Jurisdictional Immunities Of States Research Articles

A tale of two immunities: the ongoing transition from absolute to restrictive sovereign immunity in China

ABSTRACT This article examines the doctrine of sovereign immunity and its implications in the context of China’s evolving stance on this principle. The paper delves into the historical foundations and theoretical underpinnings of sovereign immunity, distinguishing between absolute immunity and the more recent concept of restrictive immunity. The analysis focuses on China’s position on sovereign immunity, considering its historical adherence to absolute immunity and its endorsement of the United Nations Convention on Jurisdictional Immunities of States and Their Property. The paper also addresses China’s law on foreign state immunity and critically examines the impact of this law and its difference compared with the FSIA and UN Convention. Drawing on comparative legal analysis and case studies, the paper evaluates China’s shift from absolute to restrictive immunity, taking into account the interests of the private sector and the need for a fair and predictable legal framework. It explores the challenges and benefits associated with this transition, emphasizing the importance of harmonization with international legal norms and the enhancement of China’s reputation as a reliable player in global commerce. Ultimately, the paper argues that China’s transition towards restrictive immunity is not only necessary to protect its economic interests but also crucial for maintaining diplomatic credibility and fostering international cooperation. By embracing this shift, China can contribute to the harmonization of global legal norms and enhance its standing as a responsible participant in the international legal landscape.

JURISDICTIONAL IMMUNITY AND IMMUNITY OF STATE PROPERTY: SPECIFIC ISSUES OF IMPLEMENTATION AND OVERCOMING IN CONTEXT OF RUSSIAN AGGRESSION AGAINST UKRAINE

The article reveals peculiarities of application of jurisdictional immunities and immunities of state property in Ukrainian civil court proceedings against Russian Federation on recovery of losses caused by aggression against Ukraine. It has been established that problem of implementation of jurisdictional and property immunity against state property by Ukrainian courts in context of Russian aggression against Ukraine has two dimensions: international and local, taking into account that respective judgments will be enforced in Ukraine, abroad and may be used for implementation of international compensation mechanism. However Ukrainian legislation, contrary to worldwide tendencies, stipulates concept of absolute immunity, which makes difficult its overcoming from Russia during consideration of abovementioned category of cases. It was proved that it is necessary to make respective amendments Law of Ukraine “On international private law” and elaboration of special legislation for prosecuting aggressor state in civil proceedings. In addition it is worth to considered enter of Ukraine into European Convention on State Immunities 1972 and UN Convention on Jurisdictional Immunities of States and Their Property 2004. It was concluded that Ukrainian practice of application of «delict exemption» and «clean hands» doctrine in cases concerning the recovery of loses caused by aggression against Ukraine actually sums to the appearance of new exemption from application of state immunity, i.e. state can not use immunity in cases connected with international crimes committed by it. It was found that procedural obstacles in cases concerning the recovery of loses caused by Russian aggression against Ukraine appear both due to the actual situation and absence of special legislation regulating procedural aspects of aggressor-state involvement into proceedings. The recommendations for overcoming of such procedural obstacles were worked out. For instance it was proposed: - first, court decisions are to be structures from general to particular issues aiming to avoid possible critics on their discrimination nature, and argumentation is to be concentrated on «delict exemption» and «clean hands» doctrine; - second, in cases with Russian Federation it is necessary comply with terms and order of notification provided by UN Convention on Jurisdictional Immunities of States and Their Property 2004 taking into account respective provisions of Ukrainian procedural legislation; - third, in these category of cases Russian Federation is a respondent embodied by ministries of justice and foreign affairs, and respective notifications and other procedural documents are to be sent through the closest diplomatic mission of Russian Federation in other states; - fourth, in each case it is necessary to indicate evidences that representatives of Russian Federation were involved into causing of damages in context of armed conflict; - fifth, cases concerning the recovery of loses caused by Russian aggression against Ukraine may cover only state property of Russian Federation and under certain circumstances its state enterprises.

