The State Immunity Controversy in International Law: Private Suits Against Sovereign States in Domestic Courts

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Springer Science & Business Media, Jun 30, 2005 - Law - 542 pages

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

Furthermore, the state never acts as a juridical or natural person and, therefore, in logical terms, its functions cannot be divided into potere politico and persona civile, as a prelude to determine jurisdiction. The said Italian doctrine therefore is ex facie erroneous, and that a simple dichotomy between absolute immunity and restrictive immunity wholly predicated on the nature test alone would not be helpful in promoting justice. Hence, arbitration and comparative dominant theory are suggested instead in the resolution of this elusive problem.

 

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Contents

The Origins of Absolute Immunity of States
1
12 Jean Bodins Philosophy on Sovereignty
2
13 Thomas Hobbes
4
14 The Influence of the Philosophy of Thomas Hobbes
5
15 Claims and Counter Claims
9
16 Final Remarks
11
The Development of Sovereign Immunity
13
22 Justice Marshall and His Groundbreaking Rule
14
69 Some Thoughts on the Persistent Objector Rule
165
610 The Position of African States on State Immunity
168
611 Preceding Observations and Conclusions
171
The ILC Report On Jurisdictional Immunities of States
175
72 Some Preliminary Observations
176
73 Specific Exceptions to Immunity of States
178
74 Principles of State Immunity under the Draft Articles
181
75 Execution against a Foreign State
182

