State Immunity

In the art field the centuries-old concepts of property and state immunity are interwoven in an ambivalent relationship. Immunity rules may constitute a shield for the works of art that have been temporarily sent abroad for exhibition purposes. The obverse of the same coin is that the same rules may thwart the legal actions filed by individuals against foreign states to retrieve art objects lost in the past as a result or in connection with grave violations of human rights and humanitarian law. This article examines this conundrum and argues that the relationship between property rights and immunity rules should be reconceptualised and aligned with the values and priorities of the international community, such as the protection of human rights, the reparation of massive and violent crimes and the respect for cultural heritage.

The benefits of bilateral agreements in regard to international cartels are clear: only a synchronized and international approach will help the developing nations in protecting their markets from unfair competition practices. This article shows the state of anti-cartel policies and legislation in selected jurisdictions, the present state of the coordination of competition policies through promotion and cooperation at the bi-national and international level and highlighted some examples of more publicized anti competition cases. One observation is that more could be done by the developing NIC nations to increase the collaborative ties of their anti competition policies and organs as well as ensure that they fall under the wider umbrella of regional competition regimes such as in the case of South Africa and the European Union. The necessity to safeguard consumer welfare through effective domestic anti competition frameworks was highlighted in the discussed cartel cases. Time will tell whether the emerging economies will be able to balance competition policy and consumer welfare in an effective and progressive way without affecting their trade and investment policies.

International criminal law is characterised by a multiplicity of legal regimes; those comprising the family of domestic law; international criminal tribunal regimes that are susceptible only to the law circumscribed by the Security Council and which can differ from general international law; and international criminal tribunals whose competence is delineated by general international law. Within this variety of legal regimes the concept of immunity does not have uniform application, and conflicts between the regimes as such are obvious. The rejection of immunity ratione personae in the legal regimes composed by international tribunals is an exception to the general rule applicable in the regime of domestic criminal laws. An elaboration of our non-contained system theory attempts to demonstrate that the third party rule (in treaty law and by extension to legal regimes) cannot be sustained as legitimate on many occasions.

Indictment and an arrest warrant against the then-president of the Federal Republic of Yugoslavia (FRY), Slobodan Milošević. 5 However, the defense team representing Taylor was indeed the first one to challenge the Indictment and the arrest warrant on the basis of the argument that a serving head of state may neither be arrested nor surrendered by a foreign state, not even to face trial for charges of international crimes. 6 This is an argument that Milošević never used to challenge the legality of the ICTY arrest warrant.

Whether due to a need to act quickly or a lack of a functioning government with whom to negotiate, the UN often needs to authorize the deployment of peacekeepers and other peace support personnel without the benefit of a Status-of-Forces Agreement (“SOFA”). Unless or until this initial failure to have a SOFA is later cured by the conclusion of a SOFA, the problem arises what immunities UN-mandated peacekeeping forces may enjoy in the absence of a SOFA. UN-mandated peacekeeping operations have traditionally been present in host States with the consent of the State involved. However, the UN Security Council has taken the dramatic step of authorizing the constitution of peacekeeping forces without the consent of the host State. If there is no consent, then State immunity does not apply and we must look to other sources of immunity or comparable protection. These sources can include international humanitarian law, the UN Charter, the UN Immunities Convention, the UN Safety Convention, and customary international law. This paper attempts to assess all of these potential sources of immunities and determine the protections available for UN peacekeepers in the absence of a SOFA.