Confiscation of Russian Assets for the Restoration of Ukraine: Legal Problems of Implementation

The article is devoted to the problem of creating and applying legal mechanisms for blocking and confiscating Russian assets in order to use them for the restoration of Ukraine, which suffered from Russian aggression. The subject matter of the study is the analysis of international legal norms, national law, international and national judicial practice. The purpose of the article is to study and assess the legal possibilities of compensation for damages caused by Russian aggression against Ukraine. The research methodology involves an analysis of the rules of public international law, international humanitarian law and international criminal law, which the states that have imposed anti-Russian sanctions may rely on when seeking mechanisms for confiscation of Russian assets under sanctions in order to satisfy Ukraine's claims for reparations against Russia. Achieving the objectives of the study also involves an analysis of international and national law on the issue of foreign sovereign immunity in the context of the possibility of confiscation of assets of the Russian Central Bank. The author examines the issue of freezing (blocking) of assets of persons under the jurisdiction of the countries initiating anti-Russian sanctions. The author proves that these actions are a widely used policy tool of the United States, the European Union and other states which seek to punish the government of a particular country in this way. As part of the blockade, assets may be held until the country that violates international law changes its policy. In the case of Russian aggression, the United States and other countries that have frozen Russian assets may refuse to return them as a countermeasure until Moscow not only stops its aggression against Ukraine but also pays reparations to Ukraine. It is established that the general trend (albeit with some exceptions) of the last two decades has been to strengthen the immunity from enforcement of foreign central banks' property, which is in line with the approach adopted in the UN Convention on Jurisdictional Immunities of States and Their Property. The author considers the possibility of creating legal mechanisms for the confiscation of Russian assets frozen by Western countries and a number of other states, both at the international and national levels. Based on the study, the author formulates conclusions regarding the existence of legal (both at the level of international and national law) and political (primarily, the fear of retaliatory sanctions, and most importantly, the possibility of withdrawal of assets of foreign investors and central banks of individual states from the United States) obstacles to the confiscation of Russian assets.

THE ITALIAN FUND FOR THE VICTIMS OF THE THIRD REICH: CRITICAL REFLECTIONS AND A PROPOSAL FOR FUTURE REPARATION INITIATIVES

Building on the dispute between Germany and Italy over states' jurisdictional immunities, the contribution shows how Italy's recent establishment of the Restorative Trust Fund for victims of the Third Reich is not sufficient to resolve the dispute between the two states. Taking a cue from restorative models adopted domestically by various states, particularly with reference to transitional justice, the contribution outlines a model of a trust fund in favor of victims that can combine the right of access to justice with respect for immunity from the jurisdiction of the foreign state, useful for future restorative initiatives in Italy or abroad. To avoid violations of immunity, the forum state wishing to take over from the responsible foreign state for the purpose of reparation should create a grievance commission with exclusive jurisdiction over applications for access to the reparation fund, so that the proceedings are not brought by the victim against the foreign state, but directly with respect to the reparation fund. The contribution explains why this procedure is not contrary to foreign state immunity with reference to the concept of indirect impleading in Article 6(2)(b) of the UN Convention on Jurisdictional Immunities of States and their Property. The decisions of a grievance commission would not bring into play the immunity from the jurisdiction of the foreign state as long as they do not affect the property, rights and interests of the latter in the domestic system of the forum state. To this end, the commission's decisions-executable on the ground, subject, therefore, to the property of the foreign state-should be drafted in the form of a finding of victim status, not a finding of responsibility of the foreign state. In order to provide victims with full access to justice, on the other hand, it is necessary for the decisions of the grievance commission to be appealable to ordinary courts.

Jurisdictional immunities of states in the context of compensation paid by russia for the damage caused in Ukraine as a result of its armed aggression. T

Jurisdictional immunities of states in the context of compensation paid by russia for the damage caused in Ukraine as a result of its armed aggression. T

State Immunity, Between Past and Future

Background: State immunity, a subject rarely encountered in the East, is being brought to light more and more often lately. In the process of being detached from customary law, it has been subject to several attempts at codification. These attempts appear to have been overtaken by developments in doctrine, which demonstrates the existence of potentially delicate situations of public international law. In this context, we recall the United Nations Convention on Jurisdictional Immunities of States and their Property (New York, December 2004), which has not yet entered into force.1 In this context, we also note the initiatives for the establishment of the European Court of State Immunity contained in the European Convention on State Immunity of 1972 and its Additional Protocol, which has never been operational.2 Methods: This article aims to take stock of the status quo of the doctrine of state immunity in international law as a whole by highlighting the existing normative aspects in relation to the problems of implementation. Results and Conclusions: The arguments and conclusions are intended to underline the importance of understanding the reality, in particular, of how this doctrine works together with its exceptions. The method of scientific introspection based on primary and secondary data from scientific journals, books, documents, expert opinions, and other publications has been used to develop this article.

State Immunity from Execution under the “United Nations Convention on the Jurisdictional Immunities of States and their Property” (UN Convention) in the Process of Execution of Arbitral Awards against States

The present article focuses on the examination of state immunity in the process of execution of arbitral awards under the UN Convention. It studies the effectiveness of the UN Convention in the light of domestic and international laws on State immunity. Within the scope of this area of research, the article discusses the approaches of Anglo-American, French and Swiss legal systems. 

