The State Immunity Controversy in International Law: Private Suits Against Sovereign States in Domestic CourtsThe 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. Furthermore, the state never acts as a juridical or natural person and, therefore, in logical terms, its functions cannot be divided into potere politico and persona civile, as a prelude to determine jurisdiction. The said Italian doctrine therefore is ex facie erroneous, and that a simple dichotomy between absolute immunity and restrictive immunity wholly predicated on the nature test alone would not be helpful in promoting justice. Hence, arbitration and comparative dominant theory are suggested instead in the resolution of this elusive problem. |
Contents
The Origins of Absolute Immunity of States | 1 |
12 Jean Bodins Philosophy on Sovereignty | 2 |
13 Thomas Hobbes | 4 |
14 The Influence of the Philosophy of Thomas Hobbes | 5 |
15 Claims and Counter Claims | 9 |
16 Final Remarks | 11 |
The Development of Sovereign Immunity | 13 |
22 Justice Marshall and His Groundbreaking Rule | 14 |
69 Some Thoughts on the Persistent Objector Rule | 165 |
610 The Position of African States on State Immunity | 168 |
611 Preceding Observations and Conclusions | 171 |
The ILC Report On Jurisdictional Immunities of States | 175 |
72 Some Preliminary Observations | 176 |
73 Specific Exceptions to Immunity of States | 178 |
74 Principles of State Immunity under the Draft Articles | 181 |
75 Execution against a Foreign State | 182 |
23 Analysis of Chief Justice Marshalls Thesis | 15 |
24 The Influence of Chief Justice Marshalls Decision | 21 |
25 Influence of Marshalls Judgment on English Courts | 22 |
26 Civil Law Countries and Sovereign Immunity | 25 |
27 Russia and the Sovereign Immunity Question | 27 |
28 Is Sovereign Immunity an International Custom? | 28 |
The Privileges and Immunities of States | 33 |
32 The Rational Foundation of State Immunity | 37 |
33 Diplomatic Immunities and State Sovereignty | 40 |
34 Comity of Nations Reciprocity and Coexistence | 41 |
35 Equality of States in the Sphere of International Law | 43 |
36 Beneficiaries of State Immunities | 46 |
361 State ImmunityClaims in English Courts Overview | 49 |
362 State Immunity in American Courts | 58 |
363 State Immunity Issues and the Mixed Courts of Egypt | 61 |
364 State Immunity before South African Courts | 63 |
365 State Immunity in British Commonwealth States | 66 |
Restrictive Immunity in US and UK Courts | 69 |
43 Early Practice in Belgium and Italian Courts | 70 |
44 A Move Towards Restrictive Immunity | 72 |
45 Restrictive Immunity and its Implications | 74 |
46 The Change of Heart in American Practice | 77 |
Current US Law | 78 |
48 Jurisdiction of the Federal Courts | 79 |
410 Commercial Activity under FSIA | 80 |
411 Contacts and Direct Effect Approach | 81 |
412 Arbitration Clauses | 82 |
4121 Expropriation Claims | 83 |
4122 NonCommercial Torts | 84 |
4124 Attachment and Execution | 85 |
413 The Change of Heart in British Practice | 86 |
4131 The State Immunity Act of the United Kingdom 1978 | 87 |
4132 Exceptions to Immunity Under the 1978 Act | 88 |
4133 Indirect Impleading | 90 |
4134 Waivers of Immunity and Counterclaims | 91 |
4136 Miscellaneous Considerations | 92 |
414 Difficulties in Applying Restrictive Immunity | 94 |
4141 Difficulties Associated with Political Acts of States | 96 |
4142 Thoughts on Nationalization and Restrictive Immunity | 97 |
Private Suits Against African States in Foreign Courts | 101 |
52 Evidence of Resistance to the Restrictive Rule | 104 |
53 Nigeria before English Courts | 105 |
532 Nigeria before Gentian Courts | 109 |
Part One | 111 |
Part Two | 113 |
54 Uganda before English Courts | 115 |
55 Egypt before Indian Courts | 116 |
56 United Arab Republic before American Courts | 117 |
57 Tunisia before United States Courts | 118 |
58 Zaire before English Courts | 119 |
59 Somali Democratic Republic before American Courts | 120 |
511 Peoples Republic of Congo before Canadian Courts | 122 |
512 Arbitration Default Judgment and Enforcement | 123 |
5122 Tanzania before American Courts | 124 |
5123 The Republic of Guinea before American Courts | 127 |
5124 Is Resistance by African Stales Legally Justified? | 128 |