With Resolution 1638 (2005), the UN Security Council requested the peacekeeping mission in Liberia (UNMIL) to apprehend and detain former President Charles Taylor in the event of his return to Liberia, and to transfer him to the Special Court for Sierra Leone (SCSL). This new task assigned to a UN peacekeeping mission is a significant departure from previous practice. Although there are a few precedents of military troops acting within the framework of UN missions which have been
authorized to arrest war criminals, the conferral of an explicit and clear mandate constitutes a welcome novelty. This resolution is indicative of the trend emerging in
the UN Security Council’s practice to combat impunity by enhancing the rule of law and promoting international criminal justice; in particular, it is notable because it evinces the Security Council’s willingness to strengthen cooperation with international criminal tribunals. The examination of the precedents (UNOSOM II: Second United Nations Operation in Somalia and IFOR/SFOR, the NATO-led multinational force deployed in Bosnia-Herzegovina) is useful for the discussion of
legal issues raised by Resolution 1638. The task of arresting a war criminal can easily be reconciled with the non-coercive nature of UN peacekeeping operations, provided that the consent of all parties involved is secured. Interestingly, UNMIL
troops are not only authorized but also obliged to implement Resolution 1638. After completion of this article, on 29 March 2006, Taylor was arrested while trying to flee Nigeria. He was put on a jet bound for Liberia, where at the airport he was taken into custody by UNMIL peacekeepers and flown by UN helicopter to the SCSL detention facilities at Freetown, Sierra Leone

ZaöRV 76 (2016)

This paper follows up on the effects of Judgment No. 238/2014 by the Italian Constitutional Court. On grounds of both the substantive and procedural legal ambiguity of the ruling, Italian municipal courts have been confronted with the dilemma of either upholding State immunity and complying with the International Court of Justice's judgment or denying State immunity and following the decision of the Constitutional Court. It is condended that the Constitutional Court would have had jurisdiction to carry out a reassessment of customary international law on State immunity without taking for granted the appraisal by the International Court of Justice. On this basis, it could have avoided to resort to the so-called “counter-limits” doctrine for refraining from giving application to international law, finding instead that State immunity for international crimes committed on the territory of the forum State can be denied under both international and domestic constitutional law. Even if this did not amount to full adherence to Article 59 of the ICJ's Statute in procedural terms, it would have meant compliance with the substance of international law at issue. Yet, an attempt to overcome the “Triepelian approach” of the Constitutional Court has recently been made along most original, albeit problematic lines by Italian municipal courts.

Also available at http://verfassungsblog.de/italian-concerns-after-sentenza-2382014-possible-reactions-possible-solutions/, this paper makes some proposals for sorting out from the current deadlock in the relations between Germany and Italy with regard to the dispute over immunity/reparation.

In Judgment 238/2014 the Constitutional Court unhesitatingly gave precedence to the right to jurisdictional protection over compli-ance with international law. At this point, the real issue is how to sort out this situation. It is submitted that the only reasonable alternative to individual access to justice appears to lie in the initiatives that the Italian Government can take, primarily at the international level but possibly also at the domestic level, to protect the rights of the victims.

Transnational competition cases pose numerous challenges— from accessing foreign-based evidence to effectively enforcing decisions or judgments in their aftermath. Furthermore, some of such cases are quite special in that the underlying anticompetitive conduct involves or implicates a foreign State.
This article looks into such cases in order to map out and address issues relating to State involvement or implication in conduct causing competitive harm abroad. The questions examined are: (1) how a State may be entangled in an antitrust case in a foreign jurisdiction?; (2) how such entanglement can be addressed in the adversely affected forum?; and (3) what are the broader considerations relating to such entanglement?
It is argued that competitive harm resulting from commercial dealings should be pursued under competition laws regardless of the character of the parties involved (be it a firm or a foreign State), unless there are overriding reasons justifying abstention (for example, relating to national security, or a State’s strategic interests). States should not enjoy immunity for competitive harm inflicted within other jurisdictions and resulting from their commercial dealings. Agencies and courts in the affected fora should strive to clarify this matter. A clear State’s policy on dealing with inbound competitive harm may also make foreign partners more receptive to concerns about policies which facilitate competitive harm which they may be pursuing. Extraterritorial enforcement in particularly sensitive, or allegedly borderline (across the commercial v sovereign divide) cases should be informed by broader considerations relating to the transfer of wealth resulting from transnational competitive harm and the possibility of adverse reactions of States affected by such enforcement.

