(p. 336) 12. International Law and Restraints on the Exercise of Jurisdiction by National Courts of States
(p. 336) 12. International Law and Restraints on the Exercise of Jurisdiction by National Courts of States
The three restraints—State immunity, act of State, and non-justiciability—operate as avoidance techniques and are based on the independence and equality which States enjoy under international law, by which States prevent their national courts from deciding disputes which relate to the internal affairs of another State. This chapter examines all three doctrines, in particular the operation of the restrictive doctrine of State immunity and concludes with an appraisal of the judgment relating to State immunity given by the International Court of Justice in 2012, the Jurisdictional Immunities of the State case.
State practice, as illustrated by the practice in the UK with regard to claims against the Crown until the Crown Proceedings Act 1947, separated the settlement of claims arising from the conduct of States from the determination by the national courts of disputes between private persons. To keep lines of communication open and to preserve friendly relations with other States, agents of the State, including Heads of State themselves, were accorded a privileged position when present within the territory of another State. One method of conferring such privileges was to grant them immunity from criminal or civil proceedings in national courts (see Wickremasinghe, Ch 13 of this book). Similarly activities of governments and their departments were accorded immunity by the courts of other States, even though the conduct complained of might be categorized as breach of contract, defamation or expropriation.
The operation of a plea of immunity is in some way similar to that granted by national law to the legislature and its members; though of course the reasons for the conferment of immunity on a State or its officials differ. While, in the case of the legislature, the (p. 337) justification derives from the constitution of the country, the balance of powers between legislature, courts and the executive and the requirement that no attempt by the executive to use the power of the courts should prevent the proper exercise of the legislative function1 in the case of diplomatic and State immunity the underlying purpose is the maintenance of peaceful relations between States and the settlement of disputes by consent rather than the diktat of one State. Thus, international law recognizes the independence and equality of States and accordingly requires restraint from subjecting one State to adjudication of its disputes in the national courts of another State. (For jurisdiction and its exercise by the State see Staker, Ch 11 in this book.)
Similarly, by the plea of act of State national common law courts of other States respect the legislation and public acts of other States; and, when a question relating to an international boundary, or State succession or State responsibility arises, national courts treat such international transactions between States as non-justiciable by municipal law and by accepting a plea of non-justiciability, refer any dispute to settlement by international law.
With the State’s increasing engagement in commercial activities, State practice came to recognize that the immunities afforded to the State and its agents by international law need not be extended to commercial transactions into which the State entered in a manner similar to a private person. Thus, if a State failed to pay for goods or service ordered, immunity increasingly was held to provide no bar, though to enable the State to operate unhindered, special treatment continued to be afforded to the head and members of its diplomatic mission and to certain contracts of employment which it might make.
In the last ten years, with the development of the international law of human rights and the recognition of international crimes it has increasingly been asked why international law should not also permit national courts to exercise jurisdiction in respect of a breach of ‘established rules of international law of fundamental importance’. In plain terms, why should a claim that a State or its official had tortured an individual or in the course of armed conflict had caused loss of life or property be barred by a claim of immunity from adjudication in the national court of another State, if it could be shown that the alleged acts were in breach of international law?
This chapter will discuss some of the complex issues which are involved in answering that question. But it is useful to point out at once difficulties which may arise. First, can a national court be relied on to determine a breach of international law, when that court is established by one State without any participation or consent of the defendant State? Second, acts of torture tend to be committed by the police or armed forces of a State—agencies which are closely concerned with defence and internal security of the State. To allow the national court of another State to review judicially the propriety of the conduct of such agencies would constitute a major intrusion into the internal administration of another State with consequent loss of independence.
The International Court of Justice’s 2012 judgment in the Jurisdictional Immunities of the State case has now taken into account these obstacles to unilateral adjudication of inter-state disputes, in so far as the determination by a national court of acts committed in the course of international armed conflict by a State, when it declared that ‘customary international law continues to require that a State be accorded immunity in proceedings for torts allegedly (p. 338) committed on the territory of another State by its armed forces and other organs of State in the course of conducting an armed conflict’.2
Let us now examine more closely the techniques which international law has evolved to deal with these problems.
B. STATE IMMUNITY, ACT OF STATE, AND NON-JUSTICIABILITY AS AVOIDANCE TECHNIQUES
International law limits the independence of any one over-powerful State by making legal equality a consequence of statehood with an accompanying obligation on all States to respect each other’s independence and equality. That respect is given expression in an obligation of non-intervention in the internal affairs of another State and a prohibition on the settlement of disputes without the consent of all the States to whom such disputes relate. The obligation of non-intervention is given effect by the recognition accorded by other States to the validity of the legislative, adjudicative, and administrative acts of a State within its permitted area of jurisdiction. The consent requirement in dispute settlement is given effect by a rule of exhaustion of local remedies which provides an opportunity for a State to settle the claim in its own manner or by the removal of the dispute to the international plane, for diplomatic settlement. To honour this obligation of non-intervention in international law one State (known as the forum State by reason of the fact that the court before whom the proceedings are instituted is located in its territory) employs various methods to prevent its courts from deciding disputes which relate to the internal affairs of another State.
Some methods or avoidance techniques exist by virtue of the constitutional or municipal law of a State so as to restrict a particular court’s competence or direct the case to a more appropriate forum; thus certain matters, such as the recognition of the existence of another State or government may be reserved to the executive branch of government; or a court of competence in civil and commercial matters may have no power to hear a matter relating to public administration; or a common law court may refuse to hear a case, exercising a discretion on a plea of forum non conveniens to rule that another forum, having competent jurisdiction is the appropriate forum for the trial of the case more suitably for the interest of the parties and the ends of justice.3
But the three avoidance techniques discussed and compared in detail in this chapter are more directly related to a State’s obligation to respect the independence and equality of other States by not requiring them to submit to adjudication in a national court or to settlement of their disputes without their consent. These three avoidance techniques are immunity, act of State, and non-justiciability.
Immunity by reason of the sovereign independent status of a State is only available where proceedings are brought against a foreign State and is a preliminary procedural plea taken at the commencement of the proceedings. It serves two purposes: first, it debars the court of the State where proceedings are brought (the forum court or national court) from exercising jurisdiction to inquire further into the claim; and second, it removes the claim to another process of settlement, most frequently to settlement through diplomatic (p. 339) channels, though proceedings in the foreign State’s own court are also a possibility. Because it brings a halt to proceedings it is, from a potential defendant’s position, the most effective plea.
The other two pleas may be raised in proceedings where private persons or a foreign State is a party. Act of State is a defence to the substantive law requiring the forum court to exercise restraint in the adjudication of disputes relating to legislative or other governmental acts which a foreign State has performed within its territorial limits. Non-justiciability bars a national court from adjudicating certain issues, particularly international relations between States, by reason of their lacking any judicial or manageable standards by which to determine them.
In studying the subject it is important to keep a proper historical perspective. All three doctrines are based on a concept of the State, its changing role and increasing subjection to the rule of law in both its internal and external dealings. The doctrine of immunity in particular, has moved from an absolute to an increasingly restrictive phase, that is from total immunity to the recognition of exceptions to immunity permitting the institution of certain proceedings in a national court against a foreign State. The dualist approach of common law which treated international and municipal law as two separate systems has been considerably modified by the reception of international standards into common law, without express legislative enactment.
II. STATE IMMUNITY
A. ORIGINS OF THE PLEA OF STATE IMMUNITY
Following the Treaty of Westphalia 1648 the modern State emerged with its centralization of legislative, judicial, and enforcement powers. The need for protection of representatives of foreign States led to the development of diplomatic immunity for the Ambassador and members of a foreign embassy. The visits of personal sovereigns required development of a principle of inviolability of their person and immediate possessions and entourage as well as immunity from suit in the local court. The visits of warships of friendly States to national ports required the recognition of the ships’ immunity from local jurisdiction.
B. DEVELOPMENT OF THE COMMON LAW RELATING TO STATE IMMUNITY
Indeed, for the common law it was in the course of formulating an immunity from the jurisdiction of the national court for warships that the general principle of State immunity was first established in the leading case of The Schooner Exchange v McFaddon.4 The US Supreme Court rejected a creditor’s claim for attachment and ordered the release of a vessel which by reason of bad weather was present undergoing repairs in the port of Philadelphia, having been seized under a decree of the French Emperor Napoleon and converted into a public armed ship. The court thereby established the immunity in common law courts of a ship of war of a State from arrest and process in the courts of another State. Marshall CJ stated the immunity to be based upon the consent of the territorial State to waive its exclusive jurisdiction but did so by reference to an implicit obligation so to do in the law of nations. His subtle reconciliation of the territorial State’s jurisdiction and the (p. 340) foreign State’s independence has been the source of much subsequent comment and was expressed as follows:
This perfect equality and absolute independence of sovereigns and this common interest impelling them to mutual intercourse and an interchange of good offices with each other, have given rise to a class of case in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation.5
The English Court of Appeal in The Parlement Belge applied the ruling in the Schooner Exchange more widely to cover all ships of a foreign State regardless of whether they were engaged in public service or trade,6 and despite growing dissatisfaction, the absolute rule, declared in The Parlement Belge, treating all acts of a foreign State as immune, continued to be observed in English law and applied by English courts until the 1970s.7
By the 1970s developments elsewhere, however, encouraged a bolder approach. In 1977, the Privy Council in The Philippine Admiral8 reinterpreted The Parlement Belge, declaring that it had not laid down the wide proposition that ‘a sovereign can claim immunity for vessels owned by him even if they are admittedly being used wholly or substantially for trading purposes’. It accordingly rejected a plea of immunity in respect of in rem proceedings (that is proceedings for attachment and sale directed against the vessel itself) brought for goods supplied to a vessel operated as an ordinary trading ship in which the Philippine government retained an interest. The next year the Court of Appeal in Trendtex v Central Bank of Nigeria9 refused to allow a plea of immunity as a bar to proceedings against the Central Bank of Nigeria for failure to honour a commercial letter of credit;10 the court, unanimously, held that the bank by the terms of its establishment was an independent entity and not to be treated as part of the State of Nigeria; and, by a majority, that English law recognized no immunity in respect of proceedings brought for a commercial activity such as the issue of a letter of credit. In accepting a restrictive doctrine of immunity in the common law—a move which was confirmed by the House of Lords in I Congreso del Partido,11 the English courts were much influenced by legal developments elsewhere and these developments finally led to the enactment in 1978 of the State Immunity Act (SIA) providing for a restrictive scheme of immunity.
(p. 341) C. DEVELOPMENT IN CIVIL COURTS AND THE USA
With increased participation of States in trading activities following the First World War there was much dissatisfaction with the denial of legal redress against States for their commercial activities. Certain civil countries, notably in Italy, Belgium, and the Egyptian mixed courts, led the way in adopting a restrictive doctrine construing international law as requiring immunity for proceedings relating to acts committed in exercise of sovereign authority (acta jure imperii) and not for trading activities or acts which a private person may perform (acta jure gestionis); in 1963, in a magisterial decision surveying State practice, bilateral and multilateral treaties, and legal writing, the German Federal Constitutional Court declared that international law permits a restrictive doctrine of State immunity and that the proper criterion for the distinction between sovereign and private acts is the nature of the act, not its purpose. It allowed proceedings by a builder to recover the cost of repair carried out to the Iranian Embassy, holding the repair contract to relate to a non-sovereign act of the foreign State and hence not to be immune.12
Further support for the restrictive doctrine was given in the adoption in 1926 of the Brussels Convention for the Unification of Certain Rules concerning the Immunities of Government Vessels and later its 1934 protocol, providing that State-owned or operated ships used exclusively for non-governmental commercial purposes should enjoy no immunity and be subject to the same substantive legal rights and obligations as ships owned or operated by private persons for the purposes of trade; and in 1972 by the signature of the European Convention on State Immunity (ECSI) which introduced a number of exceptions to immunity from adjudication which were broadly based on the commercial or private law distinction and modified the absolute rule against coercive measures by an optional scheme. In 1952 the State Department of the USA announced in the Tate letter that in future US policy would be to follow the restrictive theory of sovereign immunity and in 1976, in part responding to the need of commercial banks financing sovereign States’ debt to have legal recourse, Congress enacted the Foreign Sovereign Immunities Act (FSIA), being the first legislation to introduce the restrictive doctrine into the common law.
D. PRESENT DAY SOURCES OF THE INTERNATIONAL LAW OF STATE IMMUNITY
From 1976 and the enactment of the US FSIA onwards, with the legislation on State immunity of a number of other common law countries13 and with their and other common law jurisdictions14 along with the civil law systems of France, Austria and Germany, (p. 342) a considerable body of State practice was accumulated in support of the application of a restrictive doctrine in national courts.15 With the dissolution of the Soviet Union and introduction of western capitalism other European countries, as members of the Council of Europe, and certain other developing economies also looked favourably on the adoption of the restrictive doctrine of immunity.
Until 2004, however, no universal international convention on State immunity had been adopted. The 1926 Brussels Convention, referred to in Section II C, and ratified by 29 States, merely removed immunity in respect of State-owned or operated ships and their cargoes engaged in trade. Only eight States (Austria, Belgium, Cyprus, Germany, Luxembourg, Netherlands, Switzerland, and the UK) are parties to the 1972 European Convention. Nor until 2002 was there any direct ruling on State immunity at the international level.
As the ICJ itself later confirmed, the State practice as described was:
of particular significance to be found in the judgments of national courts faced with the question whether a foreign State is immune, the legislation of those States which have enacted statutes dealing with immunity, the claims to immunity advanced by States before foreign courts and the statements made by States, first in the course of the extensive study of the subject by the International Law Commission and then in the context of the adoption of the UN Convention. Opinio juris in this context is reflected in particular in the assertion by States claiming immunity that international law accords them a right to such immunity from the jurisdiction of other States; in the acknowledgment, by States granting immunity, that international law imposes upon them an obligation to do so; and, conversely, in the assertion by States in other cases of a right to exercise jurisdiction over foreign States.16
With the advent of the twenty-first century, however, the position has significantly changed in two respects; first by the International Court of Justice delivering a number of important decisions on the customary international law relating to State immunity:17 in the Arrest Warrant of 11 April 2000 the International Court made a ruling as to the immunity from criminal jurisdiction of an incumbent Minister for Foreign Affairs;18 in the Obligation to Prosecute or Extradite it examined the extent to which universal jurisdiction was exercisable against a former Head of State accused of the international crime of torture who had sought refuge in a third State, Senegal;19 and in the Jurisdictional Immunities case it reviewed the law of State immunity in a claim brought by Germany against Italy (with Greece intervening) for the disregard of its immunity by Italian courts in proceedings relating to war damage caused by Nazi Germany during the Second World War.20
(p. 343) As to the second development, on 16 December 2004 the UN General Assembly adopted by resolution the first international convention on State immunity, entitled the UN Convention on the Jurisdictional Immunities of States and their Property (UN Convention on State Immunity, or UNCSI) based, after some 20 years work, on the International Law Commission’s (ILC) ‘Draft Articles on Jurisdictional Immunities of States and their Property’ and further lengthy debate and revision in the UNGA Sixth Committee and its working party. This Convention adopts the restrictive doctrine of State immunity with regard to civil and commercial proceedings in national courts.