23 Analysis of Chief Justice Marshalls Thesis
15
24 The Influence of Chief Justice Marshalls Decision
21
25 Influence of Marshalls Judgment on English Courts
22
26 Civil Law Countries and Sovereign Immunity
25
27 Russia and the Sovereign Immunity Question
27
28 Is Sovereign Immunity an International Custom?
28
The Privileges and Immunities of States
33
32 The Rational Foundation of State Immunity
37
33 Diplomatic Immunities and State Sovereignty
40
34 Comity of Nations Reciprocity and Coexistence
41
35 Equality of States in the Sphere of International Law
43
36 Beneficiaries of State Immunities
46
361 State ImmunityClaims in English Courts Overview
49
362 State Immunity in American Courts
58
363 State Immunity Issues and the Mixed Courts of Egypt
61
364 State Immunity before South African Courts
63
365 State Immunity in British Commonwealth States
66
Restrictive Immunity in US and UK Courts
69
43 Early Practice in Belgium and Italian Courts
70
44 A Move Towards Restrictive Immunity
72
45 Restrictive Immunity and its Implications
74
46 The Change of Heart in American Practice
77
Current US Law
78
48 Jurisdiction of the Federal Courts
79
410 Commercial Activity under FSIA
80
411 Contacts and Direct Effect Approach
81
412 Arbitration Clauses
82
4121 Expropriation Claims
83
4122 NonCommercial Torts
84
4124 Attachment and Execution
85
413 The Change of Heart in British Practice
86
4131 The State Immunity Act of the United Kingdom 1978
87
4132 Exceptions to Immunity Under the 1978 Act
88
4133 Indirect Impleading
90
4134 Waivers of Immunity and Counterclaims
91
4136 Miscellaneous Considerations
92
414 Difficulties in Applying Restrictive Immunity
94
4141 Difficulties Associated with Political Acts of States
96
4142 Thoughts on Nationalization and Restrictive Immunity
97
Private Suits Against African States in Foreign Courts
101
52 Evidence of Resistance to the Restrictive Rule
104
53 Nigeria before English Courts
105
532 Nigeria before Gentian Courts
109
Part One
111
Part Two
113
54 Uganda before English Courts
115
55 Egypt before Indian Courts
116
56 United Arab Republic before American Courts
117
57 Tunisia before United States Courts
118
58 Zaire before English Courts
119
59 Somali Democratic Republic before American Courts
120
511 Peoples Republic of Congo before Canadian Courts
122
512 Arbitration Default Judgment and Enforcement
123
5122 Tanzania before American Courts
124
5123 The Republic of Guinea before American Courts
127
5124 Is Resistance by African Stales Legally Justified?
128
African States and the Practice of State Immunity
133
621 Some Concrete Examptes of Personal Sovereigns
134
63 The Colonial Era
137
64 English Sovereign Immunity Law in African States
141
65 French Sovereign Immunity Law in African States
148
66 Africa SelfDetermination and International Law
150
67 Reflections on State Practice and Its Implications
153
671 What Do We Mean by State Practice?
154
672 Municipal Courts and Legal Arguments of Defendant States
156
673 Summary of Rules
159
68 Custom and the Concept of Persistent Objector
160
681 Are African States Bound by Restrictive Immunity?
161
76 Personal Injury or Damage to Property
184
77 Effects of Draft Article 22 on Restrictive Immunity
187
78 Third World Influence on the ILC Deliberations
189
781 Disagreement Over the Draft Articles
192
79 The Uncertainty of State Practice
202
State Immunity and Certain Unresolved Problems
209
82 The Problems of Territorial Nexus or Connection
210
83 Problems of the Nature and Purpose Tests
215
84 Mixed Activities of States Involving Private Traders
224
85 The Continuing Problems of Arbitration
230
86 Central Banks and Certain Unsettled Problems
234
87 Some Problems Relating to the Act of State Doctrine
241
88 The Overlap of Act of State and Sovereign Immunity
243
89 Final Remarks
249
State Immunity and Violation of International Law
251
93 The State Recognition and Juridical Equality
253
931 Immunities of Heads of States and Senior State Officials
254
94 Recent Case Law on International Law Crimes
256
941 General Pinochet Before English Courts
257
942 ExPresident Habre before the Courts of Senegal and France
261
943 Colonel Qadaffi before the Courts of France
262
944 A Brief Study of Jus Cogens and the Obligations Erga Omnes
265
95 UK and Ireland before the European Court of Human Rights
268
96 State Immunity and World War Two Damage Claims
270
961 Germany before Greek Courts
271
97 Some Salient Legal Issues before the ICJ
273
972 Congo v the Kingdom of Belgium
279
98 Immunity International Crimes and American Courts
287
981 USSR Before American Courts
288
982 Hugo Princz v Germany before American Courts
289
99 Ammendment to US FSIA of 1976
293
910 Final Remarks
295
UN Draft Convention on State Immunity
301
102 The Concept of the State for Purpose of Immunity
302
103 State Enterprise and Commercial Transactions
303
104 Commercial Character of a Contract or Transaction
305
105 Contracts of Employment
307
106 Measures of Constraint Against The State
308
107 A Perspective Sketch of Possible Future Problems
312
108 Conclusion
314
The Current Law of State Immunity
317
113 The Changing Scope of Sovereign Immunity
319
114 A Lock at Current State Practice
324
1141 Some Evidence of European State Practice
327
115 AsianAfrican Legal Consultative Committee Report
339
116 Further Reflections on the State of the Law
341
117 Embassy Bank Accounts and Foreign Reserves
344
118 Employment Contracts and Restrictive Immunity
347
119 The Future of the Law of Sovereign Immunity
356
Appendix
369
The Schooner Exchange Decision
399
Judge Weiss Concept of Restrictive Immunity 1922
407
The Tate Letter
409
European Convention on State Immunity
411
Foreign Sovereign Immunities Act of 1976
423
State Immunity Act of 1978
431
The Singapore State Immunity Act 1979
443
The Pakistani State Immunity Ordinance 1981
449
South African Foreign States Immunities Act 1981
455
The ILA Montreal Draft Convention
461
Foreign States Immunities Act No 196 of 1985
467
State Immunity Act Chapter S18
485
ILC Draft Articles on Jurisdictional Immunities
491
UN Draft Convention on State Immunity
501
Selected Bibliography
517
Index
535
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