1950, Article 6(1) — Tort exception to immunity

Human rights — Access to courts — European Convention on Human Rights, 1950, Article 6(1) — State immunity — Relationship between State immunity and human rights — Whether assertion of immunity by defendant State a violation of Convention — Whether assertion of immunity bringing plaintiff within jurisdiction of defendant State — European Convention on Human Rights, 1950, Article 1 — Whether grant of immunity by forum State a violation of Convention — Nature of action against defendant StateState immunity — Jurisdiction — Human rights — Whether State immunity incompatible with right of access to courts — Reciprocity — European Convention on Human Rights, 1950, Article 6(1)

International law firms offer to advise sovereign wealth funds (SWF) on legal, tax and regulatory matters, especially by helping them to structure investments in a way that maintains sovereign immunity and tax benefits available to SWFs. To conceive of state immunity as a negotiable prerogative of investing states in private spheres (vis-à-vis private investors or concurring recipient states) is disconcerting and questions the raison dêtre of this legal principle as it disconnects immunity from the exercise of sovereign functions of states. Although a restrictive approach to foreign state immunity – excluding commercial state activities from immunity – is widely acknowledged in international conventions, national statutes and jurisprudence constituting the customary international law on state immunity, the legal framework is still highly disparate. It opens the door for states to structure their SWFs and to define the public purpose of the investment at hand in a manner that increases the likelihood of profiting from immunity in the jurisdiction of the recipient state. The article shows how states can profit from the vagueness of the law on state immunity, contrasts this understanding with the doctrinal foundation of state immunity and examines potential legitimatory conflicts. Whilst neither competing private investment vehicles nor other recipient states are particularly vulnerable, the opposite is true for private contract partners of SWFs or investors engaged in the same investment object. The article offers procedural solutions to reduce the risk of SWFs abusing immunity in private law relationships.

This paper argues that China may well consider a probable shift of its position on the principle of State immunity from the absolute doctrine to the restrictive doctrine for the purpose of better accommodating the rapid growth of the private sector in China’s economic structure and significantly enhancing the judicial protection of the interest of Chinese private entities actively involved in international commerce since the 1990s. This paper makes a brief study of China’s past practice and position in relation to State immunity, offers an analysis of the rationale for a position shift, recommends means to facilitate the shift and comments on some relevant principal legal issues about which China may have legitimate concerns. 1. For more than half a century since the establishment of the People’s Republic of China (PRC) in 1949, China has been regarded as one of the staunchest supporters of the principle of absolute immunity of State and its property from the jurisdiction of other States. Nonetheless, on 14 September 2005, China affixed its signature to the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property, which is widely acknowledged as generally endorsing the restrictive approach to State immunity. This signature may usher in a probable shift of China’s position on the principle of State immunity from the absolute doctrine to the restrictive doctrine for the purpose of better accommodating the rapid growth of the private sector in China’s economic structure and significantly enhancing the judicial protection of the interest of Chinese private entities actively involved in international commerce since the 1990s. 2. This paper will start with a brief introduction to the theory of State immunity, serving as a backdrop to be followed by an examination of China’s past practice and position in this respect. The author will then analyse and justify China’s rationale for a possible shift of its position on the principle of State immunity. Lastly, recommendations will be put forward as

This article is dedicated to problematic issues of jurisdictional immunity, developing from the total liberation of foreign states from the jurisdiction of courts of other foreign states (the doctrine of absolute jurisdictional immunity) to a purely functional understanding of the activities of a modern foreign state, expressed in the concept of functional jurisdictional immunity and in an expansive approach to interpreting the actions of a state as a waiver of jurisdictional immunity and understanding its behavior in as consent to the jurisdiction of a court of a foreign State. The article examines the provisions of the norms of international treaties on the jurisdictional immunities of foreign states, acts of national law (in particular, the US Act on the Immunity of a Foreign Sovereign and the provisions of the Russian federal law on the jurisdictional immunities of foreign states and their property. The article considers the problems of identifying the defendant as a foreign state, the bearer of sovereign authority iure imperii, the problem of the criterion for distinguishing the actions of iure imperii and iure gestionis, the problem of understanding the principle of reciprocity and the problem of improper defendant for the actions of states not recognized by Russia. The article analyzes two international treaties — the 1972 European Convention on State Immunity and the UN Convention on Jurisdictional Immunities of States and Their Property, which are not international treaties of the Russian Federation, but are full-fledged instruments for the formation of norms of international law and national legislation. According to the author of this article, the list of “conclusive” actions of a foreign state indicating its consent to the jurisdiction of a foreign state is open.