The UNCSI is not yet in force as a matter of treaty law: 30 ratifications are required to bring it into force (Article 30). Currently, 28 States, including China, India, and the UK have signed the Convention and as at 1 January 2014, 14 States have deposited ratifications or acceded to it.21 Sweden and Japan have enacted legislation giving effect to the provisions of the Convention in their national systems and the ICJ, the European Court of Human Rights (ECtHR) and the UK courts have cited UNCSI favourably in their decisions but at the present time less support has come from the USA, Russia and the People’s Republic of China (PRC).
Although both Russia and the PRC signed the UNCSI in 2005 and 2006 respectively, their national courts have subsequently abandoned the restrictive rule. President Yeltsin, and on several occasions the Russian Constitutional Court and the Supreme Commercial Court, have declared that restrictive immunity constituted a customary norm of international law. However, the repeated refusal by Russia to carry out arbitration awards and to permit enforcement orders against its property have resulted in rulings in the Swedish and German courts and in the ECtHR that Russia is in breach of international law and its treaty obligations in this regard.22 In 2013, the ECtHR declared Russia to be in breach of its obligations regarding the right of access to a court under Article 6(1) of the ECHR as a result of the refusal by Russian courts to examine the applicant’s claim, having ‘applied absolute State immunity from jurisdiction without any analysis of the underlying transaction, the North Korea/Russia Trade Treaty 1960 and the applicable principles of customary international law, which under Article 15 (4) of the Constitution form an integral part of the Russian legal system’.23 The PRC in 2005 enacted a national law providing for judicial immunity from execution of central banks of foreign States similar to the restrictive rule provided in the UN Convention24 and, as a member of the WTO and signatory of other international conventions, indicated a willingness to adopt a restrictive rule in its courts (Dahai Qi, 2008). However, when confronted by the possibility of the Hong Kong Special Administrative Region (HKSAR) continuing to apply the restrictive State immunity ordinance which had been enacted under UK rule, mainland China hardened its support for a continuance of the absolute rule of immunity. The Standing Committee of the National People’s Congress confirmed the decision of the Hong Kong Court of Final Appeal, by majority of three to two, deciding that:
The HKSAR cannot, as a matter of legal and constitutional principle, adhere to a doctrine of state immunity which differs from that adopted by the PRC. The doctrine of state immunity (p. 344) practised in the HKSAR, as in the rest of China, is accordingly a doctrine of absolute immunity.25
The UNCSI provides a comprehensive code for the immunity of a State and its property from the civil and administrative jurisdiction of the courts of another State based on the restrictive doctrine of immunity, which is further elaborated upon in the commentaries which accompanied the 1991 ILC draft Articles. (As the UNGA resolution adopting the Convention makes plain, there is a general understanding that the Convention does not cover criminal proceedings, a point considered further in the next section.) The restrictive rule of immunity and the exceptions, which the Convention sets out as regards both the adjudication and the enforcement of judgments in national courts against a foreign State, reflect a balance between the legitimate interests of States as to the exercise of governmental powers and of private parties as regards commercial undertakings; the Convention thus provides ‘a solid foundation on which States can base their domestic law’ either by direct incorporation or harmonization (Stewart, 2005, p 206).
However, as the UN Convention does not yet have the number of ratifications needed to bring it into force, a degree of uncertainty remains. In the light of this uncertainly, the approach followed in this chapter is to ascertain the current law relating to State immunity by examining the provisions of the Convention in the light of the extent to which they are supported by State practice, as evidenced in the decisions of the ICJ, the European Court of Human Rights, other inter-State tribunals and the legislation and case law of the principal municipal jurisdictions.
E. THE ELEMENTS CONSTITUTING THE PLEA OF STATE IMMUNITY
1. The plea as a bar to the judicial power of the forum State in respect of proceedings before a court
The plea concerns immunity from the judicial power of another State, primarily the civil jurisdiction of the courts, though as regards the enforcement of that power it may also involve the executive power and the administrative authorities of that other State; with the exercise of criminal jurisdiction—by the arrest of the defendant by the police, his detention in State operated prisons, prosecution by the forum State’s prosecutor—all treated as matters more closely connected with the executive of the forum State. The plea does not relate to the legislative power of the State—the State’s jurisdiction to prescribe—which goes more to the plea of non-justiciability, act of State, and substantive liability (see later). A State may claim and enjoy other privileges and immunities from the forum State such as immunity for its nationals from military conscription or the privilege of payment of no import duties or preferential rates on petroleum fuel or alcoholic drinks, but these are not the direct concern of the plea of State immunity before a court.
The main significance of a plea of State immunity relates to its effect upon the jurisdiction of a national court of a State other than that of the defendant State,26 including any tribunal exercising judicial or quasi-judicial powers, whether in criminal, civil, family, or other matters, including administrative tribunals. The position regarding arbitration (p. 345) tribunals is different since they derive their authority directly from the consent of the parties and without that consent the arbitration tribunal has no competence to determine the dispute. However, given that the tribunal does not itself have any means through which to give effect to its award, it falls to the State and its courts to enforce an arbitral award, and so the plea of State immunity may have a relevance even as regards arbitratal proceedings (see Section II E 2).
State immunity primarily constitutes a bar to proceedings brought in national courts. It is not generally a bar to proceedings before an international tribunal where States enjoy equal standing and which is not operated within one State’s legal system. Where the authority of the international tribunal derives from a Resolution of the UN Security Council made under Chapter VII which imposes binding obligations on all States, State immunity is no bar to prosecution of a State official. Thus the serving heads Milosevic of the former Yugoslavia, and Jean Kambanda, the former Prime Minister of Rwanda, were prosecuted in the International Criminal Tribunals for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) respectively for international crimes and the International Criminal Court acting under UN SC Resolution 1593 (2005) has indicted a serving Head of State. On somewhat similar grounds Charles Taylor, the serving Head of State of Liberia, was held to enjoy no immunity from the jurisdiction of the Sierra Leone Special Court in respect of criminal proceedings, because that court ruled that it was not a national court but an international tribunal established by agreement between the UN and Sierra Leone pursuant to Security Council Resolution 1315 (2000) holding that: ‘the principle of State immunity derives from the equality of States and therefore has no relevance to international criminal tribunals which are not organs of a State but derive their mandate from the international community’.27 This is reinforced by the decision of the Special Tribunal for Lebanon (STL) Appeals Chamber on 24 October 2012, when it upheld the previous decision of the STL Trial Chamber rejecting a challenge to the legality of the Tribunal, finding that the Tribunal had no power to review the actions of the Security Council in establishing the Tribunal.
It may be necessary, however, to make a distinction between the accused State official whose claim to immunity will have no force before an international tribunal and the position of the State to which such official belongs when questions of enforcement of the tribunal’s orders are concerned. Such distinctions may be particularly relevant in respect of ‘mixed’ or ‘hybrid’ courts which have been set up, that is courts whose constitution and powers are in some respects of an international character and in others of the character of the national law of a particular State; these include the Extraordinary Chambers in the Courts of Cambodia, East Timor Special Panels for Serious Crimes, the Bosnian and Serbian War Crimes Chambers, and the Special Tribunal for Lebanon (STL) (see Cryer, Ch 25, Section IV D and Wickremasinghe, Ch 13, Section VIII C in this book). The STL is an excellent illustration of the mixed international and national character of its constitution: although set up by a Chapter VII Security Council resolution, the jurisdiction conferred on the tribunal is over ‘the persons responsible for the attack of 14 February (p. 346) 2005 resulting in the death of former Lebanese Prime Minister Rafiq Hariri and in the death or injury of other persons’ and ‘the provisions of the Lebanese Criminal Code relating to the prosecution and punishment of acts of terrorism, crimes and offences against life and personal integrity...’ are made applicable to the prosecution of such persons for the attack.28 It would seem that immunity is no bar to the prosecution of a crime under Lebanese law of any individual present in Lebanon and charged before the STL but enforcement against a State other than Lebanon may require its consent or a Chapter VII SC resolution.
Whether or not one characterizes the situation as one of immunity or not, that the effective operation of international tribunals remains dependent on the cooperation of States, a fact clearly recognized in the principle of complementarity and the need for an express provision relating to diplomatic and State immunity in the Rome Statute which established the International Criminal Court (ICC).29
Since the plea of immunity acts as a personal bar ratione personae it may be removed with the consent of the defendant State. Accordingly, if the beneficiary State waives the immunity, the national courts of the other State will have jurisdiction to proceed against it. Modern law has broadened the occasions on which consent may be given; but three conditions remain—(a) that consent to waive the immunity must be given by the State itself not by the agency or individual performing the sovereign act on the State’s behalf; (b) its expression be unequivocal and certain; (c) that waiver of immunity from execution requires a separate waiver from immunity from adjudication. US law interprets these requirements to permit implied as well as express consent to waive both immunity from jurisdiction and from execution, but waiver of immunity from prejudgment attachment of a State’s property must be by express consent.30 English law is narrower; it has abandoned the strict requirement that submission be made in the face of the court (to the judge hearing the case), but still requires that consents to both jurisdiction and execution to be given separately and in writing.31 Waiver of immunity is to be distinguished from submission to the jurisdiction of a particular national court; thus a general waiver of immunity is not of itself to be construed as amounting to a submission to the jurisdiction of the English courts as required by the State Immunity Act 1978 (SIA) s 2(1).32
Implied consent: The facts or circumstances surrounding a claim have been used to imply consent and hence waiver by a State of its immunity. Consent to local proceedings has been used to develop the restrictive doctrine—if the State consents to trade then it is implied and deemed to consent to adjudication of disputes with private parties relating to such trade by the courts and to the law of the place where that trade is conducted. Similarly, reliance has been placed on the consent of a State contained in an arbitration agreement to support the recognition of the award by the national courts of the State where the arbitration takes place or whose State’s law is the applicable law to the dispute; ‘Arbitration is a consensual procedure and the principle underlying s 9 is that, if a State has agreed to (p. 347) submit to arbitration, it has rendered itself amenable to such process as may be necessary to render the arbitration effective’.33 More controversial is whether consent to arbitration can be construed as consent to the enforcement of the award against the State’s property either by the courts of the State where the arbitration is held or by courts elsewhere.34 To avoid such fictional extensions of consent, SIA, s 9, along with other common law legislation, has enacted an express exception to immunity for proceedings which relate to an arbitration. Implied consent has also be relied upon to justify the removal of immunity for claims arising from the commission of war crimes and crimes against humanity, the argument being that if the State consents to acts which contravene international obligations voluntarily assumed by treaty then it must be deemed to consent to the removal of immunity for such crimes.35 However, this line of argument has been rejected. US courts have held that the provision in the FSIA relating to implied waiver is subject to an intentionality requirement. ‘Implied waiver depends upon the foreign government’s having at some point indicated its amenability to suit’.36
3. A procedural plea to the jurisdiction of the court, not an exemption from liability
The plea is one of immunity from suit, not of exemption from law. The ICJ has said that
[t]he rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another....It regulates the exercise of jurisdiction in respect of particular conduct and is thus entirely distinct from the substantive law which determines whether that conduct is lawful or unlawful.37
State responsibility concerns the extent to which the acts of a person, legal or human, may be attributed to a State whereas State immunity acts as a bar to acts of one State being subject to the jurisdiction of another. The entitlement to immunity is, therefore, not lost by reason of the gravity of the injury, its criminal nature under international law or the lack of alternative means of securing redress.38 The underlying liability or responsibility of the defendant State remains unaffected by the grant of immunity, even though this may result in no remedy being available and liability avoided. Where immunity is waived the case can, of course, be decided by the application of the law in the ordinary way.39
(p. 348) 4 The nature of the proceedings in the national court
The plea affords to a varying degree immunity to one State in respect of criminal and civil proceedings in the court of another State.
Immunity from civil proceedings
A general rule of immunity from civil jurisdiction subject to exceptions for acts of a private law or commercial nature—the restrictive doctrine—is applied in the 2004 UN Convention on State Immunity and by the USA, common law countries, and Western European States. A distinction is applied by the restrictive doctrine between acts undertaken by the foreign State in the exercise of its sovereign authority—acta jure imperii, such as acts of the armed forces, police, diplomatic and political agents and agencies of the foreign State which continue to attract immunity—and the acts which it undertakes which are of a commercial or private law nature—acta jure gestionis, such as the sale of goods, contracts of employment, loans and financial arrangements—which do not attract immunity. The exceptions to immunity based on the restrictive doctrine are considered further in Section II G (‘Exceptions to adjudication jurisdiction’). For the current position as to immunity from civil proceedings for acts in contravention of international law, see Section VI.
Immunity from criminal proceedings:
The immunity of a foreign State in respect of criminal proceedings brought in another State remains generally absolute. As regards the criminal position of State officials, however, the position in international law is less certain. The growing consensus that perpetrators of international crimes should not go unpunished has led to the prosecution of high ranking State officials not only before international criminal tribunals but also before national courts,40 encouraged by the decision of the House of Lords in 1999 in the Pinochet No 3 decision,41 in which it decided that a former Head of State present in England had no immunity from extradition proceedings in respect of the alleged offences—torture, a crime involving violation of a fundamental human right—even though the acts in question were committed while the former Head was still in office and were official acts undertaken for the purposes of the State. In 2002, however, the International Court of Justice reaffirmed that the Arrest Warrant case that a Minister for Foreign Affairs (and other high officials), whether in office or no longer serving, enjoys the complete immunity from criminal proceedings in a court of another State, save for ‘acts committed in a private capacity’.42
A distinction is made in the plea of immunity between ‘adjudication jurisdiction’ and ‘enforcement jurisdiction’. The application of coercive measures to a State and its property involves different and more directly intrusive mechanisms than the ruling of a municipal court as to liability. Adjudication jurisdiction relates to the court’s inquiry into the claim and its adjudication by means of a judgment or declaration of the rights and obligations of the parties; it extends to interlocutory proceedings and appeal. Enforcement jurisdiction (p. 349) relates to the making and execution of mandatory orders or injunctions against the State in respect of, for example, attachment of property, restitution, damages, penalties, production of documents or witnesses, and accounts.
The distinction between the two, however, may not always be easily made; winding up proceedings in respect of proved liabilities, the order of a court to recognize a judgment given by the court of another State resemble proceedings for an order for attachment or other measures of constraint against State property but the better view is that they constitute new proceedings relating to the adjudicative stage.
The ICJ’s treatment of the Italian court’s decisions enforcing the judgment of the Greek court in respect of the German property—the Villa Vigoni—located in Italy in the Jurisdictional Immunities case illustrates the difference. At the first stage, adjudication, the issue was ‘whether the Italian judgments declaring enforceable in Italy the pecuniary awards pronounced in Greece, did themselves—independently of any subsequent measure of enforcement—constitute a violation of the Applicant’s immunity from jurisdiction’. At the second, enforcement, stage the question was ‘...to determine whether a measure of constraint—such as the legal charge on Villa Vigoni—violated Germany’s immunity from enforcement’.43 While the ICJ noted there to be a link between the two stages, since the measure of constraint against Villa Vigoni could only have been imposed on the basis of the judgment of the Florence Court of Appeal granting an exequatur in respect of the judgment of the Greek court in Livadia, it declared that the two issues remained distinct since they were governed by different sets of rules (see also Section II H of this chapter).
