The Law Of State Immunity

The doctrine of state immunity bars national courts from adjudicating or enforcing claims against foreign states. This updated edition of this book provides a thorough analysis of the doctrine, explores high-profile cases, the UN Convention on the Jurisdictional Immunities of States, and provides comparative coverage of UK and US State practice.

The doctrine of state immunity bars a national court from adjudicating or enforcing claims against foreign states. This doctrine, the foundation for high-profile national and international decisions such as those in the Pinochet case and the Arrest Warrant cases, has always been controversial. The reasons for the controversy are many and varied. Some argue that state immunity paves the way for state violations of human rights. Others argue that the customary basis for the doctrine is not a sufficient basis for regulation and that codification is the way forward. Furthermore, it can be argued that even when judgments are made in national courts against other states, the doctrine makes enforcement of these decisions impossible. This fully restructured new edition provides a detailed analysis of these issues in a more clear and accessible manner. It provides a nuanced assessment of the development of the doctrine of state immunity, including a general comprehensive overview of the plea of immunity of a foreign state, its characteristics, and its operation as a bar to proceedings in national courts of another state. It includes a coherent history and justification of the plea of state immunity, demonstrating its development from the absolute to the restrictive phase, arguing that state immunity can now be seen to be developing into a third phase which uses immunity allocate adjudicative and enforcement jurisdictions between the foreign and the territorial states. The United Nations Convention on Jurisdictional Immunities of states and their Property is thoroughly assessed. Through a detailed examination of the sources of law and of English and US case law, and a comparative analysis of other types of immunity, the authors explore both the law as it stands, and what it could and should be in years to come.

Xiaodong Yang examines the issue of jurisdictional immunities of States and their property in foreign domestic courts.

The author shows through a careful analysis of the law that restrictive immunity does not have vox populi in developing countries, and that it lacks usus. He also argues that forum law, i.e. the lex fori is a creature of sovereignty and between equals before the law, only what is understood and acknowledged as law among states must be applied in as much as the international legal system is horizontal.

The author shows through a careful analysis of the law that restrictive immunity does not have vox populi in developing countries, and that it lacks usus. He also argues that forum law, i.e. the lex fori is a creature of sovereignty and between equals before the law, only what is understood and acknowledged as law among states must be applied in as much as the international legal system is horizontal.

Ours is a world in which the volume of the external trade of the vast majority of nations has greatly expanded and continues to be on the rise. Transnational intercourse of all kinds is now a feature of an interdependent world economy in which no nation can afford to stand aloof from a market-place which has assumed global dimensions. It is also a world where many nations, and not only of the Socialist bloc, conduct some of their transnational business themselves, or else they entrust it to state-owned cor porations and to agencies of the state. In these circumstances it becomes of prime importance to know whether a foreign state or an agency or instrumentality thereof can be sued before the local courts and, if so, whether the final judgement obtained can be enforced against the funds or property of the judgement debtor. The question of the immunity of states from suit and from execution is thus one of direct practical relevance not only to the legal profession but also to governments and the business and banking communities all over the world. The economic effects of a particular legal stand on state immunity are obvious. The position of national courts on state immunity can either attract more business or discourage further dealings with foreign states or their agencies. It can thus affect the balance of payments and, in general, the role the country plays in the world market.

This book offers a critical analysis of current challenges and developments of the State immunity regime through three dimensions: it looks at State immunity from a comparative perspective; it discusses the major trends relating to the interplay between State immunity and the protection of human rights as well as counter-terrorism; and it examines the relationship between State immunity and the financial obligations of States. Part I, Sovereign Immunity from a Comparative Perspective: Weak v. Strong Immunity Regimes, deals with the diversity of existing regimes of State immunity at the national level. This part aims to explore different approaches of particular states to sovereign immunity and their general attitude to international law, and attempts to understand why some States favour a weaker State immunity regime by multiplying exceptions or interpreting them broadly, while others continuously support a stronger one and sometimes rely on the doctrine of absolute immunity. Part II, International Customary Law of Sovereign Immunity, Human Rights and Counter-Terrorism, highlights how human rights and counter-terrorism have shaped the law and practice of sovereign immunity. This part specifically discusses the role of national legislators and judges in the development of international law, emerging conflicts between national constitutional norms and the rules of international law concerning State immunity and human rights, and possible ways of their reconciliation. Part III, Sovereign Immunity of States and their Financial Obligations, contributes to on-going debates related to the mixed and complex nature of States’ financial obligations. In this part, authors elaborate on perceptions of the underlying public-private law divide, cross influences in public and private international law and their consequences for State immunity, as well as recent trends relating to immunity from execution.