The European Convention on State Immunity provides for the immunity of states and their organs from the domestic courts of the respective Contracting States. In doing so, it makes no apparent distinction between those courts’ civil and criminal jurisdictions. Yet the vexed question of the immunity of state officials from the latter, especially in respect of crimes established under international law, has been spectacularly brought to the fore by the Pinochet case. It is on this question—the immunity of individual state officials from the criminal jurisdiction of foreign states specifically in respect of international crimes—that this article focuses.

The European Convention on State Immunity provides for the immunity of states and their organs from the domestic courts of the respective Contracting States. In doing so, it makes no apparent distinction between those courts’ civil and criminal jurisdictions. Yet the vexed question of the immunity of state officials from the latter, especially in respect of crimes established under international law, has been spectacularly brought to the fore by the Pinochet case. It is on this question—the immunity of individual state officials from the criminal jurisdiction of foreign states specifically in respect of international crimes—that this article focuses.

The right of states to freely practice their independence is basic traditional right under international law. It had long been thought that this right could not be practiced fully if heads of state, foreign ministers, and diplomatic agents feared investigation, indictment, and possible arrest in countries other than their own, and for this reason international law gave them the protection of immunity. But in recent years, cases against persons once thought to be immune have been submitted to and accepted by numerous local and international courts. This article will focus on the international realm, and specifically on the arrest warrant issued by the International Criminal Court (ICC) against Sudanese President Omar Al-Bashir in March 2009. This warrant continues to be subject of much controversy, for while Americans and Europeans insist on the legality of the warrant, many Muslim and Arab countries are criticizing it, especially since Sudan was not member of the Rome statute to begin with. As for Sudan itself, it has repeatedly challenged the court's right to charge its sitting president and has refused to acknowledge its jurisdiction over the case, declaring the decision grave breach of Sudan's sovereignty. This article will argue otherwise, showing that the warrant is legal under international law because the case was referred to the ICC by UN security council resolution under chapter VII, making the nonmembership of Sudan irrelevant; the alleged acts on which the charges against Al-Bashir are based constitute international crimes; and the inability or unwillingness of Sudan to investigate the ICC charges in its domestic courts consolidate the jurisdiction of the ICC over the case.THE RIGHT OF IMMUNITYImmunities are procedural rules that arose out of comity and customary international law to act as barrier to the adjudication of disputes, whether at the jurisdictional stage to prevent the court from hearing the case, or at the enforcement stage.1 International law has granted states this privilege to prevent the courts of forum state from passing judgement against an action of foreign state, both to soothe tensions and to enhance interstate relations and benefit, collectively, the community of nations.There are various theories that seek to explain the emergence and nature of state immunity. The representative character theory explains that state immunity arose from the personal sovereignty of the early European monarchs, for in many ways, the state itself was viewed as the personal property of its ruler, and thus it was his personal attributes that gave his state the quality of being sovereign.2 Another theory talks about the rise of state immunity to protect the sovereignty of the state itself, and thus presents it as fundamental right of state under international law. Yet third theory disagrees with this explanation, arguing that immunity is not right but an exception to the jurisdiction of the forum state, since a foreign state cannot be entitled to immunity without the prior existence of jurisdictional anchor to establish the court's competence.3Despite some degree of overlap, state immunity is not synonymous with immunities available to heads of states. A person may have his case dismissed if he files suit against the government of Chue because of lack of jurisdiction, but the same court might hear his case if it is aimed at its head of state and he is accused of serious human rights violation. This article seeks to focus on immunities granted to heads of states. It is not an easy discussion, due to the controversy in the literature with regard to its extent. Two doctrines appear in this context: the and the restrictive doctrines of sovereign immunity.The doctrine of absolute immunity was popular in the i8th and 19th centuries, giving head of state total immunity from law suits in other states, regardless of the nature or purpose of his acts. …