F. DEFINITION OF THE FOREIGN STATE FOR THE PURPOSE OF STATE IMMUNITY
Application of a restrictive doctrine has brought about a change in focus from the person of the State to the acts performed by the State or its agents, from status to function; the question is less whether an entity established, managed, or funded by the State is immune ratione personae and more whether the act performed by whosoever is of governmental nature and hence immune ratione materiae (see also Wickremasinghe, Ch 13, Section VI of this book). Nonetheless the personal nature of State immunity remains important, both for the State itself as regards its own position as a defendant in proceedings before a national court and also because the relationship between an agency and the foreign State is important in determining the extent to which immunity and its particular procedural requirements, apply to State agencies.
1. The State
Special procedural requirements concerning notice of proceedings, judgments and delayed time limits apply to proceedings against a State, which also has the option of waiving its immunity and submitting to the jurisdiction of the forum State.44
(p. 350) 2. State agencies
For the State agency, entitlement to immunity may afford it the special protection enjoyed by the State itself, as regards both the substantive law and special procedural requirements. The US FSIA goes so far as to treat all instrumentalities and agencies as coming within the definition of a foreign State for the purposes of immunity though with reduced restrictions as to procedure and enforcement against property held by the agency. Other jurisdictions distinguish between the central organs or departments of government which come within the protection of State immunity and other State agencies; but it remains controversial whether the appropriate criterion for attribution of the agency’s act to the State is by authorization or performance in exercise of sovereign authority or whether both cumulatively should be applied, as in the 2004 UN Convention, Article 2.1(b)(iii) of which defines ‘State’ as including ‘agencies or instrumentalities of the State or other entities, to the extent that they are entitled to perform and are actually performing acts in the exercise of sovereign authority’.
The UK SIA s 14(1)(c) limits the conferment of immunity to ‘separate entities...distinct from the executive organs of the State and capable of suing and being sued’, where such a ‘separate entity’ acts in the exercise of sovereign authority and the circumstances are such that the foreign State itself would be immune (SIA s 14 (2)). This requires an English court to engage in an extensive review of the past and present operations of an entity to determine which factor—the extent of the foreign State’s control or the functions of the entity in conformity with private law of the forum State—is to prevail.45 This can result in courts producing conflicting decisions, influenced in part by the extraneous consideration such of questions of sham, of fraud or the possibility of ‘lifting the corporate veil’. In an attempt to clarify the position the Privy Council in the recent case of Gecamines has identified a separate entity as ‘enjoying a hybrid status’ and declared that in determining its status there should be applied a ‘strong presumption...that its separate status should be respected’.46 This approach would seem to differ from the European Convention on State Immunity, Article 27 and the UN Convention, Article 2.1(b)(iii), both of which require the application cumulatively of both factors.
3. Representatives of the State
The UN Convention’s inclusion within its definition of ‘State’ ‘representatives of the State acting in that capacity’, Article 2.1(b)(iv), is likely to cause confusion, given that Article 3 states that the convention is without prejudice to the privileges of diplomatic missions, consular missions, special missions and missions to international organizations and the privileges and immunities accorded under international law to Heads of State ratione personae. The object would seem to bring official acts performed by officials on behalf of the State within the scope of the UN Convention, and to grant immunity ratione materiae for such acts, but to exclude, as governed by other international conventions or international customary law, the immunity ratione personae enjoyed by high ranking officials of the State by virtue of their office.
(p. 351) In English law, the Court of Appeal has held that the word ‘government’ in SIA, s 14(1) has to be construed as affording to individual employees or officers of a foreign State protection under the same cloak as protected the State itself. The protection afforded to States by SIA would be undermined if employees or officers of the State could be sued as individuals for matters of State conduct in respect of which the State they were serving had immunity.47 Thus the exceptions which apply in SIA to the State are applicable to officers of the State. In US law the definition of a ‘foreign state’ includes ‘an agency or instrumentality of a foreign state’, which in turn ‘means any entity—(1) which is a separate legal person, corporate or otherwise’ (FSIA s 1605 (a)-(b)). Conflicting decisions in the federal circuit courts whether the definition included ‘natural persons’ were resolved in 2010 by the Supreme Court determining that, there being no ‘evidence of the intent to include individual officials within the meaning of “agency or instrumentality”’, the FSIA had not replaced the common law with respect to the immunity of individual officials, according to which the Department of State, on the request of the foreign State, determines whether the official was acting in an official capacity (and so entitled to immunity) or not when undertaking the act in question.48 In effect, while the conduct of a foreign official might still be construed as an act of the State for which there is no immunity (as it has been lifted by the FSIA), the State officials themselves might enjoy a greater degree of immunity than that of the State itself, including immunity from criminal prosecution for international crimes.49
Further confusion may be caused by the failure of the UN Convention Article 3 or the accompanying Understandings to make any reference to the exclusion from its scope of acts performed by the armed forces of a State, something which is widely found in State practice, as was shown by the examination of national legislation and case law by the ICJ in the Jurisdictional Immunities case. However, on introducing the Convention for adoption by the UNGA 6th (Legal) Committee, the Chairman of the ad hoc committee, Professor Gerhard Hafner, stated his belief that a general understanding had always prevailed that military activities were not covered by the Convention and referred to the 1991 ILC Commentary on draft Article 12 (the exception relating to personal injuries and damage to property) stating it did not apply to situations of armed conflict.50
G. EXCEPTIONS TO ADJUDICATION JURISDICTION
1. The exceptions to immunity from civil jurisdiction of a foreign State
Today there is widespread acceptance that the immunity of the foreign State from adjudication jurisdiction may properly be restricted by exceptions, whereas immunity from enforcement jurisdiction remains largely absolute.
(p. 352) Widely recognized exceptions include proceedings relating to contracts which a private party may enter or which are of a commercial nature, contracts of employment other than those with nationals of the sending State engaged in public service, immoveable property, personal injuries, or damage or loss to property of a tangible nature, and proceedings relating to the operation of seagoing ships and their cargo. The US Act stands alone in removing immunity for claims in respect of expropriation of property contrary to international law.
The main exception in the restrictive doctrine relates to commercial transactions between a private party and the foreign State. It has proved difficult to find a workable criterion, particularly for borderline cases, by which to distinguish a commercial transaction from one in exercise of sovereign authority. As explained in the Empire of Iran case, ‘the generally recognized sphere of sovereign activity’ which remains immune ‘includes the activities of the authorities responsible for foreign and military affairs, legislation, the exercise of police power and the administration of justice’. While the significance of the distinction was recognized by the ICJ in the Jurisdictional Immunities case, and that ‘States are generally entitled to immunity in respect of acta jure imperii’,51 it provided no criteria for distinguishing between them, other than that ‘the acts in question fall to be assessed by reference to the law governing the exercise of sovereign power (jus imperii) or the law concerning non-sovereign activities of a State, especially private and commercial activities (jus gestionis)’.52 However, examples of the retention of immunity for acts in the exercise of sovereign immunity can be found in the careful drafting of enacted exceptions to State immunity.53
The competence of civil courts as in France is restricted to civil and commercial matters, and does not extend to public and administrative matters; it is, therefore, not too difficult to apply the civil court’s criterion of an act or transaction in which an individual may engage, as opposed to ‘un acte de puissance publique ou un acte qui a été accompli dans l’intérêt d’un service public’ to proceedings brought against a foreign State. A reflection of this approach is to be found in Article 4 of ECSI which allows an exception for proceedings relating to an obligation of a State by virtue of a contract—a contract being a legal transaction in which a private person may engage. Applying the same approach to non-contractual claims of a private law character, immunity was refused by the Austrian Supreme Court when sought by the USA in respect of a claim for damages arising out of a road accident due to the negligence of an embassy driver when collecting the mail of the US air attaché.54 The court distinguished a sovereign act from a private one, such as the operation of a motor car and the use of public roads, where the relationship between the parties was on the basis of equality with no question of supremacy, rather than subordination; in (p. 353) applying the distinction the court looked to the nature of the act of driving as opposed to its purpose, being the collection of mail between government departments.
Common law courts are generally not of limited competence and consequently have no national practice as to what constitutes an act performable by a private person as opposed to a State. But mindful of the underlying rationale of the restrictive doctrine—that States which engage in trade should be amenable to jurisdiction—they have applied a test of commerciality in determining the non-immune nature of the proceedings. Questions concerning contracts made in the territory of the foreign State and governed by its administrative law are expressly excluded from the commercial transaction exception in the UK SIA s 3(2).
Section 1605(a)(2) of the US FSIA removes immunity where claims are based upon a commercial activity and s 1603(d) provides that, ‘The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by any reference to its purpose’. Commerciality is not defined by the US Act and conflicting and inconsistent decisions have been given in proceedings relating to development of natural resources, foreign assistance programmes, and government exchange control. Thus US courts have held immune the cancellation of an agreement licensing the export of rhesus monkeys,55 and mistreatment by police resulting from a whistle-blowing complaint made in the course of employment under contract in a hospital;56 and held non-immune a technical assistance contract under which the contractor enjoyed diplomatic immunities and tax exemption,57 a foreign government’s undertaking to reimburse doctors and the organ bank for kidney transplants performed on its nationals in US hospitals,58 and a restriction on the payment of government-issued bonds due to a shortage of foreign reserves;59 and evaded determining the issue whether the leasing of prisoners of war as slave labour by the Nazi regime to German industrial concerns constituted a commercial activity.60
To avoid such difficulties, the European Convention, the UK Act, and similar legislation of other Commonwealth States, have adopted a listing method by which proceedings relating to specific categories of commercial transactions are listed as non-immune; thus s 3 of the UK SIA lists as non-immune commercial transactions ‘sale of goods or supply of services’, and ‘loans or other transaction for the provision of finance, guarantee or indemnity of any such transaction or of other financial obligation’ (s 3(3)(a) and (b)) (such transactions are not qualified by the condition ‘otherwise than in the exercise of sovereign activities);61 and both that Act and the 1972 European Convention also make non-immune proceedings relating to certain contracts of employment, to participation in companies or associations, and to claims relating to patents, trademarks, and other intellectual property rights (ECSI Articles 5, 6, and 8; SIA ss 4, 7, and 8). The listing approach is also adopted by the UN Convention which sets out exceptions for commercial transactions (Article 10), contracts of employment (Article 11), ownership and use of property (Article 13), intellectual and industrial property (Article 14), companies (Article 15), and ships (Article 16).
(p. 354) Even with this method, provision has to be made for a residuary category which turns on the application of the public/private act distinction, and the cases of I Congreso del Partido (whether disposal of a cargo by a State agency contrary to terms of the contract of carriage on orders of the State for political reasons was immune)62 and Kuwait Airways Corp v Iraqi Airways Co (whether seizure and transfer of Kuwaiti aircraft to Iraq after the invasion of Kuwait with a view to incorporation in the Iraqi civil airfleet was immune),63 demonstrate the difficulty of distinguishing a commercial transaction from an act in exercise of sovereign authority. The accepted solution applied by English courts is to determine the nature and not the purpose of the activity. But when applied to determine the nature of the funds held in a bank account of a diplomatic embassy this test proved arbitrary; such funds could be treated as being used for the purchase of goods and services—clearly commercial acts—or more broadly for the discharge of diplomatic functions, which were clearly activities in exercise of sovereign authority.64
Faced with these difficulties, Lord Wilberforce reformulated the test as requiring a court to consider:
...the whole context in which the claim against the State is made, with a view to deciding whether the relevant act(s) on which the claim is based should, in that context, be considered as fairly within an area of activity, trading or commercial or otherwise of a private law character, in which the State has chosen to engage or whether the relevant activity should be considered as having been done outside the area and within the sphere of governmental or sovereign activity.65
Therefore, when deciding cases both under the statute66 and under the common law, a purposive construction of the public/private criterion is now applied which takes account of the whole context, including the place where the persons are alleged to have committed the acts and those who were designed to benefit from the conduct complained of. Thus, for example, and although by their nature the acts in question were ones which a private person might have committed, proceedings brought against visiting US forces were barred since on the facts of the cases those acts had been performed in the exercise of sovereign authority by reason of their having been undertaken by service personnel and in pursuance of the purpose of maintaining an efficient fighting force.67
The relevance of purpose as well as the nature of the transaction was much debated by the ILC and its final formulation of the UN Convention, Article 2(2) reads as follows:
In determining whether a contract or transaction is a ‘commercial transaction’ under paragraph 1 (c), reference should be made to the nature of the contract or transaction, but its purpose should also be taken into account if the parties to the contract or transaction (p. 355) have so agreed, or, if in the practice of the State of the forum, that purpose is relevant to determining the non-commercial character of the contract or transaction.
The reference to purpose, designed to accommodate developing States’ wish to retain immunity for contractual transactions vital to their economy or for disaster prevention or relief, has resulted in a complex piece of drafting strengthening the defendant’s immunity by which the national court may be required to engage in a four-stage exercise in determining whether it has jurisdiction in a commercial transaction under Article 2(1)(c)(iii).68 The Annex of Understandings contains nothing specific with regard to this Article and it would seem that the ambiguities present in the Article constitute an open invitation for reservation or interpretative declaration to any State proposing to give effect to the Convention in its law by ratification. However, it should not be forgotten that the Working Group of the ILC itself in 1999, after an exhaustive review of the whole subject, concluded that ‘the distinction between the so-called nature and purpose tests might be less significant in practice than the long debate about it might imply’.69
Non-commercial tort acts
In addition to the various exceptions which remove immunity for specified commercial activities, the UN Convention and State practice in legislation and court decisions allow an exception for certain non-contractual delictual activities of a foreign State. Thus, Article 12 of the 2004 UN Convention contains an exception from immunity in civil proceedings which ‘relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State, and if the author of the act or omission was present in that territory at the time of the act or omission’. Three comments are relevant to understanding the scope of this exception for delictual or tortious conduct of a foreign State. First, its scope is narrow, being confined to physical infliction of damage to the person or property with its origin derived from insurable risks arising from physical injuries and damage resulting from traffic accidents; proceedings relating to false, defamatory, or negligent statements are not included and this exclusion ensures that much delictual conduct arising from complaints as to the information or publications of a foreign State remains immune. Secondly, the exception only relates to wrongful conduct of a foreign State committed in the territory of the forum State: the UK SIA s 5 merely refers to ‘(a) the death or personal injury; or (b) damage to or loss of tangible property, caused by act or omission in the United Kingdom’; the US FSIA s 1605(a) (5) is similar with the personal injury, death or damage to or loss of property occurring in the USA (but excludes any claim based on failure of any State official or employee to exercise or perform a discretionary function); the UN Convention Article 12, following the 1977 European Convention on State Immunity, Article 11, is even stricter, limiting proceedings to where the author is present in the forum State at the time when the facts occurred. This territorial requirement present in all conventional or legislative formulations of the exception prevents the exception’s application to personal injuries inflicted abroad and restricts the exercise of extraterritorial jurisdiction over a (p. 356) foreign State in respect of such claims. Thirdly, the exception in the UN Convention and common law legislation contains no requirement that the personal injury or damage to property be caused in the course of commercial activity; injury or damage resulting from an act in exercise of sovereign authority is recoverable, as for example proceedings for State-ordered assassination of a political opponent which has been held non-immune under a similar tort exception in the US FSIA. Indeed the ICJ was careful in its latest judgment not to ‘resolve the question whether there is in customary international law a “tort exception” to State immunity applicable to acta jure imperii in general’.70
Not all jurisdictions accept such a wide removal of State immunity for non-contractual claims; in a case relating to immunity in respect of an assault by a soldier of the foreign State while within the territory of the forum State, the European Court of Human Rights after a survey of State practice, concluded that a ‘trend in international and comparative law towards limiting State immunity in respect of personal injury caused by an act or omission within the forum State’ refers primarily ‘to “insurable” personal injury, that is incidents arising out of ordinary traffic accidents, rather than matters relating to the core area of State sovereignty such as the acts of a soldier on foreign territory which, of their very nature may involve sensitive issues affecting diplomatic relations between States and national security’.71
The Greek and Italian courts in the Voiotia and Ferrini cases respectively sought to apply this territorial exception to claims relating to war damage: in Voiotia,72 decided in 2000, the Greek Supreme Court awarded some $30 million in damages to Greek nationals for personal injuries and loss of property suffered at Distomo by reason of acts of the German occupying forces in 1944 and in 2004, in Ferrini73 the Italian Supreme Court awarded damages for forcible deportation and forced labour of an Italian national by German military authorities during the Second World War disregarding Germany’s immunity and enforcing the German judgment against the Villa Lagoni, a German property located in Italy.74
Germany referred to the International Court of Justice its claim against Italy for breach of international law by violation of its immunity by Ferrini and similar decisions of the Italian courts. Basing its jurisdiction on the European Convention for the Peaceful Settlement of Disputes 1957, by which the two States had conferred jurisdiction on the Court in respect of disputes after 1961, and applying customary international law, the International Court upheld Germany’s claim in its entirety. In respect of the claims (p. 357) relating to immunity from adjudication, it rejected the application of any territorial tort exception to State immunity as regards the deportation to Germany and enforced labour in German factories of Italian nationals entitled to prisoner of war status: ‘State practice in the form of judicial decisions supports the proposition that State immunity for acta jure imperii continues to extend to civil proceedings for acts occasioning death, personal injury or damage to property committed by the armed forces and other organs of a State in the conduct of armed conflict, even if the relevant acts take place on the territory of the forum State’.75
The International Court’s rulings as to the legality of the Italian courts’ orders relating to the German Villa Lagoni usefully clarified the law both as regards the extent to which an exception to immunity from adjudication exists in respect of a foreign judgment made by a third State relating to immunity, and as regards enforcement, with regard to the criterion for the removal of immunity in respect of measures of constraint against foreign State property (see also Section II H of this chapter). As regards Germany’s claim that its immunity was infringed by the Italian courts’ grant of exequatur to enforce of the Voiotia judgment, the ICJ pointed out that it was not necessary to determine whether the Greek courts had violated German immunity in the Voiotia case. Rather, the correct question was whether the Italian courts had respected Germany’s immunity from jurisdiction in allowing the application for exequatur. For the same reasons as it upheld German immunity in respect of the Italian claims relating to war damage, the ICJ concluded that the Italian courts would have been obliged to grant immunity to Germany if they had been seized of the merits of a case such as Voiotia. Therefore, they could not grant exequatur without violating Germany’s jurisdictional immunity.