The aim of this contribution is to investigate the legal institution of immunity in the context of today’s international law. This latter has gone through significant processes of transformation that, since the beginning of the twentieth century, witnessed a gradual reshaping of the idea of states as “normal types” of subjects of the international society. The role played by non state actors in the management of international affairs has grown, and states are increasingly delegating some of their functions to private operators.
Against this backdrop, this contribution investigates how immunity should be framed with reference to private actors exercising public authority. The analysis will introduce the concept of delegation of public authority, in the context of hybridisation between public and private. It will then focus on the content of the activity as a paradigm to guide the extension of state immunity, through a presumption of non applicability. The analysis of some relevant national case-law, and of a pending case in front of the ECJ will serve as support of the analysis for testing its contentions.

This paper stems from a recent decision by the Indian Supreme Court as to whether the criminal courts of the Indian State of Kerala have jurisdiction over two Italian marines accused of the killing of two Indian fishermen. The analysis is critical of the Court’s reasoning and findings over the two main defences raised by the accused: namely, the lack of jurisdiction of the coastal state on the basis of the law of the sea and in relation to the customary rule on the jurisdictional immunity of military personnel for acts carried out in their line of duty. Finally, this study is also critical of the operational decision by the Indian Supreme Court in providing for the establishment of a specific domestic court deemed by it competent to entertain its jurisdiction over the cause in view of its international nature.

Sommario: 1. Considerazioni preliminari. -2. La domanda riconvenzionale dell'Italia. -3. La difesa italiana e la posizione dei giudici dell'Aja. -4. Segue: la Corte e il primo argomento sull'immunità giurisdizionale: la tort exception. -5. Segue: la Corte e il secondo argomento: la gravità dei crimini e la loro qualificazione come violazioni di ius cogens. -6. Segue: il diritto alla riparazione e la teoria del last resort. -7. Osservazioni critiche. -8. L'esecuzione della sentenza in Italia. Rivista di diritto internazionale privato e processuale -N. 3-2012 1 Cfr. De Visscher, Problèmes d'interprétation judiciaire en droit international public, Paris, 1963, p. 219 ss., spec. p. 221. 2 Cfr. in particolare gli artt. 53 e 64 della convenzione di Vienna sul diritto dei trattati del 23 maggio 1969, ratificata ed eseguita dall'Italia ai sensi della l. 12 febbraio 1974 n. 112, in Gazz. Uff., n. 111 del 30 aprile 1974, suppl. ord., sui quali cfr. Gó mez Robledo, Le ius cogens international : sa genèse, sa nature, ses fonctions, in Recueil des Cours, t. 172, 1981-III, spec. p. 88 ss.

This paper analyzes the case law of the European Court of Human Rights on the relationship between state immunity and foreign state employees' right of access to a court, protected under Article 6 of the European Convention on Human Rights. While acknowledging that the case law of the Strasbourg Court has in many respects contributed to providing employees of foreign states with broader access to the courts of receiving states, the paper submits that the Court's handling of labour cases presents some major flaws. Namely, it is argued that (i) the Court's assessment of the norms of customary international law in the area of state immunity from employment lawsuits is ill-proven and largely unconvincing; (ii) this flawed assessment of custom has had a negative impact on the scope of employees' right of access to a court; and (iii) under the approach followed by the Strasbourg Court, certain categories of state employees may be left without any judicial means of obtaining redress. It appears crucial that the Court addresses such flaws in future cases.

This article explores whether domestic courts can deny jurisdictional immunity of a state as a countermeasure. The article offers a survey of state practice that, according to some scholars, would support this argument, demonstrating that the corresponding practice is scarce, and that relevant domestic legislation denying jurisdictional immunity is not adopted as a countermeasure. Typically, countermeasures are adopted by political organs, which are responsible for the state's international relations and which can assess what is a lawful response to a violation of international law. Domestic courts are not entitled to adopt countermeasures without the involvement of the executive organs that are competent for the international relations of the state. This article demonstrates that a domestic court's denial of sovereign immunity as a countermeasure is unlawful without a prior determination of the government, and it is highly impractical when that determination is provided.