Pemutusan Hubungan Kerja Lokal Dipekerjakan Oleh Perwakilan Negara Asing Di Indonesia

This thesis focuses on employment termination conflicts between Indonesians and FCRs. Foreign Country Representatives argued that the Indonesia Industrial Relations Court lacks the authority to decide a quo issue since it has diplomatic and state immunity. This study uses normative legal approach and international and domestic law as sources. The 1961 Vienna Convention and the 1963 Vienna Convention, the International Labor Organization's Termination of Employment Convention 1982, and the United Nations Convention on Jurisdictional Immunities of States and Their Property 2005 are the primary sources of international law, while Indonesia's national laws are the Code of Civil Law, Act Number 2 of 2004 on Settlement of Industrial Relations (PPHI), Act Number 11 of 2020 on Job Creation, and a few others. The research also reviews three court decisions on Foreign Country Representatives' termination of employment with Indonesians and compares them to the aforementioned laws. This study found that terminated local employees can sue in Industrial Relations Court. Due to the defendants being foreign state representatives, the case must also comply with the employees' and Foreign Country representations' agreement (e.g. Embassy, Consulate). The Agreement between the two nations controls the Industrial Relations Court's authority in disputes involving Indonesian (local) workers and foreign country representations in Indonesia, as well as court judgements.

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

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.

Immunity Ratione Materiae of the Marines as Vessel Protection Detachments: A Case Note on the M/V Enrica Lexie Case

AbstractThis case note critically analyses the logic of M/V Enrica Lexie of 2020 with a particular focus on the issue of the immunity ratione materiae. This judgment is important in terms of the development of the principle of sovereign immunity. It first reviews the background of the case and the judgment. It then examines (1) the basis of the principle of sovereign immunity and (2) the territorial exception and its relevance to the law of the sea. It criticizes the logic of the judgment, particularly on its reference to the United Nations Convention on Jurisdictional Immunities of States and Their Property, regardless of the fact that the instrument only applies to civil proceedings. Finally, it comments on the Award's implication for anti-piracy international cooperation.

United States Embassy Employee Case

334State immunity — Employment — Immunity in disputes arising out of an employment contract with an embassy — United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004 — Article 11(1) and (2)(a) of Jurisdictional Immunities Convention constituting customary international law — Whether employee was employed to perform sovereign activities — Whether determinative — Whether States enjoying immunity regarding disputes with employees performing activities closely functionally related to diplomatic and consular functions of the State — The law of Austria

LG and Others v. Rina SpA, Ente Registro Italiano Navale

352State immunity — Jurisdictional immunity — Action for damages against ship classification and certification company acting upon delegation from Republic of Panama — Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters — Article 2(1) — Whether Italian court having jurisdiction under Regulation — Article 1(1) — Scope of civil and commercial matters — Operations of ship classification and certification societies — Public powers — Whether classification and certification operations conducted in exercise of public powers — Immunity from jurisdiction — Whether customary international law principle of jurisdictional immunity of States precluding court from exercising jurisdiction under Regulation — The law of the European Union

Jurisdictional Immunity of States in the Evolving Practice of the Finnish Courts

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.

State Immunity in Danish Law

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.

State Immunity in Norwegian Courts

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.

Recent Practice and Prospect of Sovereign Immunity in Republic of Korea ‒ On the Comfort Women Lawsuits of 2021 ‒

Since the beginning of 2021, the rulings on the issue of sovereign immunity by the district courts have been at the heart of transitional controversy in Korea. The rulings of January and April respectively adopted an entirely opposite stand on the exception of sovereign immunity especially for the ‘comfort women’ lawsuits within Korea. It is estimated that such a judicial deadlock and mutual contradiction will continue until a potential analysis by the Supreme Court of Korea. However, the victims of Comfort Women have been in pursuit of lawsuits for the meaningful compensation, which could be evaluated as ‘Access to Justice’ as last resort. This implies that the human rights discourse for the victims for war crime can not be restrict within the state-to-state approach of compensation. Rather, the postwar fundamental right in pursuit of the recovery human dignity should not be overlooked between the state borderline. Therefore, the bilateral dialogue for additional legal solution for the relevant victims across the Korean Strait needs to be reserved as a future possibility. In addition, it needs to be recalled that the issue of immunity from enforcement after the denial of sovereign immunity in the merits has been so far almost unprecedented in the Korean legal circle. The legal protection in the name of immunity from enforcement for the sake of foreign assets has been difficult to refute. Materially, the immunity from enforcement has been established by the Vienna Convention on Diplomatic Relations and also codified in the United Nations Convention on Jurisdictional Immunities of States and Their Property. In face of the legal situation, the issues of enforcement will require further deliberation of legal reasoning to refute the relevant immunity. In the face of the current sovereign immunity issues, the potential decisions by courts of Korea will be able to play a role as an international legal trailblazer.