The wider significance of the Jurisdictional Immunities judgment and the acceptability of the force of the public/private criterion on which it rests as the sole determinant of relevance of a plea of State immunity is examined in the final section of this chapter.
2. Jurisdictional connection of non-immune proceedings with the forum State
The limitation of the personal injuries exception to acts committed in the forum territory highlights the general question whether the jurisdiction of national courts over foreign States is conditional on some close link with the territory of the forum State, and whether such a link is the same or stricter than that which principles of private international law provide for civil litigation between private parties. Both the European Convention on State Immunity and the US FSIA require as regards the removal of State immunity that there be a nexus or jurisdictional connection with the forum State in respect of each of the recognized exceptions to State immunity. That jurisdictional connection for some exceptions, as with employment contracts and personal injuries, is stricter than those recognized in private international law for private party litigation. The UK and other common law jurisdictions which follow the SIA have also accepted additional jurisdictional links for the employment, tort and other exceptions; only in respect of the commercial transaction exception, the arbitration and State ships exceptions is there an absence of a connection other than those required in ordinary litigation for the exercise of extraterritorial personal jurisdiction under Civil Procedure Rules, r 6.26 (formerly RSC Order 11, r 1) or like common law procedures. Recently the UK Supreme Court in NML v Argentina endorsed the omission in s 3(1)(a) of a jurisdictional link between the foreign State’s commercial (p. 358) transaction and the UK jurisdiction. In the leading judgment Lord Phillips said, and which point all their Lordships concurred:
I can see no justification for giving section 3(1)(a) a narrow interpretation on the basis that it is desirable to restrict the circumstances in which it operates to those where the commercial transaction has a link with the United Kingdom. The restrictive doctrine of sovereign immunity does not restrict the exemption from immunity to commercial transactions that are in some way linked to the jurisdiction of the forum.76
The UN Convention adopts a neutral position, referring in Article 10(1) to the determination of jurisdiction over the commercial transaction exception to ‘the applicable rules of private international law’ of the forum State.77
For proceedings which are clearly identical to those brought in private litigation, there may be no need to require any special additional jurisdictional link where the defendant is a foreign State. But for proceedings which relate to conflicts of jurisdiction between States, as further discussed in Section VI, the plea of immunity at the present time serves to demarcate the limits of State jurisdiction exercisable over the public acts of another State. Until agreed rules for the allocation of jurisdiction replace the present exclusive jurisdiction of the State over acts in exercise of sovereignty performed within its own territory, the restriction of the exception to immunity for non-contractual delictual acts to the performance of those within the territory of the forum State and indeed the general bar of State immunity is likely to remain.
H. IMMUNITY FROM ENFORCEMENT
Unlike its immunity from adjudication which is subject to exceptions, a foreign State continues largely immune from forcible measures of execution against its person or property; as the ICJ has said, the rules of customary international law governing immunity from enforcement are distinct from and go further than those governing jurisdictional immunity, and must be separately applied.78
1. Immunity of the person of the State or representatives from coercive measures
Immunity from measures against the personal representative of the State remains absolute. As recently confirmed by the International Court of Justice in the Arrest Warrant case, no Head of State, head of government, or Minister for Foreign Affairs while in office may be arrested by order of the national court of another State or preliminary measures such as the issue or international circulation of an arrest warrant taken against such persons.79 The personal immunity enjoyed by such persons while in office is an important element of the (p. 359) State’s own immunity enabling it to function effectively. In the Djibouti v France case the Court laid down a requirement that ‘the State which seeks to claim immunity for one of its organs is expected to notify the authorities of the other State concerned, whether through diplomatic exchanges or before a French judicial organ’, and explained that ‘this would allow the court of the forum State to ensure that it does not fail to respect any entitlement to immunity and might thereby engage the responsibility of that State. Further the State notifying a foreign court that judicial process should not proceed, for reasons of immunity against its State organs, is assuming responsibility for any internationally wrongful act at issue committed by such organs’.80 It would thereby effect a warning that any failure to respect immunity might engage the international responsibility of the forum State and further inform that State that the notifying State assumes its own responsibility for any internationally wrongful act committed by such organs.
No injunction or order for specific performance may be directed by a national court against a foreign State on pain of penalty if not obeyed. Thus the Netherlands Supreme Court has ruled that it has no jurisdiction to declare a foreign State bankrupt:
Acceptance of this jurisdiction would imply that a trustee in bankruptcy with far-reaching powers could take over the administration and the winding up of the assets of a foreign power under the supervision of a Dutch public official. This would constitute an unacceptable infringement under international law of the sovereignty of the foreign State concerned.81
For this same reason the UK SIA s 13(1) prohibits the imposition of any penalty by way of committal or fine in respect of any failure or refusal by the State to disclose information or produce any document, and s 13(2) the giving of any relief against a State by way of injunction or order for specific performance or recovery of land or other property.
2. Immunity of State property from coercive measures
Some relaxation of immunity would seem appropriate where a judgment is rendered in respect of a non-immune commercial or private law transaction; one might expect that the restrictive doctrine would permit the local court to have jurisdiction to execute such a judgment against the property of the foreign State, by forcible means if necessary. The practice of the Swiss courts in fact endorses such an approach stressing ‘the overall unity of substantive law’, and that ‘a judgment imports enforceability’. The Swiss Federal Tribunal has held that to refuse execution would mean that the judgment would lack its most essential attribute, namely that it will be executed even against the will of the party against which it is rendered.82
The practice of other States, however, remains more cautious and reflects underlying political realities that there is no international law of insolvency to resolve a State’s general inability to meet its financial commitments. Rescheduling of State debt continues today as largely a political process.83 Short of resort to war there is, therefore, little alternative (p. 360) where property in the control of the debtor State is concerned but to reach a settlement of judgment debts with its cooperation and by diplomatic means.
In consequence, as declared in another decision of the German Federal Constitutional Court in The Philippine Embasssy case ‘...Whilst the general rules of international law imposed no outright prohibition on execution by the State of the forum against a foreign State....there is an established general custom among States backed by legal consensus, whereby the State of the forum is prohibited from levying execution, under judicial writs against a foreign State, on property of the foreign State which is situate or present in the State of the forum and is used for sovereign purposes except with the latter’s consent’.84 In accordance with this decision, State practice and the UN Convention on State Immunity now recognize an exception to the general rule of immunity from execution in respect of State property in use for commercial purposes. English law now permits the recognition and enforcement of a foreign judgment given against a State, (other than the UK or the State to which that court belongs) provided the foreign court would have had jurisdiction if it had applied the UK rules on sovereign immunity set out in SIA ss 2 to 11,85 but execution without the consent of the State remains solely in respect of State property shown to be ‘in use or intended for use for commercial purposes’ (SIA s, 13(4)). The UN Convention draws a distinction, also generally recognized, between measures of enforcement against the property of a State prior to adjudication from those taken post-judgment; while as regards both prior and post judgment the rule of immunity is absolute unless the State has consented, or allocated or earmarked the property for the satisfaction of the claim. An additional exception to immunity, somewhat narrower than SIA s. 13(4), is permitted in respect of post judgment measures for State property in use for commercial purposes, Article 19(c) (see Section II H 6 of this chapter).
In the Jurisdictional Immunities case the ICJ, when deciding whether Germany’s immunity from enforcement had been infringed by the Italian court’s imposition of a legal charge on the German Villa Lagoni, referred to Article 19 of the UN Convention and, without deciding whether it reflected current customary international law, noted that it provided for three exceptions to immunity—express consent, allocation by the State, and the use of State property ‘for an activity not pursuing governmental non-commercial purposes’. Finding that Villa Vigoni was used for wholly cultural purposes, it concluded that it was used entirely for non-commercial governmental purposes and so was immune from measures of constraint.86
3. State property generally recognized as immune
Diplomatic and military property have generally been recognized in State practice as categories of State property used for sovereign purposes and consequently have enjoyed immunity from seizure, even in the event of a general waiver by the State of its immunity from enforcement, and the category of the property of central banks, though not as well established, had also been recognized as enjoying immunity in the US FSIA and UK SIA (p. 361) and more recently by China. The UN Convention on State Immunity adds two relatively new categories, property forming part of the cultural heritage of a State or of its archives, and property forming part of an exhibition of objects of scientific, cultural, or historical interest (Articles 21(1)(d) and (e)).87
Property of the diplomatic mission
In The Philippine Embassy case (referred to in n 84 in this chapter) immunity was recognized when attachment was sought of the account of the Philippine diplomatic mission in Bonn to satisfy a judgment for unpaid rent of an office. The 1961 Vienna Convention on Diplomatic Relations, Article 22(3) explicitly provides:
The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.
Although the bank account of the mission is not expressly mentioned in the Vienna Convention, State practice, confirmed by Article 21(1)(a) of the 2004 UN Convention which expressly refers to ‘any bank account’, overwhelmingly recognizes that an account of a diplomatic mission held in a bank in the forum State enjoys immunity unless it can be affirmatively shown that the sums deposited have been specifically allocated to meet commercial commitments.
Ships of war were recognized to be immune from local jurisdiction from the eighteenth century or earlier, but the modern category of military property, as defined in the UN Convention on State Immunity as ‘property of a military character or used or intended for use in the performance of military functions’ (Article 21(1)(b)), is capable of a wider meaning.88 The US Act adopts a similar definition of property used or intended to be used ‘in connection with a military activity’, which, the House Report explains, includes not only all types of armaments and their means of delivery but also basic commodities such as food, clothing and fuel to keep a fighting force operative.89 The existence of such an immune category exposes sales of military equipment to a plea of immunity from jurisdiction. Such a possibility would seem to be avoided in English law and come within the SIA s 3 definition of a commercial transaction provided the sale is in ordinary private law form and not pursuant to an agreement between States.
Central bank property
As regards the property of a central bank, the practice under US and UK legislation and some other States, though some countries have no specific rules on the matter, supports immunity from execution of property of a central bank where that bank performs the functions of a central as opposed to commercial bank; China recently has adopted legislation conferring similar immunity from ‘measures of constraint such as attachment and execution’ on the property of foreign central banks unless there has been express waiver (p. 362) in writing or allocation of the property.90 Article 19(1)(c) of the UN Convention on State Immunity is in line with this practice when it provides that property of the central bank or other monetary authority of the State shall be immune and not treated as property in use or intended commercial use unless the State has expressly consented in writing or specifically allocated or earmarked such property to satisfy the judgment. In a case relating to the of State property held by a private corporation in the name of the State’s central bank the English court construed the term ‘property of the State’ in the SIA ‘include all real and personal property and will embrace any right, interest, legal, equitable or contractual in assets that might be held by a State or any “emanation of the State” or central bank or other monetary authority that comes within sections 13 and 14 of the Act’.91 Recently the placing of excess foreign exchange reserves in Sovereign Wealth Funds by certain States, often with a declared purpose of their ‘use for future generations’, has raised issues relevant to their enjoyment of immunity from execution, particularly where invested in equities, derivatives or short term commercial assets (Truman, 2007). Such Funds, whether held in the name of the State or its central Bank, currently enjoy, under US, UK, and Chinese legislation and the UN Convention, complete immunity from enforcement measures. Where, however, such a fund is deployed for the purpose of wealth enhancement by ‘playing the markets’, it would seem, at least as regards the fees of brokers, banks and other third parties which such transactions generate, that for the purposes of attachment these credits in the funds might be treated as for commercial purposes despite the overall long term intention of the fund to serve as a reserve for the State and its people.
Cultural heritage of the State
The two new categories in the UN Convention—relating to protection of property ‘forming part of the cultural heritage of a State or part of its archive and not intended for sale’, and to property ‘forming part of an exhibition of objects of scientific, cultural, or historical interest and not placed or intended to be placed on sale’—would seem designed to deter pillage and illegal export of a country’s scientific, cultural or historical treasures. As to the first category, the subject is complicated by applicable laws of ownership, State regulation of privately owned national treasures, and claims of individuals to property expropriated in time of armed conflict.92 Where the presence of cultural objects is restricted to their temporary public exhibition State practice seems more favourable to conferment of immunity; in 2004 the Swiss Ministry of External Affairs declared that cultural property of a State on exhibition was immune and overruled a court order on the application of a creditor of Russia, the Swiss trading company NOGA for the seizure of paintings from the Moscow’s Pushkin Museum on exhibition in Switzerland and ordered their return to Russia.93 The US Immunity Seizure Act of 1966 and the UK Tribunals and Courts Act 2007 Part 6 confer protection from seizure or attachment on objects in possession of a foreign State sent for exhibition subject to prior notification of their intended exhibition, (p. 363) though the UK Act does not bar museums in the UK or lenders being subject to proceedings, other than specific restitution, in respect of exhibited works of art.