At its thirtieth ordinary session, the AU decided that the United Nations General Assembly (UNGA) be asked to seek an advisory opinion from the International Court of Justice (ICJ) on the question of immunity of head of states and other senior officials, in relation to articles 27 and 98 of the Rome Statute of the International Criminal Court 1998 (Rome Statute) and states parties' obligations under international law. The issue of immunity in the context of state cooperation obligations under the International Criminal Court (ICC) legal regime lies at the heart of the Al-Bashir case, and is a contentious issue that has contributed to the deteriorating relationship between the ICC and the AU. Against the backdrop of the Al-Bashir case and the key issues arising in the case warranting clarification that we identify in this article − the meaning of article 98(1) in the context of head of state immunity, solving potential conflicting treaty obligations to (not) cooperate, waiver of head of state immunity by the UNSC, and hierarchy of sources of international law on the relevant issues − we contend that seeking clarification from the ICJ is indeed a more advantageous and appropriate way forward for African states to pursue than the proposed collective withdrawal from the ICC. To this effect, we also argue for the unsuitability of collective withdrawal as a solution to the AU/African states' concerns around ICC prosecution.

This article comments on the French Supreme Court’s decision, Commisimpex v. République du Congo, dated May 13, 2015, related to the scope of waivers of state immunity from execution. The court decided that an express waiver of immunity was enough to execute on bank accounts of foreign states' diplomatic missions and abandoned its former requirement that a waiver must be both express and specific to execute on such assets. This decision thus marked a surprise reversal by the court of its earlier 2011 and 2013 decisions, which reinforced state immunity from execution, traditionally referred to as “the last bastion of State immunity.” In wake of the Commisimpex decision, this last bastion had fallen in presence of an express waiver of state immunity from execution in France. The author analyzes the reasons for the reversal and explores the consequences of the Commisimpex decision for both states and their creditors, as well as the decision’s potential impact on the famous Creighton jurisprudence, by which the French Supreme Court deemed a state’s agreement to arbitrate to constitute a waiver of its immunity from execution. The Commisimpex decision was a blow to state immunity from execution in France. But will “that which does not kill it make it stronger”? Depending on states’ behavior and the fate of the Creighton jurisprudence, state immunity from execution might become stronger than ever before.

The low ratification rate of the 2004 U.N. Convention on State Immunity shows that states are reluctant to abandon their national regimes in favor of an international one. The execution of arbitral awards remains in the realm of national laws, and state immunity from execution, the last bastion of state immunity, seems to be on the rise rather than in retreat, judging from recent decisions from prominent jurisdictions such as the United Kingdom, France, Belgium and Hong Kong. Recent developments in the United States related to obstacles at the enforcement stage such as forum non conveniens also evidence a tendency toward a stricter standard for enforcement and execution of arbitral awards against sovereigns. In this author’s view, the effort by states to keep state immunity rules within their national realm is a fair counterbalance to the liberalization of private parties’ access to international arbitral tribunals for claims against states and the sharp increase in the number of such disputes.

The recent case law will be presented from a comparative perspective to reveal possibilities of potential forum shopping for state creditors. This article also includes guidance on how to draft effective waivers of immunity with examples of model clauses. In the current context, potential new investors contracting with states are advised to include in their contracts, in addition to an arbitration clause, express and specific waivers of immunity adapted to the new case law.

This article examines the relationship between customary international law and Article 11 of the UN Convention on Jurisdictional Immunities of States and their Property, which applies to claims brought against foreign States by their employees. Although Article 11 has been found by the European Court of Human Rights (ECtHR) to codify customary international law in its entirety, it is argued that neither the travaux nor State practice support this conclusion. Rather, both converge to show that Article 11 provides for a significantly wider immunity than is required by customary international law. The paper then analyzes the impact that Article 11 may have on the future evolution of customary international law by influencing domestic and international judicial practice. This impact appears to be ambivalent. While the ECtHR has referred to Article 11 in order to promote a broader access to courts by State employees, the coalescence of State practice and the provisions of Article 11 may well cause immunity to be extended, at least in countries where the approach of national courts is generally more favorable than Article 11 to the protection of the employees’ rights. The recent Italian case law attests to this risk.