Contemporary problems of the application of international treaties and international customs in the domestic law of Ukraine

Almost twenty-five years have passed since the adoption of the Constitution of Ukraine, but during this time the legislator has not made the necessary changes and additions to Article 9 of this regulatory legal act. This article of the Constitution regulates the issue of the place of an international treaty in the legal system of Ukraine, however, this regulation is imperfect and in practice gives rise to a number of conflicts. In particular, according to Article 9 of the Constitution of Ukraine, only those international treaties of Ukraine are recognized as part of the national legislation of Ukraine, the consent to the binding of which is provided by the Verkhovna Rada of Ukraine. Thus, the place of intergovernmental and interdepartmental international treaties in the system of sources of law of Ukraine is uncertain, and therefore the rules for their application are not regulated. In addition, the question of the ratio of the norms of the aforementioned international treaties with the norms of the Law of Ukraine remains unanswered. The supreme body of the judiciary of Ukraine proposed ways to overcome these problems, but they are not sufficiently reasoned. Despite this, another long-standing problem of Ukrainian law is the problem of determining the rules for the operation of international customs in Ukraine. A number of modern examples of the application of international custom to the regulation of public relations in Ukraine demonstrate to us an urgent need to formulate a detailed legislative regulation of this issue. For example, we are talking about numerous cases of citizens of Ukraine appealing to domestic courts with claims against the Russian Federation, as a result of which, despite the principle of state jurisdictional immunity enshrined in Ukrainian legislation, not only civil proceedings begin, but even claims are satisfied. The basis for this is a number of decisions of the European Court of Human Rights (for example, the decision in the case "Oleinikov v. Russia"), which states that the provisions of the United Nations Convention on Jurisdictional Immunities of States and Their Property 2004 and the European (Basel) Convention on State Immunity 1972 can be applied as international custom. So, an interesting legal incident has developed in Ukraine: in the absence of legislative regulation of the issue of the place of international custom in the legal system of Ukraine, domestic courts turn to it on the basis of decisions of the ECHR, which, according to Ukrainian legislation, is the source of Ukrainian law. At the same time, individual rules for the operation of the customs of international humanitarian law in Ukraine were regulated at the level of a subordinate normative legal act - a special Instruction approved by the Ministry of Defense of Ukraine. By adopting it, the legislator implemented the basic norms, including the usual ones, of international humanitarian law, which should have greatly facilitated the procedure for their application by Ukrainian military personnel. However, the Instruction does not reflect certain customary norms of international humanitarian law quite correctly, which can cause serious problems in practice. In addition, the legally not precisely formulated Art. 483 of the 2001 Criminal Code of Ukraine, which provides for liability only for violation of the laws and customs of war stipulated by international treaties, the consent to be bound by which was provided by the Verkhovna Rada of Ukraine, but not by international customs, of which there are quite a few in this area.

Kazakhstan Ministry of Finance and National Bank of Kazakhstan v. Ascom Group SA, Anatolie Stati, Gabriel Stati, Terra Raf Trans Traiding Ltd

387State immunity — Immunity from execution — Customary international law — United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004 — Articles 19 and 21 — Whether property of a State central bank immune from measures of constraintArbitration — Post-Award enforcement — Attachment — Whether property of a State central bank immune from attachment in satisfaction of an arbitral award rendered against the State — The law of Sweden

Edward Chukwuemeke Okeke, Jurisdictional Immunities of States and International Organizations

Edward Chukwuemeke Okeke, Jurisdictional Immunities of States and International Organizations

THE JOINING INTO THE UNITED NATIONS CONVENTION ON JURISDICTIONAL IMMUNITIES OF STATES AND THEIR PROPERTY 2004 OF VIETNAM

By summarizing the main contents of the United Nations Convention on Jurisdictional Immunities of States and their Property on 2nd December 2004, the author has analyzed actual and theory aspects on the necessity of Vietnam’s joining this Convention in order to protect interests of Vietnam State in the setting that these days the State and economic sectors are participating much in trading, commercial and investment activities with foreign subjects, and contribute to improving Vietnam legislations during international globalization.