Apart from these accepted categories of immune property State practice in determining when a foreign State’s property is in commercial use and subject to execution remains diverse. Whereas it is relatively easy to determine that a seagoing vessel equipped with guns and manned by personnel of a State’s navy is not to be treated as property in commercial use, it is much more difficult to ascertain the character of funds held in the name of a State. Three particular problems arise—what evidence is available to establish intended commercial use of State property? How are mixed funds held both for commercial and sovereign purposes to be treated? And is the property to be attached to have a connection with the subject matter of the claim which it is sought to satisfy?
4. Proof of use for sovereign purposes
In answer to the first question, the evidence and burden of proof, in the Philippine Embassy case the German court considered that it would constitute interference contrary to international law in matters within the exclusive competence of the sending State for any inquiry, beyond obtaining the Ambassador’s certificate, to be instituted as to the intended use of funds held in a mission’s bank account. A similar position prevails in English law. By s 13(4) of the UK SIA, property in use or intended use for commercial purposes is made subject to attachment; s 17 defines ‘commercial purposes’ to mean ‘purposes of such transactions or activities as are mentioned in section 3(3)’, that is, use in relation to a sale of goods or supply of services, a transaction for provision of finance or a commercial, industrial, professional, or industrial activity. In a case seeking attachment of a diplomatic mission’s account for unpaid surveillance equipment, the English Court of Appeal construed the statutory words ‘intended use for commercial purposes’ as covering commercial transactions entered into by the Ambassador; but the House of Lords declared the current account of a foreign diplomatic mission was held for the sovereign purpose of meeting the expenses of the mission and was not susceptible of anticipatory dissection into the various uses, commercial as well as sovereign, to which monies drawn on it might be used in the future. Only specific earmarking of a fund for present or future commercial use, the House of Lords held, would meet the exception to immunity from execution provided in the SIA for commercial property in use or intended use for commercial purposes (SIA s 13(4)).94 A modification of this strict requirement was permitted in Orascom; a London bank account (not of the diplomatic mission) into which the oil revenues of a foreign State were paid for the purpose of discharging a commercial debt owed to World Bank with the surplus, if any, to be held for general use including sovereign purposes, was treated as an account for commercial purposes and non-immune.95
5. Mixed bank accounts
This English decision also provides the answer to the second question relating to mixed accounts: funds held for both sovereign and commercial purposes in a mission’s bank account remain immune unless a specific account is opened or specific allocation made for a commercial purpose. This ruling has had its critics. Although arguments that UN Security Council Resolutions freezing Iraq’s assets overrode Iraq’s control of its assets and that amounts in an account held in the name of the Iraq diplomatic mission exceeded the (p. 364) reasonable amount required to meet the mission’s expenses were entertained at first by Belgian and French courts, on appeal they were rejected and the presumption that assets of a diplomatic mission were in use or intended use for sovereign purposes was applied and hence immunity from execution granted.96 A US District Court allowed attachment of a mixed diplomatic bank account; exemption of mixed accounts would in the court’s view create a loophole, for any property could be made immune by using it, at one time or other, for some minor public purpose.97 A later court, however, refused attachment of a mixed bank account holding that such attachment would be contrary to the USA’s obligation under Article 25 of the Vienna Convention on Diplomatic Relations to afford full facilities to the diplomatic mission of a sending State; and the US President, even in the face of federal legislation removing immunity from execution of property where judgment was obtained against commercial property of a foreign State designated as a State sponsor of terrorism, has by exercise of his waiver, preserved the immunity of mixed accounts of diplomatic missions in the USA.98
6. The requirement of a connection between the State property to be attached and the subject matter of the proceedings
On the third issue, there is a division in State practice. In addition to being located within the USA and used for commercial activity, the US FSIA requires that the State property ‘is or was used for the commercial activity upon which the claim was based’ (s 1610(a)(2)). This restriction, which is not one the UK SIA requires, serves two purposes; it ensures that execution of State property only takes place in respect of commercial activity which pursuant to an earlier section in the FSIA is within an exception to immunity and for which consequently the US courts have jurisdiction. Secondly it limits the property to satisfy the judgment to resources of the State already committed to the non-immune transaction. This requirement of a connection between the property and the claim restricts considerably the scope of the execution permitted against the property of a foreign State. It is to be noted that the US FSIA only imposes the connection condition when execution is sought against a State, but not as against a State agency or instrumentality. In this event all property used for commercial activity is permitted.99 Where, however, the acts are of a tortious nature as in the exception for personal injuries, there is unlikely to be any prior commitment of resources of the State to those acts, with the consequence that, as the Second Circuit Appeals Court held, the connection requirement in the FSIA ‘create[s] a right without a remedy’.100
In respect of State property but not the property of a State agency, French law imposes a similar requirement of a connection between the property to be attached and the subject matter of the claim, but enlarges it to include prejudgment by ‘saisie conservatoire’.101 As confirmed in Sonatrach ‘the assets of a foreign State are in principle not liable (subject to) seizure, subject to exceptions in particular where they have been allocated for (p. 365) an economic or commercial activity under private law which is at the origin of the title of the attaching debtor’.102 The provisions in the UN Convention dealing with this issue was much debated and Article 19(c) makes post-judgment measures against the property of the State subject to three requirements: the property is to be (i) in use or intended use by the State for other than governmental non-commercial purposes; (ii) the property is to be in the territory of the forum State; and (iii) the property to have a connection with the entity against which the proceeding was directed. This article is accompanied by three annexed Understandings, defining ‘entity’ as one enjoying independent legal personality, ‘property’ as ‘broader than ownership or possession’ and in order to prevent evasion of the State of its liability to meet its judgments, reserves the position under national laws as to ‘piercing the veil’. The sum total of these provisions would seem to broaden the scope of State property over which measures of constraint are allowed beyond the narrow confines found in the US FSIA of State property which is the subject matter of the proceedings.
III. THE OTHER TWO AVOIDANCE TECHNIQUES
A. ACT OF STATE
In accordance with the principles of private international law the applicable law will generally be the law of the State in whose territory the act takes place and the defence of act of State broadly provides an application of those principles to legislative or governmental acts affecting title to private property, moveable or immoveable, located within the territory of another State.
The principle enunciated in Underhill v Hernandez103 that the courts of one State will not sit in judgment on the acts of the government of another done within its territory provides a further ground for imposing restraint on the English court. Thus in the leading case of Luthor v Sagor the English court upheld the validity of an expropriatory decree relating to timber situated in Russia of the newly established Soviet government. The governmental nature of the act performed by a foreign sovereign State was clearly a factor deterring the court from inquiry into the validity of the expropriation, with Scrutton LJ considering it would be ‘a serious breach of international comity’ to postulate that its legislation is ‘contrary to essential principles of justice and morality’.104 Later cases held the rule of recognition of foreign decrees applied to aliens as well as to nationals of the foreign State.105 The act of State defence is subject to exceptions, which are comprehensively covered by the general statement that the English court will not enforce a foreign government act if it is contrary to public policy. It is established that public policy prevents the court from enforcing the penal or fiscal laws of another country106 or discriminatory legislation directed against particular individuals or a particular class of individuals. In Oppenheimer v Cattermole107 a Nazi decree of 1941 which deprived all Jews outside Germany of their German nationality, was declared obiter dicta to be contrary to public policy as legislation in contravention of fundamental human rights. At this point questions of non-justiciability (p. 366) impinge; whether an exception to the act of State rule is permitted depends not merely on the issue being contrary to public policy but also a justiciable issue. More recently, in Kuwait Airways Corp v Iraqi Airways Co (No 2), to be discussed later, the House of Lords have confirmed that the exception to the act of State rule as contravening public policy is not confined to a foreign State’s acts in contravention of fundamental human rights but also extends to and even overrides legislation of a foreign State contrary to fundamental and well-established principles of international law.
The judgment breaks new ground, being ‘the first decision to hold that acts of a foreign State within its territory may be refused recognition because they are contrary to international law’.108 The consequences of that refusal of recognition go beyond a mere declaration of invalidity; the Lords refused to recognize the law which private international law rules identified as the proper law to determine both the tortious nature of the act and the ownership of the aircraft, being the law where the act was committed and the lex situs, the law where the title was transferred.
The judgment in Kuwait Airways, in its application to expropriation in time of armed conflict, raises difficult issues of applicable law relating to property. While there were strong grounds of public policy to give effect to the international condemnation of Iraq’s action in looting the aircraft, the application of public international law, unlike private international law rules, provides little guidance as to the detailed consequences in municipal law on acts held contrary to international law. It may be that the proper law of the whole transaction, once the Iraqi legislation was struck down, was the law of Kuwait. But the Lords’ decision made no reference to the law of Kuwait. The English court, which itself had no substantive connection with the claim—the original taking was from Kuwait, the alleged conversion in Iraq—it would seem, by reference to English law, construed the conduct of IAC (Iraqi Airways Corporation) as tortious and a deprivation of property although Iraqi law held it to be lawful and IAC to be the owner.
Non-justiciability remains today a doctrine of uncertain scope. It may be raised as a plea in proceedings whether or not a foreign State is itself made a party to them, and may be dealt with as a preliminary issue, but being highly fact specific it may not be possible to decide such issues until after disclosure or even until trial. In origin it operated in a manner similar to a plea of immunity barring further inquiry into matters falling within another State’s jurisdiction or for international settlement. In the Buttes Gas case Lord Wilberforce sought to formulate non-justiciability into a distinct doctrine. The Buttes Gas case concerned a defamation action between companies in which, if it were to proceed, in the House of Lords’ view, the English court would have to make a determination on a disputed maritime boundary between foreign States, involving a series of inter-State transactions from 1969 to 1973, of States’ motives and the lawfulness of actions taken by Sharjah, and possibly Iran and the UK. The House of Lords held, there were ‘no judicial or manageable standards by which to judge these issues, or to adopt another phrase, the court would be in judicial no man’s land; the court would be asked to review transactions in which four foreign States were involved, which they had brought to a precarious settlement, after diplomacy, and the use of force’. Lord Wilberforce, who gave the single judgment of the House, after a review of particular rules, and reference to proceedings in (p. 367) US federal courts on the same international incident, declared there to be a general principle, ‘not one of discretion but inherent in the very nature of process’ that ‘There exists in English law a more general principle that the courts will not adjudicate on the transactions of foreign sovereign States’.109
Lord Wilberforce’s ruling that courts must declare certain matters non-justiciable continues to apply to matters of international relations which depend on diplomacy, countermeasures, sanctions and the use of force for their resolution. However, in situations where State practice has been reduced to a generally accepted and certain rule, even though it be a rule of international rather than municipal law, English courts may find sufficient judicial and manageable standards to determine the issues. In the words of Lord Nicholls in Kuwait Airways No 2, the principle of non-justiciability does not ‘mean that the judiciary must shut their eyes to a breach of an established principle of international law committed by one State against another when the breach is plain and indeed acknowledged’. And as Lord Hope in the same case said, ‘restraint is what is needed, not abstention’.110
In Kuwait Airways No 2 the applicant, Kuwait Airways, claimed damages against the IAC for conversion of ten Kuwati aircraft which, following the Iraqi invasion of Kuwait in 1993, had been seized subsequently incorporated into the IAC’s commercial fleet. While accepting that the situation fell within the scope of the act of State doctrine, given that the validity of Iraqi legislation within the territory of Iraq was at issue the Lords took the view that public policy required an exception to be made because Resolution 369, along with Iraq’s seizure of the planes, constituted ‘a gross violation of established rules of international law of fundamental importance’. On the facts there was universal consensus as to its illegality and clear evidence that recognition of its validity would be contrary to the UK’s international obligations. Accordingly, the House of Lords determined that IAC’s acts incorporating the aircraft into its civil airline fleet constituted conversion of assets belonging to KAC.111 In doing so the House of Lords narrowed the scope of the plea of both the act of State doctrine and of non-justiciability.
Recently, however, there have been now two further developments which may narrow the distinction between issues subject to international law and those subject to municipal law: the first is where ‘a foothold in domestic law’ is established so as to permit an English court to make a ruling on international law; and the second is where State immunity barring the exercise of jurisdiction of a national court conflicts with the procedural right of access to court which is now enacted in international and regional human rights conventions to which the UK is a party. Where the facts support one or other of these two developments—that is, where there exists ‘a foothold in domestic law’, or where the denial of jurisdiction amounts to a disproportionate disregard of right of access to court of the private claimant, there will be no dismissal of a claim on the basis of either act of State or non-justiciability.
(p. 368) The first development is illustrated by a number of cases. The first is Abbasi, which concerned a request relating to a British national captured in Afghanistan and detained by the USA as an illegal combatant at Guantánamo Bay in Cuba without charge or legal representation. In that case, while the Court of Appeal was prepared to find, on the facts of the case, that there was a legitimate expectation that the government would provide diplomatic protection and that this could give rise to a justiciable issue, it also concluded that the government enjoyed a wide discretion as to the decision whether and in what manner to grant such protection and that the Court could not order the Secretary of State to make any particular representations since ‘this would have an impact on the conduct of foreign policy’.112 Where, however, the determination of rights, interests or duties under domestic law requires the court to consider issues of international law non-justiciability may provide no bar to the court’s exercise of jurisdiction, as in the case of the AY Bank where the issue was the correct valuation according to principles of English banking law of a debt in an English bank, the sharing of which between the successors to Yugoslavia had been determined by an international treaty.113
A further example of such a possible ‘foothold in domestic law’ is where the facts support an application for the issue of the writ of habeas corpus.114 Thus in Rahmatullah, where the detention of the claimant was believed to be within the control of the UK authorities because of a MOU between the USA and the UK relating to his custody at Bagram Airbase in Afghanistan, it was considered appropriate to issue the writ, with the result that the executive was required to request his return from US custody, which they duly did.115
The second area of development relating to situations in which a claim may not be dismissed on the basis of either act of State or non-justiciability concerns the procedural right of access to justice granted by Article 14 of the 1966 International Convention on Civil and Political Rights 1966116 and by Article 6 of the 1950 European Convention on Human Rights.117 State immunity has been challenged on the grounds that it infringes the right of access to a court in a number of different situations, including alleged torture committed abroad in a prison of the foreign State in Al-Adsani v UK; assault by a soldier (p. 369) of the foreign State while within the territory of the forum State in McElhinney v Ireland; and discrimination on the basis of sex in connection with an appointment to a post in a foreign embassy in Fogarty v UK. In all three cases it was contended that the national courts had wrongly applied immunity to bar access to a national court and its exercise of jurisdiction. Relying on Article 6(1) of the European Convention of Human Rights, the Court in all three cases confirmed its previous ruling that ‘a State could not, without restraint or control by the convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons’. But it distinguished State immunity from immunities imposed by a single municipal law: in Al-Adsani v UK it held that State immunity was a part of the body of relevant rules of international law which the Convention as a human rights treaty must take into account; the Convention ‘cannot be interpreted in a vacuum’ and must ‘so far as possible be construed in harmony with other rules of international law of which it forms part including those relating to the grant of State immunity’. The Court declared:
Sovereign immunity is a concept of international law, developed out of the principle par in parem non habet imperium, by virtue of which one State shall not be subject to the jurisdiction of another State. The court considers that the grant of immunity to a State in civil proceedings pursues the legitimate aim of complying with international law to promote comity and good relations between States through the respect of another State’s sovereignty.118
However, while holding that State immunity could not be struck down as contrary to the right of access to a court, the European Court held it to be always necessary to ensure that the barring of a civil right was not disproportionate to the legitimate aim which State immunity pursues. The Court held that none of the individual claims came within recognized exceptions to State immunity and that the plea on the facts in each case was legitimate and proportionate: the exception for proceedings for personal injuries was generally intended to cover ‘insurable’ business acts of a State such as traffic accidents occurring within the forum State’s territory, and not to torture in a foreign prison; in regard to McElhinney, an act of a visiting member of the armed forces of another country was clearly an act jure imperii; and in regard to Fogarty a claim for discrimination in recruitment of staff to an embassy, as opposed to a claim for compensation for wrongful dismissal, equally fell within a State’s exercise of sovereignty.