Environment of international trade is shaped by both economic and social factors. Legal framework may influence the trade by both those channels simultaneously by changing contract terms directly and by influencing conduct of parties to a transaction. This is the case of jurisdictional immunities – a legal institution with a potential of threatening the very fundaments of the free market economy: the sanctity of contracts.

Shielding States from private claims abroad had been conceived as a means of protecting national dignity and preventing unjustified intrusion by domestic courts into foreign Sovereign’s internal affairs. Gradual increase of public activity in the economic field produced, however, a perverse effect. In case of international trade an immunity from jurisdiction may prevent a private party from enforcing its contractual rights against a foreign State. In terms of international financial transactions immunity veil prohibits lenders from recovering the debt. Originally this was perceived as a domestic problem of the State concerned (and of the private party thus suffering a loss). This changed, however, due to ever tighter global economic integration. Without entering into details behind the indebtedness crisis in the European Monetary Union , crisis eventually curtailed any doubts as to the “domestic character” of one’s fiscal stability, at least between members of a monetary integration zone. This, paradoxically, may be a counterbalance for the “immunity weakness”, as breach of a contract entails both direct and indirect (investors and the public) consequences for numerous market actors. On the contrary legal instruments that shield States from both their trading partners and lenders may render both areas of public activity even more interdependent.

While considering any changes in this area one shall thus seek: - confidence-building measures, - to limit spillovers, - to stem capital outflow, - and to provide credible tools for crisis management. The question key question of why sovereigns repay their debts is a decisive factor in terms of severity of any confidence crisis.

El 6 de diciembre de 2016, la Corte Internacional de Justicia (CIJ) dictó una orden sobre la solicitud de medidas provisionales presentada por Guinea Ecuatorial (GE) en el asunto denominado Inmunidades y proceso penal (Guinea Ecuatorial c. Francia), por la que dictaminó que Francia debe garantizar la protección de los locales presentados como sede de la misión diplomática de Guinea Ecuatorial en Francia. Asimismo, la CIJ manifestó carecer de jurisdicción prima facie para analizar en esta etapa del procedimiento las cuestiones relacionadas con la inmunidad de jurisdicción penal del Vicepresidente de la República de Guinea Ecuatorial, Sr. Teodoro Nguema Obiang Mangue (en adelante, Obiang). Este caso presenta aristas particulares dado que se trata del primer caso en que un funcionario africano es juzgado por corrupción por tribunales europeos, lo que motivó la presentación de GE ante la CIJ. Al momento de finalizar la redacción de este trabajo la Corte había concluido la etapa oral del proceso en cuanto a las objeciones preliminares planteadas por Francia, que quedaron para la deliberación del tribunal. Este artículo analiza este fallo de la Corte, siguiendo el orden utilizado por el propio tribunal para expedirse en este caso: esto es, en primer lugar se presentan los antecedentes del caso, seguidos por las cuestiones referidas a la jurisdicción prima facie de la Corte, las medidas provisionales y se esbozan algunas conclusiones. Consecuentemente, no se analizan las cuestiones de fondo, ni las objeciones preliminares planteadas por Francia. Las referencias a las cuestiones de jurisdicción de la Corte se limitan a lo tratado con ocasión del dictado de las medidas provisionales que son el objeto de este análisis.

This article considers challenges to state immunity under Article 6 ECHR (the right to a fair trial) in relation to employment disputes. It is argued that the development of the adjudication of these disputes in the ECtHR has been positive for Applicants, with the Court willing to find that state immunity is not a proportionate response in the context of Article 6. However, it is also argued that there are a number of tensions which exist in the adjudication of these disputes, and these tensions are only increasing with the more 'progressive' findings of the Court. Keywords State immunity · Employment · Right to a fair trial

Άρειος Πάγος, the Hellenic Supreme Court, issued last
year its first ruling on the immunity of foreign states
against execution. The judgment follows the path introduced
by the German Constitutional Court in the famous
Philippinische Botschaft case.

