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This chapter deals with the impact of jus cogens on State immunity. It begins by examining the scope of State immunity, then addresses sources of law to establish whether State immunity is really accepted in international law as a norm or principle. The immediate impact and primacy of jus cogens over immunities is considered. The chapter covers immunity of States and their officials, and immunity from execution. As a follow-up of this chapter, the articles by this author in 49 German YbIL (2006) and 18 EJIL (2007) should be consulted.

This chapter evaluates the Court's references to international State immunity law in Al-Adsani v. United Kingdom, Fogarty v. United Kingdom, and McElhinney v Ireland. The three cases concerned a very controversial area of State immunity, namely torture committed outside of the forum State, a tort committed in the forum State, and employment relationships in an embassy. These themes are especially adapted to an analysis of the Court's reception techniques in international law, given that they are part of a sphere of law which is still in a state of flux. It is argued that the Court's approach — guided by pragmatic considerations — remained hermetic and traditional. Facing a conflict between international legal rules, the Court chose to proceed on the basis of domestic law and practice. In this context, its approach was influenced by the margin of appreciation granted to Contracting States, which lead the Court to defer to their position.

Arguments that immunity is unavailable when core human rights norms are violated and the substantive parameters of human rights arguments in favour, and against, immunity rules are in conflict with the obligations of states under international human rights and international criminal law. This chapter examines the rule of state immunity and proposes that there is a need of reformulating the rule in terms of the limits on the essential competence of national courts. Its purpose is to set out the nature and substance of the rule of state immunity so it can identify the ways needed for the assessment and development of arguments on human rights exception to state immunity. The independence and equality of states and the limitation it poses to the role of national courts is also presented.

Developments in international law no longer set limits in regulating state's behaviour against other states. Rather, it now extends to the regulation of the behaviour of states against their citizens within their own borders. Protecting human rights is now believed to be a ‘a matter of priority for the international community’. This chapter studies the progress of rules that recognizes individual rights under international law. The chapter points out how developments in international human rights law can relate to the immunity of states and their officials under international law by focusing on state immunity and the personal immunity of diplomatic agents and foreign heads of state. This chapter also tries to test the coherency of several debates on human rights exception in light of the parameters of the international human rights law and state immunity rules.

Functional immunity of foreign state officials is typically approached as a consequence of the rule of state's immunity. This in turn, creates questions on the scope of the rule of state immunity in relation to the foreign home state. This chapter argues that functional immunity should not be directly related to the immunity of state and the suggestion that state immunity rules determines the position of (former) state officials before foreign national courts is misleading. This chapter provides the nature and substance of the rules determining the competence of national courts over (former) foreign state officials in order to determine the tools necessary for the development of the state's law and policy arguments.

Chapter 3 examines the customary and treaty obligations to prevent international terrorism with a view to identifying both the scope of due diligence required for compliance and any difficulties with assessing non-compliance. It further explores the treaty obligations to extradite or submit terrorist actors to prosecution, and considers the possibility of concurrent individual and State responsibility for terrorism through an examination of the applicability of State immunity to terrorism prosecutions. Finally, Chapter 3 assesses the impact of the self-determination debate on the scope of the international terrorism suppression conventions through an analysis of their exclusion clauses. In particular, Chapter 3 treats the proposed distinction between terrorism and self-determination as a question of regime interaction between humanitarian law and the criminal law enforcement conventions applicable to international terrorism.

This chapter examines the extent to which states can raise the defence of sovereign immunity from suit and execution. It describes three exceptions to immunity from suit that may apply in cases involving cultural property. The first is the ‘commercial exception’ to state immunity, such as that provided by article 10 of the United Nations Convention on State Immunity (UNCSI), or § 1605(a)(2) of the Foreign Sovereign Immunities Act (FSIA) in the United States. The second is the ‘ownership, possession, and use of property’ exception and its limitations (as per article 13 UNCSI, or § 1605(a)(4) FSIA). The third is the ‘expropriation’ exception of § 1605(a)(3) of the FSIA. The chapter discusses the difficulties resulting from the recognition of these limited exceptions. In the area of immunity from execution, it considers the extent to which a ‘cultural heritage’ exemption from measures of constraint is legitimate when claims for the recovery of art based on customary or treaty obligations or for the return of cultural objects taken away in times of war or peace are brought before the courts. It also discusses the contours and feasibility of a ‘cultural human rights’ exception to sovereign and sovereign-property immunity along the lines of the Italian Ferrini jurisprudence.

This chapter summarizes the study of this book. Given the changes that international human rights law and international criminal law made in the international legal order, the chapter concludes that the scope of immunity rules must be reassessed. The rule of functional immunity no longer applies to the allegations and crimes committed against international law. Also, the rule of state immunity and the rules on personal immunity can clash with the fundamental rights of individuals under international law. Distinguishing the three relevant immunity concepts is also crucial to effectively deal with the research.