OVERVIEW During the course of 2002–2004, numerous cases involving transnational activity arose in U.S. courts, requiring those courts to consider various issues, such as whether they had jurisdiction over a foreign defendant, whether they should exercise jurisdiction over suit by a foreign plaintiff against a foreign defendant, and, if jurisdiction did exist, whether U.S. or foreign law should apply to the dispute. There were also numerous cases in U.S. courts concerning the immunity of a foreign state or its instrumentalities from the jurisdiction of U.S. courts. These cases, brought pursuant to the Foreign Sovereign Immunities Act (FSIA), typically entailed the interpretation of one of the several exceptions to sovereign immunity contained in the FSIA, such as whether the immunity had been waived or whether the state had engaged in a commercial activity giving rise to the action. A particularly robust area of litigation involved an exception to sovereign immunity enacted in 1996 covering situations where a foreign terrorist state causes injury or death by an act of torture, extrajudicial killing, or certain other serious actions. Numerous high-profile judgments were issued under this exception and concerns with the ability of claimants to execute those judgments against foreign state assets led to further amendments of the law. Finally, various cases also arose concerning the diplomatic and consular immunities of individuals, as well as “head of state” immunity, such as a case concerning China's former president, Jiang Zemin.

This chapter discusses the allocation of jurisdiction, which serves as the means by which the ambit of each State's exercise of authority and power is defined with State immunity in respect of other States forming one of the restrictions on that exercise. The exercise of jurisdiction by States may be analysed by reference to four bases: territory, nationality, protection of a State's interests, and universality. A claim to immunity by a State or some emanation of it primarily challenges jurisdiction on the basis of personality, of which nationality is one form. The exercise of jurisdiction over the acts of a foreign State itself, which gives rise to a claim of immunity, will most usually be based on their commission within the forum State's territory or extraterritorial areas under its effective control.

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During the course of 1999–2001, numerous cases involving transnational activity arose in U.S. courts, requiring those courts to consider various issues, such as whether they had jurisdiction over a foreign defendant, whether they should exercise jurisdiction over suit by a foreign plaintiff against a foreign defendant, and, if jurisdiction did exist, whether U.S. or foreign law should apply to the dispute. For instance, in BP Chemicals Ltd. v. Formosa Chemical & Fibre Corp., a U.K. corporation sued in U.S. court a Taiwanese corporation, alleging misappropriation of trade secrets. The Third Circuit Court of Appeals reviewed the contacts of the Taiwanese corporation with the United States, considered U.S. due process requirements as interpreted by the Supreme Court, and found that the district court had neither specific jurisdiction (based on foreign defendant contacts related to the litigation) nor general jurisdiction (based on continuous and systematic contacts unrelated to the litigation) over the Taiwanese corporation. At the same time, the court of appeals found that whether the U.K. corporation had a protectable interest in information licensed to a third party, and whether the Taiwanese corporation had acted unlawfully in acquiring such information, were issues governed by Taiwanese law, not U.S. law. In cases involving torts that occurred abroad, U.S. courts looked principally to the place of the tort as determining the substantive law to be applied, even if that law raised public policy concerns.

This chapter deals with Germany’s position on State jurisdiction and immunities. The first part, Jurisdiction of the State, addresses Germany releasing an Iranian citizen in a prisoner swap, as well as Germany considering further US sanctions on Nord Stream 2, a pipeline project delivering gas from Russia to Germany, an encroachment on its sovereignty as it understands them to be extraterritorial in nature. The second part, State immunity, deals with the Federal Constitutional Court classifying Greek debt restructuring measures as acta iure imperii. While the chapter agrees with the decision, it criticizes the Federal Constitutional Court for missing the opportunity to advance the discussion of a contentious matter of public international law. Another article assesses Germany’s (non)participation in US court proceedings for alleged colonial genocide and enslavement of the Ovaherero and Nama in what was formerly known as South West Africa and is now Namibia. The chapter argues that Germany is not answerable and that Namibia’s position in its negotiations with the German government over a political declaration concerning atrocities committed during colonial rule was weakened.

State jurisdiction and immunities