Account must now be taken of a thorough and authoritative analysis by the unanimous Court of Appeal in 2013 in Yukos Capital. Rix LJ has now stated that Lord Wilberforce’s principle of non-justiciability has to subsume the act of State doctrine as the ‘paradigm principle’ preventing adjudication on the validity, legality, lawfulness, acceptability, or motives of State actors. However, the Court in formulating the revised plea of act of State/non-justiciability has declared it subject to five qualifications. The Court concludes that the act of State doctrine does not prevent adjudication of ‘the judicial acts of a foreign State’, which ‘are judged by judicial standards, including international standards regarding jurisdiction...’.119
(p. 370) IV. COMPARISON AND EVALUATION OF THE THREE AVOIDANCE TECHNIQUES
From the account given it will be clear that the pleas are related one to the other. Respect for the independence and equality of a foreign State when it is a party to proceedings is achieved by a plea of State immunity which brings the case to a halt. Where the proceeding is between private parties such an immediate halt will only take place if by reason of the non-justiciability of the issues to be determined the court decides that it had no competence to decide them. In cases where the proceedings between private parties progresses to examination of the substantive law, the court may also conclude that it has no judicial or manageable standards by which to decide the issues and declare them non-justiciable; alternatively it may accept a plea of act of State and decide that the recognition of the validity of a foreign State’s governmental act deprives the claim of any basis for its assertion. Thus by accepting a plea of act of State the English court goes some way to endorsing the validity of the act of the foreign State whereas in immunity the court remains neutral, merely deciding that it is not the appropriate forum.
As regards fundamental human rights violations, the choice of an applicable municipal law may be less acute in that for States which have ratified them international human conventions provide a set of rules for the consequences of such violations and, in some instances, international or regional tribunal to which complaints may be referred. But in direct proceedings against a foreign State problems still remain as to the jurisdiction of, and cause of action exercisable by, a national court in respect of such violations committed within the territory of another State, as illustrated by the case of Jones v Minister of Interior for the Kingdom of Saudi Arabia considered further in Section VI of this chapter.
V. THE ARGUMENTS FOR AND AGAINST THE USE OF AVOIDANCE TECHNIQUES
Three main grounds are given for the grant of immunity to foreign States: first, that the national court has no power of enforcement of its judgments against a foreign State; secondly, that the independence and equality of States prevents the exercise of jurisdiction by the courts of one State over the person, acts, and property of another State; and thirdly, that foreign States ought properly to enjoy a like immunity to that accorded by national courts to their own forum State. Additional grounds are found in the territoriality of the jurisdiction of the courts of the receiving State and on reciprocity and international comity.
As shown, the first ground is in part contradicted by modern State practice whereby the forum State authorities execute validly obtained judgments against State property in commercial use and is supported by a general view that States should honour their commercial undertakings. While the third ground provides support for a general application of the rule of law, to impose on another State without its consent the constitutional restraints of municipal law which the forum State accepts, smacks of a new sort of paternal imperialism.
This leaves as the main justification of State immunity and the consequent bar of measures of constraint against such a State and its property, the second ground, the independence and equality of States with the consequent bar of forcible measures of constraint against the State and its property. These attributes of the State were a foundation of the Westphalian system of international law which was built on the recognition and equal (p. 371) status of countries with defined territorial boundaries exercising State power. While the competing interests of States, who differ sharply as to their internal policies, religion or culture, may be met by the use of the avoidance techniques which we have been discussing, such techniques arguably take little account of the interests of the individual or the larger concerns of the international community as a whole. International immunities of States and the pleas of State immunity and non-justiciability based on them have consequently come under attack both as contrary to the administration of justice of national courts and as conferring impunity from violations of international law.
VI. CHALLENGES TO IMMUNITY AND JUDICIAL RESTRAINT
A number of challenges to the pleas of non-justiciability and State immunity have been made on the ground that such pleas have the effect of conferring impunity for violations of international human rights law. As far as the plea of non-justiciability is concerned, it we have shown that English courts have responded to these pressures by providing some form of remedy where, on the facts, ‘a foothold in domestic law’ can be discerned. As regards the bar of State immunity, challenges have been made in a number of ways. One way has been in terms of jus cogens, claiming that a fundamental human right as a peremptory norm of general international law which by reason of its superior status overrides the bar of immunity so as to permit the adjudication of its violation by national courts. Another way has been to assert that universal jurisdiction requires the forum State courts to exercise jurisdiction, while a third has been to rely on the right of access to court pursuant to ECHR Article 6(1), which has already been considered. (See further Wickremasinghe, Ch 13, Section VIII of this book for the conflicting priorities regarding immunity and impunity and their resolution by criminalization of the gravest excesses before international tribunals and also before national courts as regards State officials claiming immunities ratione materiae.)
As far as the challenge based on jus cogens is concerned, it is claimed that because of their superior status, such norms not only to override conflicting treaty obligations but also to trump the bar of State immunity, meaning that their violation can be adjudicated upon by national courts. The extent of such primacy or overriding effect remains uncertain. In Jones v Ministry of Interior for the Kingdom of Saudi Arabia the court refused to set aside a plea of State immunity in a relation to a claim brought by British nationals for alleged acts of torture committed in a Saudi prison on the orders of the Minister of Saudi Arabia.120 This illustrates the continued nature of the conflict between the immunity of the foreign defendant State and pressure to provide national remedies for breaches of international human rights obligations. Nevertheless, Lord Hoffman explained how, in the view of the Supreme Court, no conflict arose: ‘To produce a conflict with state immunity, it is therefore necessary to show that the prohibition on torture has generated an ancillary procedural rule which, by way of exception to State immunity entitles or perhaps requires states to assume civil jurisdiction over other states in cases in which torture is alleged. Such a rule may be desirable...[b]ut contrary to the assertion of the minority in Al-Adsani, it is not entailed by the prohibition of torture’.121 As Lord Bingham in the same (p. 372) case succinctly stated: ‘The International Court of Justice has made plain that breach of a jus cogens norm of international law does not suffice to confer jurisdiction (Democratic Republic of the Congo v Rwanda, ICJ, 3 February 2006, para 64)’.122
Universal jurisdiction has also been proposed as another way to circumvent State immunity in domestic proceedings. A number of multilateral conventions impose an obligation requiring State parties to exercise universal jurisdiction in respect of specific offences defined in the Convention and provide an obligation aut dedere, aut judicare where an alleged offender is within the territory of a State party; that is, that the case is either submitted to the prosecuting authorities or the suspect is extradited to face prosecution elsewhere.123 It has also been claimed that the State has an obligation under customary international law to prosecute on the basis of universal jurisdiction a person present in its territory who has been granted asylum and who has been accused of committing grave international crimes, and that other States would be in breach of their obligations under international law if they attempted to prevent this.124 This, it is said, ‘trumps’ the right of other States to assert immunity in respect of such acts and has the practical effect of entitling, in some cases, the exercise of universal jurisdiction in respect of an individual accused of the jus cogens violation. However, in the Obligation to Extradite or Prosecute case, the International Court of Justice, and individual judges in their separate opinions, failed to give support to there being a customary law obligation to prosecute crimes under international law committed by foreign nationals abroad.125
Over the last 20 years all three forms of challenge to State immunity has received considerable encouragement by the exercise of extraterritorial civil jurisdiction by US courts handing down judgments based on the 1787 Alien Claims Tort Act and the Anti-terrorism and Effective Death Penalty Act (AEDPA) 1996, which gives a civil remedy against State officials in respect of crimes under the law of nations and by the grant of a similar extraterritorial jurisdiction for such crimes against the foreign State itself by amending the FSIA to provide an express exception to immunity in the case of States designated as ‘state sponsors or terrorism’.126 Lately, however, the US Supreme Court has been reining in these expansionary tendencies, confining the reach of the 1787 ATCA to ‘rights already (p. 373) recognized by international law’127 and, most recently and most remarkably, by deciding that the ACTA does not have extraterritorial effect and so only provides a cause of action in respect of acts committed within the jurisdiction of the USA.128
VII. The Exclusionary Procedural Nature of the Plea of State immunity
These challenges to State immunity on the basis of jus cogens, universal jurisdiction and a right of access to court in civil proceedings have further been slowed by the 2012 decision of the International Court of Justice. In the Jurisdictional Immunities case the International Court upheld Germany’s claim that its State immunity had been breached by the Italian courts’ adjudication of claims relating to war damage caused by German armed forces in 1943–5, and also enforcing judgments of Italian and Greek courts in respect of German government property in Italy.
This recent judgment is of great value and requires close study. As has already been seen earlier in this chapter, it contains valuable rulings on numerous aspects of customary international law concerning State immunity: for example, in respect of immunity from adjudication, that the territorial tort exception to State immunity has no application to acts ‘committed by the armed forces and other organs of the State in the conduct of armed conflict’, even if the relevant acts take place on the territory of the forum State; and, in respect of immunity from enforcement, rulings as to the recognition and enforcement by the forum State of foreign judgments given against a foreign State in the national courts of a third States and the immunity from measures of constraint of the German Villa Lagioni as a cultural property.
In excluding the territorial tort exception the Court was careful to confine its ruling to State immunity. It stressed that:
In reaching that conclusion, the Court must emphasize that it is addressing only the immunity of the State itself from the jurisdiction of the courts of other States; the question of whether, and if so to what extent, immunity might apply in criminal proceedings against an official of the State is not in issue in the present case.129
The extent to which the judgment impacts on State officials and their immunity in criminal and civil courts proceedings in national courts will be considered by Wickremasinghe (see Ch 13 of this book) but it should not be overlooked that an official’s immunity is derived from the immunity of the State and it is the State alone which can confer or remove the immunity of its officials.
The 2012 judgment also sets out a general ruling of the nature of State immunity which has wider implications. In response to Germany’s application, Italy responded by supporting her position with three strands of argument: first, that there is no immunity in international law when a State has committed serious violations of international humanitarian law amounting to war crimes and crimes against humanity; second, that there is (p. 374) no State immunity for violations of norms of jus cogens character; third, that the denial of immunity is justified because all other attempts to obtain reparations for the victims had failed.130 The ICJ in deciding against Italy’s claim dismissed all three arguments and also rejected Italy’s contention that the combined effect of the three lines justified an exception to State immunity. In doing so the ICJ based its reasoning on the straightforward exclusionary proposition that the plea of immunity was a procedural plea independent of the issues raised in the Italian claim relating to State responsibility and their determination. The Court stated:
The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful.131
Earlier, the Court had noted:
...that Italy, in response to a question posed by a member of the Court, recognized that those acts had to be characterized as acta jure imperii, notwithstanding that they were unlawful. The Court considers that the terms ‘jure imperii’ and ‘jure gestionis’ do not imply that the acts in question are lawful but refer rather to whether the acts in question fall to be assessed by reference to the law governing the exercise of sovereign power (jus imperii) or the law concerning non-sovereign activities of a State, especially private and commercial activities (jus gestionis). To the extent that this distinction is significant for determining whether or not a State is entitled to immunity from the jurisdiction of another State’s courts in respect of a particular act, it has to be applied before that jurisdiction can be exercised.132
This exclusionary force attributed to the immunity plea as a procedural plea invites close scrutiny. Similar distinctions between procedure and substance have been made in private international law in determining whether the issue is one of remedy or consequential damage, in application of ECHR Article 6(1) which permits no challenge of substantive rules in a State party’s domestic law, and in the ILC Draft Article of State Responsibility between primary rules relating to different obligations and universal secondary rules relating to breach of such obligations, have been applied by national courts, international tribunals and jurists. But over time they have been found to produce inconsistent results at variance with the intended purposes for which they were adopted (Fox and Webb, 2013, Ch 2).
The ICJ did not define the distinction into public acts jure imperii and private acts jure gestionis and the meaning of ‘commercial or private law acts’ remains open to interpretation. It is progressively being expanded in some areas. For example, in the application of the exception for employment contracts the notion that ‘public service’ has been abandoned as a sufficient description to identify a whole sector of employment in the public sector as acts in exercise of sovereign authority; in consequence routine provisions relating to terms of employment and pensions which are found in commercial employment when applied to terms in the public service are now treated as within the exception to immunity for employment contracts. Similarly, where human rights violations can be characterized as occurring in a commercial or employment context, as intimidation sexual harassment, or as causing personal injuries (mental as well as physical) as a result of an act committed on (p. 375) the State’s behalf within the forum territory there may also be potential to bring the resulting complaints within the commercial or tort exceptions and to set aside State immunity.
In addition, although the ECtHR’s requirements of legitimate aim and proportionality was cited in paragraph 96 in support of the ICJ’s judgment, when applied to the bar of immunity it may yet be shown to be subject to application by way of review of the limits of State immunity. It may be, as referred to in dicta by the French Court of Cassation in Reunion Aerienne v Libya, that the ‘legitimate aim and proportionality test’ could provide a route for breaking down the procedural/substantive distinction.133 Thus the ECtHR has ruled that where a question arises as to the hierarchy between the obligations arising under the Human Rights Convention on the one hand and under the UN Charter on the other, ‘for a measure to be regarded as proportionate and as necessary in a democratic society, the possibility of recourse to an alternative measure that would cause less damage to the fundamental right at issue while fulfilling the same aim must be ruled out’.134 An Egyptian national barred for some six years from transiting Swiss territory by Switzerland’s compliance with UN Security Council Resolutions listing him as a person associated with Al-Qaeda, applied this maxim to support a claim for breach of his right to private and family life pursuant to ECHR Article 8 by reason that the implementation of this listing imposed disproportionate restrictions for six years on his freedom of movement. The ECtHR found that the Swiss compliance with the UNSC resolutions did not strike a fair balance between the applicant’s right to the protection of his private and family life, on the one hand, and the legitimate aims of the prevention of crime and the protection of Switzerland’s national security and public safety on the other.135
This decision has relevance to the application of State immunity as a bar to human rights complaints. Just as the ECtHR ruled that reliance on the overriding effect of a Security Council Chapter VII resolution did not exempt Switzerland from seeking alternative ways of compliance to accommodate the applicant’s claim, so a State’s reliance on a plea of State immunity does not exempt it from seeking alternative ways of disposal of a violation of fundamental human rights compatible with respect for the legitimate aim and proportionality of its immunity plea.
