The law of state immunity / Hazel Fox, CMG, QC ; Philippa Webb.
2015
KZ4012 .F69 2015 (Map It)
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Author
Title
The law of state immunity / Hazel Fox, CMG, QC ; Philippa Webb.
Published
Oxford, United Kingdom ; New York, NY : Oxford University Press, 2015.
Call Number
KZ4012 .F69 2015
Edition
Revised and updated Third edition.
ISBN
9780198744412 (pbk.)
0198744412 (pbk.)
9780198744412 (hbk.)
0198744412 (hbk.)
0198744412 (pbk.)
9780198744412 (hbk.)
0198744412 (hbk.)
Description
l, 651 pages ; 25 cm.
System Control No.
(OCoLC)922474821
Bibliography, etc. Note
Includes bibliographical references (pages 631-634) and index.
Record Appears in
Added Author
Table of Contents
Foreword / Judge Sir Kenneth Keith
v
Preface and Acknowledgments
vii
List of Abbreviations
xvii
Table of Cases
xix
Table of Legislation
xxxix
Table of UNCSI Articles
xiv
Introduction
1
plea as one of mixed international and municipal law
1
functions which State immunity serves
1
sources of the law of State immunity
2
recent development of the law of State immunity
3
three models on which immunity is based
3
Structure of the book
5
State immunity as a case study of the structure of international law
7
pt. I
GENERAL CONCEPTS
1.
Institution of Proceedings and the Nature of the Plea of State Immunity
11
institution of proceedings
11
Immunity as a rule of international law
13
role of national law
17
Outline of the plea of State immunity
18
Proceedings in court: criminal and civil
21
2.
Three Models of the Concept of State Immunity
25
changing role of the independence and equality of the State
25
First Model, the absolute doctrine: the independence of the State
26
inability of the national court to enforce its judgments against a foreign State
31
Second Model: the restrictive doctrine
32
distinction into public and private law acts used as legal device in other areas of regulation
34
merits and faults of the distinction into public and private law acts
35
Third Model: immunity as a procedural exclusionary plea
38
From bilateralism of rights to a vertical hierarchy?
39
Assessment of the Third Model
44
3.
Plea of State Immunity Distinguished from Act of State and Non-justiciability
49
Proceedings in national courts where a foreign State affects the court's exercise of jurisdiction
49
Special features of proceedings where the State is party
51
State Practice relating to pleas of Act of State and Non-justiciability: US law
53
English law
59
Act of a foreign State
60
plea of non-justiciability
63
Modification where `a foothold in domestic law'
65
Modification where a procedural right of access
68
Pleas of Act of State, non-justiciability and State immunity compared
70
4.
State Immunity and Jurisdiction: Immunity from the Civil and Criminal Jurisdiction of National Courts
73
competing principle of sovereign territoriality
75
extraterritorial extension of the State's jurisdiction
76
Universal jurisdiction
81
relationship of immunity to jurisdiction
82
distinction into civil and criminal jurisdiction
85
Additional jurisdictional links in civil proceedings against a State
87
exercise of criminal jurisdiction over a foreign State
89
pt. II
SOURCES OF THE LAW OF STATE IMMUNITY
5.
Review of the Sources: Treaties and Projects for Codification
99
International conventions relating solely to State immunity
99
resolutions of international bodies
99
Decisions of international tribunals
100
Decisions of national courts
102
Treaty practice as a source
106
1926 Brussels Convention and the 1934 Protocol
114
1972 European Convention on State Immunity
116
Projects for codification by governmental and non-governmental bodies
123
6.
Restrictive Doctrine of State Immunity: Its Recognition in State Practice
131
Early development
131
formulation of a general rule of immunity of the State
134
Common law jurisdictions: UK law
135
US law
143
Other common law jurisdictions
146
development of the restrictive doctrine in civil law countries
150
Russia and other East European Countries
159
African and Asian States
161
7.
English Law: The UK State Immunity Act 1978
165
Status
165
General structure of the UK State Immunity Act 1978
172
Definition of the foreign State
174
Waiver
184
exceptions to immunity: non-immune commercial activities
189
English law: immunity from enforcement
209
Recognition and enforcement of foreign judgments given against foreign States
215
English law: procedure
222
Civil Procedure Rules
222
Proof of the status of a foreign State or government
223
Commencement of proceedings against a foreign State
227
Service of Process
230
Burden of proof
234
8.