The aim of this paper is to analyse to what extent different kinds of immunities may bar legal proceedings against PMSCs end their employees. Firstly, the paper addresses the issue of immunity from criminal jurisdiction. The conclusion is that often immunity of private contractors from criminal jurisdiction does not depend on the application of immunity rules, but stems from the combination of a lack of applicable rules to exercise criminal jurisdiction and a lack of political will to proceed. For civil proceedings, the most relevant obstacle that has prevented courts from exercising their jurisdiction over PMSCs is the ‘political question doctrine’. This doctrine and similar ones, crafted to protect the exercise of governmental functions, should be narrowly interpreted. In particular, there should be no bar on judicial review when human rights violations occur, since governments themselves are bound to ensure respect for human rights and should foster a culture of accountability.

Louwette A, ‘Les Juges Belges Face À L’appareil Judiciaire Des États Étrangers et Aux Mécanismes Quasi-Judiciaires Des Organisations Internationales’ in Anne Lagerwall (ed), Les juges belges face aux actes adoptés par les États étrangers et les organisations internationales (Bruylant, 2016)

The article deals with the final judgment of the Italian Court of Cassation in the criminal case concerning the unlawful killing of some members of the European Community Monitor Mission in Yugoslavia by the Jugoslav National Army, occurred in Podrute in 1991. In accordance with the Constitutional Court judgment n. 238 of 2014, the Cassation allowed civil claims of the families of the victims against the Republic of Serbia and finally held this State liable to pay compensation. However, this conclusion is not fully persuasive. The Cassation settled the civil claims relying only on domestic law grounds, instead of tackling the fundamental issues of international law relevant to the case at hand, as the succession of State responsibility and the direct effect of the rules of international humanitarian law providing for compensation.

The Supreme Court of Canada have already done its judgment on the plea for civil damages arising out of the prison, rape and death of Zahra Kazemi under custody of the Islamic Republic of Iran in 2003, confirming the results given by earlier instances of the Canadian justice, which have decided to maintain the immunity from jurisdiction of the Iranian State despite alleged jus cogens violations and possible occurrence of an exception to sovereign immunity stated in Canada State Immunity Act. The trial illustrates the current trend of maintaining the prerogative of jurisdictional immunity of States in civil matters, even in face of the practice of torture.

Keywords: Kazemi Case. Torture. State Immunity.

The Italian Constitutional Court's judgment no. 238 of 2014 holds that Italy cannot comply with the ICJ's judgment in Germany v. Italy and therefore all domestic measures implementing it are unconstitutional. This is the most spectacular instance of open dualism this side of Medellin.

Las nociones de contramedidas colectivas y de responsabilidad de proteger responden a una serie de principios que pretenden dinamizar una sociedad internacional incapaz de reinventarse ante los nuevos retos del milenio. Avanzar hacia una comunidad de intereses o sociedad institucionalizada que no se quede en la proclamación de bellos principios sustantivos que a la postre quedan enervados o anulados por cuestiones procesales de carácter secundario. No obstante, si en su aplicación se impone el unilateralismo, una práctica selectiva o una política de fuerza, el avance pretendido significará un viaje al pasado abundando en la descentralización del orden internacional. Tales principios demandan una normativa precisa y clara que reglamente los objetivos, las autoridades competentes y los procedimientos y reglas de actuación. Se requiere que principios constitucionales cuenten con un orden constitucional mínimamente estructurado: una constitucionalización del Derecho internacional

This study analyses the decision of the Turkish Competition Authority in which it has granted total immunity to SunExpress and reduced the amount of fine of Condor by 50 percent, after SunExpress applied for leniency and disclosed the existence of the agreements it signed with Condor pursuant to which Condor undertook to determine the seat-only ticket prices of SunExpress.