In sum, it is suggested that the procedure/substance distinction as applied to the plea of State immunity (Nollkaemper, 2012) may prove less impenetrable than the ICJ Jurisdictional Immunities judgment suggests. It is well to bear in mind that the court itself was careful to restrict the scope of its judgment to ‘the time being’. The ICJ’s use of the procedural exclusionary nature of a plea of State immunity as a resort to internal rules of the structure of making a claim may come to be regarded as a ‘distinction of expedience rather than principle’ (Sloane, 2012, pp 491–2), as a clarification of the correct way to process a (p. 376) foreign State’s claim in order to exclude the disposal of awkward issues of substantive law. As Nollkaemper (2012) writes, it gives rise to questions as to ‘the normative choices that courts inevitably have to make and reflects on the question of whether, and to what extent, the shaping of these connections is properly part of the international judicial function, taking into account problems of legitimacy that may arise when judge-made procedures undo State-made substantive law’.136
At the present day the three avoidance techniques, immunity, act of State, and non-justiciability, by application of the restrictive doctrine of State immunity as now set out in the UN Convention, are subject to close scrutiny. The pendulum continues to swing between preserving the independence of foreign States and their freedom from judicial review by the Court of other States on the one hand, and claims to provide remedies and reparation for violations of international law on the other. As a result, the recognition of ‘a foothold in private law’ as a means of modifying the plea of non-justiciability alternates with the ICJ’s reminder that State immunity is a procedural exclusionary bar to the exercise of domestic jurisdiction.
Much is written about the replacement of the club of sovereign States by an international community representing the interests of all, particularly individuals, yet States remain the main source of authority and implementation of the law in international relations. In consequence their qualities of independence and equality encapsulate three principles which are given effect in the plea of immunity: the principle of domestic jurisdiction by which the organization and legal relations of the State are exclusively or primarily matters for that State to determine; the principle that certain disputes involving States are to be settled on the international plane, not subjecting the State to the compulsory jurisdiction of a municipal court of another State; and the rule of exhaustion of the local remedies which provides an opportunity for the foreign State to settle the dispute in accordance with its own laws. Reduced to its simplest, the justification for use of avoidance techniques, particularly of the plea of immunity, is to allocate in the most appropriate manner suitable to all interests and the ends of justice jurisdiction between the forum and the foreign States.
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1 Cf UK Government green paper ‘Parliamentary Privilege’ 26 April 2012, proposing that it was ‘wrong in principle to deny the courts access to any relevant evidence when the alleged act is serious enough to have been recognised as a criminal offence’ (para 95), except where the alleged criminal offence ‘related closely to the principal reason for the protection of privilege, ie the protection of freedom of speech and debate in parliament’ (para 98).
2 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), Judgment of 3 February 2012, ICJ Reports 2012, para 78. See para 57 for the Court’s reference to the principle of territoriality and ‘the jurisdiction of the State over events and persons within that territory’ which flows from that principle.
3 Spiliada Maritime Corporation v Cansulex Ltd  AC 460;  3 All ER 843 (HL) at 854; and see Collins (Dicey, Morris and Collins) 2012, Ch 12 and Fawcett, Carruthers and North (Cheshire, North and Fawcett), 2008, Chs 13, 15, and 16.
4 The Schooner Exchange v McFaddon (1812) Cranch 116 (US).
5 The release of the Argentinian warship, the Fragata Libertad, after its arrest to enforce an outstanding commercial judgment given by both the New York and Ghana courts indicates this continued enforceability of the international law obligation to respect the immunity of a foreign State’s warship. See ‘ARA Libertad’ (Argentina v Ghana), Provisional Measures, Order 15 December 2012, ITLOS Reports 2012; 27 September 2013, Agreement between Argentina and Ghana settling the dispute.
6 The Parlement Belge (1879–90) 5 Prob Div 197 (CA); a packet boat owned by the King of the Belgians involved in a collision in the port of Dover was held to enjoy State immunity although at the time it was carrying both royal mail and passengers and merchandise for hire.
7 The Cristina  AC 485 (HL) per Lord Atkin at 491. Attempts to confine immunity to the central government of the State, or to exclude departments or agencies which enjoyed separate legal personality (Baccus SRL v Servicio Nacional del Trigo  1 QB 438; 28 ILR 160 (CA)), or to treat consent of the State given in an agreement prior to the dispute as constituting waiver of immunity (Kahan v Pakistan Federation  2 KB 1003; 18 ILR 210 (CA)), were all unsuccessful in the English courts.
8 The Philippine Admiral  AC 373;  1 All ER 78; 64 ILR 90 (PC).
9 Trendtex Trading Corporation v Central Bank of Nigeria  1 QB 529;  1 All ER 881; 64 ILR 111 (CA).
10 A letter of credit is an undertaking given by a bank to pay a certain sum of money on receipt of documents of title and transport relating to a particular consignment of goods; it may be enforced against the bank independently of the solvency or any refusal to pay on the part of the consignor.
11 I Congreso del Partido 1 AC 244;  2 All ER 1064 at 1074; 64 ILR 307 (HL).
12 Empire of Iran Case, 45 ILR 57 at 80 (German Federal Constitutional Court, 30 April 1963).
13 Foreign Sovereign Immunities Act 1976 (USA) (cited as FSIA); State Immunity Act 1978 (UK) (cited as SIA); Foreign States Immunities Act 1985 (Australia); Canadian State Immunity Act 1982; Immunities and Privileges Act 1984 (Malaysia); The Pakistan State Immunity Ordinance 1981; Singapore State Immunity Act 1979; The South African Foreign States Immunities Act 1981; Malawi Immunities and Privileges Act 1984 (No 16 of 1984). Other small common law jurisdictions have enacted similar legislation, eg St Kitts 1979. See also Israel Foreign States Immunity Law 2008; Argentina Immunity of Foreign States from the Jurisdiction of Argentinian Courts 1995.
14 Kenya, Ministry of Defence of Government of UK v Ndegna, Kenya Court of Appeal, 17 March 1983, 103 ILR 235; Ireland, Government of Canada v Employment Appeals Tribunal and Burke  ILRM 325; 95 ILR 467, Irish Supreme Court; New Zealand, Governor of Pitcairn v Sutton  INZLR 426; 104 ILR 508; Fang and Others v Jiang and Others  NZAR 420 (HC); Zimbabwe, Barker McCormac (Private) Ltd v Government of Kenya  CR Comm (Const) 21; 84 ILR 18; Nigeria, Kramer v Government of Kingdom of Belgium; Embassy of Belgium  1 CLRQ 126; 103 ILR 299.
15 See Hafner, Kohen, Breau, 2006 (hereafter referred to as Hafner). This is a collection of the practice of all the member States of the Council of Europe as regards national legislation and judicial decisions relating to State immunity conducted under the supervision of its Committee of Legal Advisers on public international law (CAHDI).
16 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), Judgment of 3 February 2012, ICJ Reports 2012, para 55.
17 The ICJ case Certain Criminal Proceedings in France (Republic of the Congo v France) concerned the immunities of the President and the Minister of the Interior of the Republic of the Congo, but the case was withdrawn at the request of the Republic of the Congo in 2010. See Certain Criminal Proceedings in France (Republic of the Congo v France), Order of 16 November 2010, ICJ Reports 2010, p 635.
18 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), Preliminary Objections and Merits, Judgment, ICJ Reports 2002, p 3.
19 Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment of 20 July 2012.
20 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), Judgment of 3 February 2012. A full account of this judgment will be found in Section VII.
21 Austria, France, Iran, Italy, Japan, Kazakhstan, Lebanon, Norway, Portugal, Romania, Saudi Arabia, Spain, Sweden, Switzerland.
22 Sedelmayer v Russian Federation, Supreme Ct Sweden, 1 July 2011 (see Wrang, 2012); Sedelmayer v Russian Federation, German Federal Supreme Court, Case noVII ZB 8/05 and 9/05, 4 October 2005.
23 Oleynikov v Russia, no 36703/04, Judgment of 14 March 2013, para 70.
24 Law of the People’s Republic of China on Judicial Immunity from Measures of constraint for the property of foreign central banks, adopted on 25 October 2005. See FG Hemisphere Assoc v Congo, HK App. Ct. (10.02.2010),  2 HKLRD 66.
25 Democratic Republic of Congo and others v FG Hemisphere Associates LLC, Hong Kong Court of Final Appeal, 8 June 2011  (FACV 5-7/2010) HKCFA 42.
26 The Home State, as in respect of Crown privileges before UK courts, may enjoy certain privileges before its own national courts.
27 Prosecutor v Charles Taylor, Appeals Chamber, No SCSL–2003–01–I, Judgment of 31 May 2004; 128 ILR 239. Liberia initially challenged this decision, filing an application against Sierra Leone before the International Court of Justice asserting that the Special Court was not a UN organ, nor established as an international criminal court, and that the Special Court ‘cannot impose legal obligations on States that are not parties to the Agreement between Sierra Leone and the United Nations’. However, in 2006 Liberia requested that he be tried by the Special Tribunal and on 30 May 2012 Taylor was convicted of war crimes and supporting the commission of atrocities committed by rebel foces in the civil war in Sierra Leone. Taylor has lodged an appeal against his 50-year imprisonment sentence.
28 UN SC Res 1757 (30 May 2007) and Agreement for the Special Tribunal for Lebanon annexed thereto.
29 This situation arose in the case of the arrest warrant issued for President Al-Bashir of Sudan, which was not a party to the Rome Statute. Criticisms of the ICC Pre-Trial Chamber’s rulings on this matter have resulted inuncertainties regarding the execution of the arrest warrant. See Wickremasinge, Ch 13, Section VIII C of this book.
30 See US FSIA ss 1605(a)(1), 1610(a)(1) and (d)(1).
31 Consent that UK law shall apply is not to be regarded as submission to jurisdiction (SIA s 2(2)).
32 Svenska Petroleum Exploration AB v Government of the Republic of Lithuania & Anor  EWCA Civ 1529;  2 WLR 876, confirming  EWHC 2437 (Comm);  1 All ER 731 (Gloster J).
33 Svenska Petroleum Exploration AB v Lithuania and Another  EWCA Civ 1529;  2 WLR 876 per Moore-Bick LJ at 913.
34 Creighton v Qatar, France Court of Cassation, ch civ.1, 6 July 2000 (see Pingel, 2000). In Orascom Telecom Holding SAE v Republic of Chad & Ors  EWHC 1841 (Comm); 2 Lloyds Rep  397, para 49 Stanley Burnton J refused to construe a foreign State’s submission to arbitration and the signing of terms of reference containing express reference to ICC Rules Article 28(6) to constitute waiver so as to expand the waiver of immunity beyond the commercial purposes exception in SIA s 13(4).
35 Siderman de Blake v Republic of Argentina, 965 F.2d 688 (9th Cir 1992); 103 ILR 454; Princz v Federal Republic of Germany, 26 F.3d 1166 (DC Cir 1994); 103 ILR 594.
36 Princz v Federal Republic of Germany, 26 F.3d 1166 (DC Cir 1994); 103 ILR 594 at 1174.
37 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), Judgment of 3 February 2012, paras 58, 93.
39 This is well illustrated by the analogous case of diplomatic immunity where in Dickinson v Del Solar  KB 376, the court held the company who insured a driver involved in a motor accident liable under the policy to pay damages for injuries caused, notwithstanding that the driver, as secretary of the Peruvian legation, enjoyed diplomatic immunity.
40 However, such prosecutions have been unsuccessful as regards serving senior State officials: SOS Attentat and Castelnau d’Esnault v Qadaffi, Head of State of the State of Libya, France, Court of Cassation, criminal chamber, 13 March 2000, No 141, 124 ILR 508; the court quashed a ruling of the Paris court of appeal that absolute criminal immunity of a serving Head of State was subject to an exception in respect of a terrorist offence of use of explosives causing the destruction of an aircraft in flight and loss of life to French nationals.
42 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), Preliminary Objections and Merits, Judgment, ICJ Reports 2002, p 3. See further Wickremansinge Ch 13, Sections V A and VIII B of this book.
43 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), Judgment of 3 February 2012, para 124.
44 It is worth noting, however, that by submitting to the jurisdiction a State may be deprived of the defences of force majeure and frustration, which private parties may raise, since these defences relate to matters within the control of the State as a contracting party. See C Czarnikow Ltd v Centrala Handlu Zagranicznego ‘Rolimpex’  AC 351.
45 See, for example, Trendtex Trading Corporation v Central Bank of Nigeria  1 QB 529, where such an exercise was with regard to the separate status of the Central Bank of Nigeria. Note that the SIA S 14(4) now provides that the central bank of a State, irrespective of whether it is a department or a separate entity, is to be treated as if it were the State for the purposes of enforcement.
46 La Générale des Carrières et des Mines ("Gécamines") v F.G. Hemisphere Associates LLC  UKPC 27, para 29.
47 Cf Propend Finance Pty v Sing (1997), 111 ILR 611, affirmed in Jones v Ministry of Interior for the Kingdom of Saudi Arabia and Ors  UKHL 26;  1 AC 270, paras 30, 78.
48 Samantar v Yousuf, 130 S. Ct. 2278 (2010) at 2287–9.
49 On remand in the Samantar case, the Fourth Circuit Court of Appeals, controversially, held the defendant was not entitled to immunity in respect of participation in torture and extrajudicial killing by the governing military regime, holding foreign official immunity did not extend to violations of jus cogens, even if the acts were performed in the defendant’s official capacity (Yousuf v Samantar, 699 F.3d 763 (4th Cir 2012)). In March 2013 the defendant petitioned the Supreme Court to consider whether a foreign official’s common law immunity for acts performed on behalf of a foreign State is abrogated if those official acts violate norms of jus cogens. A decision is pending. See further Wickremasinghe, Ch 13, Section VI of this book,
50 The ratifications of Norway and Sweden contain a similar declaration which excludes military activities both during an armed conflict and activities performed in the course of official duties.
51 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), Judgment of 3 February 2012, para 61.
52 Ibid, para 60. Cf the Court’s ruling in respect of immunity from enforcement that the cultural Centre Villa Vigoni ‘intended to promote cultural exchanges between Germany and Italy’, was ‘being used for governmental purposes that are entirely non-commercial and hence for purposes falling within Germany’s sovereign functions’ (ibid, para 119).
53 Thus agreements to which States are the sole parties are excluded from the exception for commercial transactions (SIA s 3(2), UNCSI Article 10(2)(a); contracts of employment with diplomats and agents excluded from the employment exception SIA s. 16(1)(a), UNCSI, Article 11(2)(b); warships and naval auxiliaries excluded from the exception for State ships SIA s 10 and UNCSI Articlce16(2)).
54 Holubek v The Government of United States, Austrian Supreme Court, 10 February 1961, 40 ILR 73.
55 Mol Inc v Peoples Rep of Bangladesh, 736 F.2d 1326 (9th Cir 1994) cert denied 105 S Ct 513.
56 Saudi Arabia v Nelson, 123 L Ed 2d 47 (Sup Ct 1993); 100 ILR 544.
57 Practical Concepts v Republic of Bolivia, 811 F.2d 1543 (DC Cir 1987); 92 ILR 420.
58 Rush-Presbyterian-St Luke’s Medical Center v the Hellenic Republic, 877 F.2d 574 (7th Cir 1989) cert denied 493 US 937; 101 ILR 509.
59 Republic of Argentina v Weltover, 504 US 607(1992); 100 ILR 509.
60 Princz v Federal Republic of Germany, 26 F.3d 1166; (DC Cir 1994); 33 ILM 1483.
61 Orascom Telecom Holding SAE v Republic of Chad & Ors  EWHC 1841 (Comm) 2 Lll Rep  397, citing Lord Diplock in Alcom Ltd v Republic of Colombia  1 AC 580 at 603.