US Law: The Foreign Sovereign Immunities Act 1976
238
Immunity from adjudication
238
General structure of the Foreign Sovereign Immunities Act 1976 Jurisdiction
242
Definition of the Foreign State
249
Waiver
255
Exceptions to immunity from adjudication
259
Alien Tort Act 1789 and the Torture Victim Protection Act 1991
271
Anti-terrorism and Effective Death Penalty Act 1996, the Seventh Amendment to the FSIA
278
Immunity from execution of the State and its property
278
Amendment of the FSIA relating to execution against State property
281
9.
2004 UN Convention on Jurisdictional Immunities of States and their Property: General Aspects
284
Legislative history: the ILC's work and its consideration in the United Nations
285
Status of the Convention
289
Interpretation of the Convention
295
Structure of the Convention
297
general rule of immunity in the Convention
303
Exclusions
310
general assessment of the Convention
319
Implementation by States which have ratified the Convention
322
pt. III
CURRENT INTERNATIONAL LAW OF STATE IMMUNITY
10.
Definition of the Foreign State
335
External attributes as an independent and sovereign State
336
Recognition of a State or government
340
Internal attributes of the State
345
Head of State
347
Constituent units and political subdivisions
348
State agencies
352
Representatives of the State: Individuals
364
Central banks
369
11.
Consent of the Foreign State: Waiver and the Arbitration Exception
373
nature of consent of a foreign State in proceedings in national courts
373
Consent under the UN Convention
378
Consent of the State to the exercise of jurisdiction by the court of the forum State
383
Consent by choice of jurisdiction as constituting waiver
385
Counterclaims: matters covered by waiver
387
Waiver and the arbitration exception
388
UNCSI Article 17 arbitration exception: limitations
391
12.
Concept of Commerciality
395
Three requirements for an exception to immunity
396
Acta jure imperii
399
Acta jure gestionis
402
Techniques for determination of the commerciality of the act
404
Evaluation of the restrictive doctrine
411
13.
Immunity from Adjudication: the Proceedings in which Immunity Cannot be Invoked, the Commercial and Other Exceptions
413
exception for commercial transactions
413
exception for ownership, possession and use of property
422
taking of property in violation of international law
426
exception for infringement of intellectual property rights
427
Participation in companies or other collective bodies
429
exception for ships owned or operated by a State
431
14.
Immunity from Adjudication: The Employment Exception in respect of (1) A Foreign State and (2) An International Organization
435
(1).
foreign State's immunity and the exception for employment contracts
437
three Models of employment contracts with a Foreign State
439
exception for employment contracts in UNCSI Article 11 (2)
443
Circumstances where the rule of immunity still prevails UNCSI Article 11(2)
446
(2).
international organization's immunity and the exception to immunity for employment contracts
455
Allocation of responsibility in respect of employees of an international organization
460
Employment contracts of the international organization and of the foreign State compared
462
15.
Immunity from Adjudication: The Territorial Tort Exception
463
pt. One
UN Convention Article 12
465
Legislative history
465
Jurisdictional connection
466
Applicable law to determine cause of action
469
Types of tortious conduct
470
Exclusions
474
pt. Two
impact of the Jurisdictional Immunities Judgment
475
Three controversial types of loss
476
16.
State Immunity from Enforcement: General Aspects
479
reasons underlying no enforcement against State property
480
State Practice: the general rule and modifications
482
Immunity from enforcement in the UN Convention
490
State immunity from measures of constraint in connection with proceedings before a court
494
distinction into pre- and post-judgment
495
Types of coercive measures
497
Coercive measures against the State representative
500
Subject-matter of coercive measures
502
17.
Three Exceptions to Immunity from Enforcement and the Five Categories of State Property listed as Immune
509
three exceptions to the General Rule of Immunity from enforcement
509
Consent of the State
510
Allocation of State property by the State
510
Use or intended use for commercial purposes
511
five categories of State property listed as immune
512
Diplomatic property
515
Military property
520
Central bank property
522
Cultural heritage of the State
525
State property forming part of an exhibition
527
Conclusions with regard to Chapters 16 and 17
530
pt. IV
OTHER IMMUNITIES
18.
Immunity of Individuals Acting on Behalf of the State
537
head of State
538
Immunities of other high-ranking officials
558
Special missions
561
Immunity ratione materiae of State Officials
564
19.
International Organizations and Special Regimes
570
International organizations
570
Diplomats and the diplomatic mission
579
Consular immunity
592
Visiting armed forces
593
Other issues: private military and security companies and policing and law enforcement
604
pt. V
CONCLUSIONS
20.
Taking Stock
611
Appendix: The United Nations Convention on Jurisdictional Immunities of States and Their Property
615
Select Bibliography
625
Index
629