African States and the Practice of State Immunity | 133 |
621 Some Concrete Examptes of Personal Sovereigns | 134 |
63 The Colonial Era | 137 |
64 English Sovereign Immunity Law in African States | 141 |
65 French Sovereign Immunity Law in African States | 148 |
66 Africa SelfDetermination and International Law | 150 |
67 Reflections on State Practice and Its Implications | 153 |
671 What Do We Mean by State Practice? | 154 |
672 Municipal Courts and Legal Arguments of Defendant States | 156 |
673 Summary of Rules | 159 |
68 Custom and the Concept of Persistent Objector | 160 |
681 Are African States Bound by Restrictive Immunity? | 161 |
76 Personal Injury or Damage to Property | 184 |
77 Effects of Draft Article 22 on Restrictive Immunity | 187 |
78 Third World Influence on the ILC Deliberations | 189 |
781 Disagreement Over the Draft Articles | 192 |
79 The Uncertainty of State Practice | 202 |
State Immunity and Certain Unresolved Problems | 209 |
82 The Problems of Territorial Nexus or Connection | 210 |
83 Problems of the Nature and Purpose Tests | 215 |
84 Mixed Activities of States Involving Private Traders | 224 |
85 The Continuing Problems of Arbitration | 230 |
86 Central Banks and Certain Unsettled Problems | 234 |
87 Some Problems Relating to the Act of State Doctrine | 241 |
88 The Overlap of Act of State and Sovereign Immunity | 243 |
89 Final Remarks | 249 |
State Immunity and Violation of International Law | 251 |
93 The State Recognition and Juridical Equality | 253 |
931 Immunities of Heads of States and Senior State Officials | 254 |
94 Recent Case Law on International Law Crimes | 256 |
941 General Pinochet Before English Courts | 257 |
942 ExPresident Habre before the Courts of Senegal and France | 261 |
943 Colonel Qadaffi before the Courts of France | 262 |
944 A Brief Study of Jus Cogens and the Obligations Erga Omnes | 265 |
95 UK and Ireland before the European Court of Human Rights | 268 |
96 State Immunity and World War Two Damage Claims | 270 |
961 Germany before Greek Courts | 271 |
97 Some Salient Legal Issues before the ICJ | 273 |
972 Congo v the Kingdom of Belgium | 279 |
98 Immunity International Crimes and American Courts | 287 |
981 USSR Before American Courts | 288 |
982 Hugo Princz v Germany before American Courts | 289 |
99 Ammendment to US FSIA of 1976 | 293 |
910 Final Remarks | 295 |
UN Draft Convention on State Immunity | 301 |
102 The Concept of the State for Purpose of Immunity | 302 |
103 State Enterprise and Commercial Transactions | 303 |
104 Commercial Character of a Contract or Transaction | 305 |
105 Contracts of Employment | 307 |
106 Measures of Constraint Against The State | 308 |
107 A Perspective Sketch of Possible Future Problems | 312 |
108 Conclusion | 314 |
The Current Law of State Immunity | 317 |
113 The Changing Scope of Sovereign Immunity | 319 |
114 A Lock at Current State Practice | 324 |
1141 Some Evidence of European State Practice | 327 |
115 AsianAfrican Legal Consultative Committee Report | 339 |
116 Further Reflections on the State of the Law | 341 |
117 Embassy Bank Accounts and Foreign Reserves | 344 |
118 Employment Contracts and Restrictive Immunity | 347 |
119 The Future of the Law of Sovereign Immunity | 356 |
Appendix | 369 |
The Schooner Exchange Decision | 399 |
Judge Weiss Concept of Restrictive Immunity 1922 | 407 |
The Tate Letter | 409 |
European Convention on State Immunity | 411 |
Foreign Sovereign Immunities Act of 1976 | 423 |
State Immunity Act of 1978 | 431 |
The Singapore State Immunity Act 1979 | 443 |
The Pakistani State Immunity Ordinance 1981 | 449 |
South African Foreign States Immunities Act 1981 | 455 |
The ILA Montreal Draft Convention | 461 |
Foreign States Immunities Act No 196 of 1985 | 467 |
State Immunity Act Chapter S18 | 485 |
ILC Draft Articles on Jurisdictional Immunities | 491 |
UN Draft Convention on State Immunity | 501 |
517 | |
535 | |
Other editions - View all
The State Immunity Controversy in International Law: Private Suits Against ... Ernest K. Bankas No preview available - 2009 |
The State Immunity Controversy in International Law: Private Suits Against ... Ernest K. Bankas No preview available - 2010 |