62 I Congreso del Partido  1 AC 244;  2 All ER 1064; 64 ILR 307 (HL).
63 Kuwait Airways Corp v Iraqi Airways Co  3 All ER 694; 103 ILR 340 (HL).
64 In Alcom Ltd v Republic of Colombia the Court of Appeal adopted the first view  3 WLR 906;  1 All ER 1 and the House of Lords the second  AC 580;  2 WLR 750;  2 All ER 6 (HL). See also NML Capital Ltd v The Republic of Argentina  UKSC 31, where the Supreme Court was split on whether the commericial nature of the underlying transation rendered enforcement proceedings in respect of a judgment given in New York ‘commericial’ or ‘sovereign’ in nature.
65 I Congreso del Partido 1 AC 244;  2 All ER 1064 at 1074; 64 ILR 307 (HL).
66 Propend Finance Pty Ltd v Sing, 111 ILR 611, 2 May 1997 (CA).
67 Holland v Lampen-Wolfe  1 WLR 1573;  3 All ER 833; 119 ILR 367 (HL) concerning a complaint of libel contained in a report of a supervising officer of a civilian lecturer engaged to give a course to visiting US forces; Littrell v USA (No 2)  4 All ER 203;  1 WLR 82; 100 ILR 438 (CA) concerning a claim of medical negligence against a service doctor treating an airman on a US base in the UK.
68 These stages being to consider the nature of the transaction, first in the absence and second in the presence of evidence of the purpose of the transaction; third, to take account of such purpose where an agreement of the parties so as to take such purpose into account is proved; and fourth to have regard to purpose if it is relevant in the practice of the forum State, not of its law, in determining the non-commercial character of the transaction.
69 See A/CN.4/L.576, para 60.
70 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), Judgment of 3 February 2012, para 65.
71 McElhinney v Ireland and the UK [GC], no 31253/96, para 38, ECHR 2001-XI, 34 EHRR 13.
72 Prefecture of Voiotia v Federal Republic of Germany, Case No 11/2000, Supreme Court, 4 May 2000, 123 ILR 513. Subsequently, somewhat undermining the authority of the earlier proceedings, a specially convened Greek Constitutional Court competent to decide issues of international law, in a judgment of 17 September 2002, ruled that international law continues to vest foreign States with immunity when sued for acts which take place in the territory of the forum and in which its armed forces were implicated, whether or not these acts violated jus cogens. See Margellos v Federal Republic of Germany, Case No 6/2002, Supreme Court, 17 September 2002, 129 ILR 526.
73 Ferrini v Federal Republic of Germany, Italian Court of Cassation, Judgment No 5044 of 11 March 2004, 128 ILR 659.
74 In Greece enforcement was refused by the Greek Minister of Justice and in Germany by the the German court, and on application for a violation of ECHR Article 6(1) the ECtHR held that Greece, in refusing to authorize enforcement, enjoyed a wide margin of appreciation, particularly in matters of foreign relations, and that Germany’s responsibility was in no way engaged for lack of enforcement of the judgment. Kalogeropoulou v Greece and Germany (Dec), no 59021/00, ECHR 2002-X, 129 ILR 537: see also Distomo Massacre Case, Germany Federal Constitutional Court, 15 February 2006, 135 ILR 185.
75 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), Judgment of 3 February 2012, para 77.
76 NML Capital Ltd v The Republic of Argentina  UKSC 31, para 39.
77 See also ILC Commentary to Article 10(1), para (3) and (4).
78 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), Judgment of 3 February 2012, para 113. Hence Professor Sucharitkul, the ILC’s Special Rapporteur’s has described immunity from execution as ‘the last fortress...the last bastion of State immunity’ (YBILC (1991), vol II (Part two), p 13, Commentary to ILC Draft Articles, Article 18, para 1).
79 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), Preliminary Objections and Merits, Judgment, ICJ Reports 2002, p 3, paras 62–71. In the case concerning Certain Criminal Proceedings in France (Republic of Congo v France) brought in 2003 the applicant State claimed that the initiation of a criminal investigation by the French court without service on the foreign State constituted a violation of a serving Head of State’s immunity. This case was discontinued in 2010. See Certain Criminal Proceedings in France (Republic of the Congo v France), Order of 16 November 2010, ICJ Reports 2010, p 635.
80 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France), Judgment of 4 June 2008, para 196.
81 WL Oltmans v The Republic of Surinam, Netherlands Supreme Court, 28 September 1990 (1992) 23 NYIL 442 at 447.
82 Kingdom of Greece v Julius Bar and Co, Swiss Federal Tribunal, 6 June 1956, 23 ILR 195. See also United Arab Republic v Mrs X, Swiss Federal Tribunal, 10 February 1960, 65 ILR 384.
83 Following the insolvency of the Republic of Argentine creditor, States showed little enthusiasm to adopt the proposals put forward by the International Monetary Fund for a sovereign debt restructuring mechanism (EDREM).
84 The Philippine Embassy Bank Account case, German Federal Constitutional Court, 13 December 1977, 46 BverfGE, 342; 65 ILR 146 at 184.
85 Civil Jurisdiction and Judgments Act 1982 s 31, NML Capital Ltd v The Republic of Argentina  1 Lloyd’s Rep 378, reversed  EWCA Civ 41; appeal allowed  UKSC 31. For registration of a judgment against the UK see SIA Part II ss 18–19; no procedure is available for registration of a judgment given by a court against a State to which that court belongs AIC Ltd v Federal Government of Nigeria and Attorney-General of Federation of Nigeria  EWHC 1357 (QB); 129 ILR 871.
86 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), Judgment of 3 February 2012, paras 118–20.
87 The immune categories may lose their immunity by express consent or specific allocation.
88 The UNGA Ad Hoc Committee decided in view of the uncertainty of the law to exclude aircraft and space objects by stating in Article 3 that the 2004 UN Convention is without prejudice to the immunities enjoyed by a State under international law with respect to aircraft and space objects owned or operated by a State. This would seem to exclude this type of State property from the category of military property declared immune in Article 19(1)(c).
89 FSIA s 1611(b)(2); Legislative History of the Foreign Sovereign Immunities Act 1976, House Report No 94–1487, 94th Cong, 2nd Sess 12 reproduced in (1976) 15 ILM 1398 at 30–31.
90 Law of the People’s Republic of China on Judicial Immunity from Measures of Constraint for the property of foreign central banks adopted on 25 October 2005.
91 AIG Capital Partners Inc & Anor v Kazakhstan (National Bank of Kazakhstan intervening)  EWHC 2239 (Comm);  1ALL ER (Comm) 1;  1 WLR 1420; 129 ILR 589.
92 The ruling by the US Supreme Court in Republic of Austria v Altmann (2004) 541 US 677 that there was no limitation on the retroactive operation of the FSIA, renders applicable the restrictive doctrine including the expropriation exception to State immunity in s 1605(a)(3) to such claims for war damage. In that case Austria sought to rely on the rule of absolute immunity in force prior to 1952 as a bar to a claim by the owner of several Klimt paintings confiscated by the Nazis and exhibited by the Austrian national gallery.
93 RSDIE 14 (2004) 674.
94 Alcom v Republic of Colombia  AC 580;  2 WLR 750;  2 All ER 6 (HL).
95 Orascom Telecom Holding SAE v Republic of Chad & Ors  EWHC 1841 (Comm); 2 Lll Rep  397. To the same effect, EM Ltd v Republic of Argentina 473 F 3d 463 (2d Cir 2007).
96 Leica AG v Central Bank of Iraq, 15 February 2000, Brussels Ct of Appeal, J des trib (2001) 6; Iraq v Vinci Constructions, 4 October 2002, Brussels Ct of Appeal, J des trib (2003) 318; 127 ILR 101; Dumez v Iraq, French Ct of Cassation, 15 July 1999; 27 ILR 144.
97 Birch Shipping Corp v Embassy of United Republic of Tanzania, 507 F.Supp 311 (DDC 1990); 63 ILR 524.
99 US FSIA s 1610(b)(2).
100 Letelier v Republic of Chile, 748 F.2d 790 (2nd Cir 1984) at 798; 63 ILR 378.
101 Islamic Republic of Iran v Eurodif, Court of Appeal, Paris, 21 April 1982, 65 ILR 93, Court of Cassation, 14 March 1984, JDI 1984 598; 77 ILR 513.
102 Société Sonatrach v Migeon, France, Court of Cassation, 1 October 1985 rev crit 1986, 526, (1987) 26 ILM 998; 77 ILR 525.
103 Underhill v Hernandez 168 US 250 (1897).
104 Luther v Sagor  3 KB 532 (CA).
105 In re the Claim of Helbert Wagg & Co Ltd  1 Ch 323;  1 All ER 129.
106 Government of India, Ministry of Defence (Revenue) Division v Taylor  1 All ER 292.
107 Oppenheimer v Cattermole  AC 249;  1 All ER 538.
108 Op cit per Lord Steyn at para 114.
109 Buttes Gas and Oil Co v Hammer  AC 888 at 931–2, 938; 64 ILR 331;  3 All ER 616 at 628. Cf Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia  126 FCR 354 where the Australian High Court held non-justiciable a challenge by an oil company relying on a concession granted by Portugal to the validity of the Seas and Submerged Lands Act 1973 which, in disregard of those concessionary rights, purported to vest Australia’s sovereign rights at international law in the continental shelf in the Commonwealth of Australia.
110 Kuwait Airways Corp v Iraqi Airways Co  UKHL 19, 16 May 2002, paras 26 and 141.
111 Kuwait Airways Corp v Iraqi Airways Co  UKHL 19, 16 May 2002.
112 R (Abbassi) v Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 1598;  UKHRR 76 and see para 107 (ii).
113 AY Bank Ltd (in liquidation) v Bosnia and Herzegovina & Ors  EWHC 830;  2 All ER Comm 463. See also Occidental Exploration & Production Company v Republic of Ecuador  EWCA Civ 1116;  QB 432;  2 WLR 70, para 37, where, with regard to the interpretation of an arbitral award which, in turn, turned on the interpretation of a treaty between the USA and Ecuador, Mance LJ said ‘The case is not concerned with an attempt to invoke at a national legal level a Treaty which operates only at the international level. It concerns a Treaty intended by its signatories to give rise to rights in favour of private investors capable of enforcement, to an extent specified by the Treaty wording, in consensual arbitration against one or other of its signatory States’.
114 The writ of habeas corpus may be issued at the suit or on behalf of any prisoner unlawfully detained so as to bring him (now more often just the facts of the case) before the High Court, and his release ordered; ‘the object of the writ is not to punish previous illegality, but to release from present illegal detention’ (per Scrutton LJ in Ex p. O’Brien  2 KB 361, 391).
115 Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah UKSC 48;  3 WLR 1087. Prior to the Supreme Court hearing the the case on appeal, the USA replied to the UK’s letter, refusing to relinquish control of the detainee to the UK. In the light of this, the majority concluded that, although the Court of Appeal had been correct to issue the writ, the UK had done all it could to comply with the writ and it was now evident that the UK did not have the degree of control upon which its issuance had been premised.
116 This provides that, in the determination of a criminal charge, there is a right to ‘a fair and public hearing by a competent, independent and impartial tribunal established by law’.
117 This provides that ‘in the determination of his civil rights and obligations and of any criminal charge against him’ confers on everyone a right to ‘a fair and public hearing within a reasonable time by an independent and impartial tribunal’.
118 Al-Adsani v UK [GC] no 35763/97, ECHR 2001-XI, 34 EHRR 11, paras 54–5. The other two decisions are Fogarty v UK [GC], no 37112/97, ECHR 2001-XI, 34 EHRR 12 and McElhinney v Ireland and the UK [GC], no 31253/96, ECHR 2001-XI, 34 EHRR 13.
119 Yukos Capital v OJSC Rosneft Oil  3 WLR 1329 at –.
120 Jones v Ministry of Interior for the Kingdom of Saudi Arabia and Ors  UKHL 26;  1 AC 270. This is currently pending before the European Court of Human Rights. See Jones v the UK, no 34356/06 (application lodged 26 July 2006).
122 Ibid, para 24. Had the alleged acts of torture taken placed within the UK, rather than in a Saudi prison, the territorial tort exception in SIA s 5, which is also found in Article 12 of the UN Convention, might have been applicable. Expanding the tort exception to include international crimes causing death or injuries to the person attracted considerable support at the 2009 Naples Session of the Institut de droit international, but was not, however, included in the final Resolution adopted. See Institut De Droit, Naples, 2009 Resolution on International Crimes and Immunities from Jurisdiction of States and their Agents (Rapporteur Lady Fox), ADI vol 73 and see Salmon, 2009.
123 There may be a question concerning which countries may request extradition. See, for example, the US reservation to the UN Convention against Torture which only requires extradition to the State in which the alleged offence occurred, or of which the alleged offender is a national.
124 The basis for this being Article 41 of the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts, which requires States to ‘co-operate to bring to an end through lawful means’ serious breaches arising under a peremptory norm. Cf Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), Judgment of 3 February 2012, Dissenting Opinion of Judge Gaja, para 10.
125 Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment of 20 July 2012, para 54.
126 The State Department has designated Cuba, Iran, Iraq, Libya, North Korea, Syria, and Sudan as terrorist States and also the Federal Republic of Yugoslavia under President Milosevic’s regime. After the invasion of Iraq the designation of Iraq as a State sponsor of terrorism was lifted and all previously blocked Iraqi assets were vested ‘in the Department of the Treasury’ to be used ‘to assist the Iraqi people and to assist in the reconstruction of the Treasury’. Emergency Supplemental Appropriations Act, 16 April 2003 and the Presidential determination of 7 May 2003; Murphy, p 970.
127 Sosa v Alvarez Machain 542 US 692 (2004).
128 Kiobel v Royal Dutch Petroleum Co, 133 S Ct 1659 (2013), in the context of an attempt to extend extraterritorial jurisdiction under the ATCA to companies who in their overseas operations were ‘aiders and abetters’ of human rights violations by foreign States.
129 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), Judgment of 3 February 2012, para 91.
130 Italy also had an arguments based on the territorial tort exception to immunity.
131 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), Judgment of 3 February 2012, para 93.
133 Reunion Aerienne v Libya, Court of Cassation, No. 09-14743, 9 March 2011, Bull. civ., March 2011, No. 49, p 49 where insurers challenged the bar of immunity in order to seek recovery of losses incurred in consequence of the Libyan terrorist bombing of a French registered aircraft. See also Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), Judgment of 3 February 2012, Dissenting Opinion of Judge Gaja.
134 Nada v Switzerland, no 10593/08, Judgment of 12 September 2012, para 183 referring to Ahmed and others v HM Treasury.
135 The Court found that Switzerland ‘could not validly confine itself to relying on the binding nature of Security Council resolutions, but should have persuaded the Court that it had taken—or at least had attempted to take—all possible measures to adapt the sanctions regime to the applicant’s individual situation’ (ibid, para 126) and that this finding ‘dispensed the Court from determining the question of the hierarchy between the obligations of the States arties to the Convention under that instrument, on the one hand, and those arising from the UN Charter, on the other. In the Court’s view, the important point is that the respondent Government have failed to show that they attempted, as far as possible, to harmonize the obligations that they regarded as divergent’ (ibid, para127).