This chapter deals with attitudes in the United Kingdom to the attachment or execution of state property pursuant to a judicial ruling by a Court. It is divided into two parts: the first covers the attitude and practice of the United Kingdom with regard to the attachment or execution of foreign state property within the former’s jurisdiction. The second comments on the attitude and practice of the United Kingdom government to attachment or execution of its property located within the jurisdiction of foreign states. It is only very recently that the English Courts have moved away from a doctrine of absolute immunity in respect of claims made against foreign sovereigns. The United Kingdom has only just become a party to either of the major international treaties that touch on important aspects of state immunity. The United Kingdom has taken the position — even prior to the passing of the State Immunity Act of 1978 and prior to its stated intention to ratify the European Convention on State Immunity — that it would pay judgment debts.

This chapter discusses three types of immunity in U.S. litigation: the immunity of foreign governments and their agencies and instrumentalities; the immunity of diplomats and consular officials; and the immunity of other foreign officials. Foreign governmental immunity is addressed today the Foreign Sovereign Immunities Act, and both the historical practice predating the Act and its core provisions are considered here. Diplomatic immunity and consular immunity are addressed by multilateral treaties and this chapter describes those treaties and how they have been applied by U.S. courts. The most unsettled category of immunity concerns suits against other foreign government officials, including against sitting and former heads of state. The chapter describes how the lower courts, since the Supreme Court’s 2010 decision in the Samantar case, have been developing a common law of immunity for these cases, while also often giving deference to the views of the executive branch.

This chapter reflects on different modes of how international jus cogens can be received into, or have its effect excluded from, national legal systems. Premised on strict separation between national and international legal reasoning, the chapter addresses various techniques, including incorporation and transformation, and covers the practice of national courts in detail. Specific subject-matters of this practice relate among others to universal jurisdiction and State immunity.

This chapter examines the similarities and differences between the immunities of States and international organizations, as well as their interrelationship with diplomatic immunities. It also points out the pitfalls of analogies among the various immunities. The analogy between the immunities of States and international organizations might have proved promising when international organizations came into existence in the twentieth century, but it is now fraught with pitfalls. In an attempt to restrict the jurisdictional immunity of international organizations, it has been analogized to State immunity, but such an analogy is inapt even though the immunity of international organizations had roots in diplomatic and State immunities. Although the immunity of international organizations originated as “a general principle resting on the questionable analogy of diplomatic immunities; it has become a complex body of rules set forth in detail in conventions, agreements, statutes and regulations.”

The law of state immunity has changed very significantly over the last twenty years. Legal development often occurs because a new international law topic has burst upon the scene, or because pressures have mounted from numerically important states who find the old law unsatisfactory. The evidences of international law to be gleaned from domestic legislation may properly be categorised (to use the terminology of Article 38 of the Statute of the Court) as state practice, or as general principles of law. This chapter explores certain unresolved aspects of the law of state immunity, focusing on Europe (with special emphasis on the United Kingdom) and the United States. These issues will have to be resolved if the attempt at codification, which is now proceeding at the International Law Commission, is to succeed, states this chapter. Among these are the continuing problems associated with the distinction between acta jure imperii and acta jure gestionis, the problem of ‘territorial connection’, and execution of state property.

It was not until the 1970s that the United Kingdom abandoned its longstanding adherence to the doctrine of absolute immunity from suit in respect to claims made against foreign states or governments. The transition from absolute to qualified immunity occurred, first in the common law and then more apprehensively, by statute. The question of execution of state property could arise where there had been a waiver of immunity from jurisdiction, or the entering of unconditional appearance. So far as in rem proceedings are concerned, the very nature of the proceedings somewhat blurs the normal distinction between jurisdiction and execution. In the in personam common law cases that affirmed restrictive immunity, the issue of execution was not clearly addressed. Section 9 of the State Immunity Act of 1978 provides that where a state has agreed in writing to arbitration (either ad hoc or in respect of a future dispute), it will not be immune from preceedings in the courts of the United Kingdom which relate to the arbitration.

This chapter examines doctrinal and practical aspects of relationship between law and interest. There are two principal dimensions: how interest may prompt new legal regulation, and how interest can affect the existing legal regulation. The systemic relevance of interest under the law of State responsibility is also covered. Major emphasis is made on such areas of law as nationality, territory, and law of the sea. Jurisprudence of all major international tribunals is included.

Chapter Four outlines the Rehnquist Court’s New Federalism embrace of dual federalism idealism, focusing on its Tenth Amendment and preemption cases. Beginning with reflections on the Court’s problematic quest for jurisprudential absolutes, the chapter compares the contemporary Tenth Amendment anti-commandeering cases to their predecessors. It then reviews dualist elements in other doctrinal areas of the New Federalism, including expanded state sovereign immunity under the Eleventh Amendment and limited federal power under the Commerce Clause and Section Five of the Fourteenth Amendment. Finally, the chapter explores how the Rehnquist Court’s federalism and preemption cases join to reify greater separation between idealized spheres of state and federal prerogative. It critiques the resulting model for failure to grapple with the values tug of war in contexts of jurisdictional overlap. Through the combined force of formal federalism doctrine and functional preemption decisions, the Rehnquist Court’s approach shifted the baseline from the uncritical overlap of cooperative federalism to a model emphasizing protected zones of exclusive state and federal power. The overarching implication is that the checks and balances of jurisdictional separation warrant protection at the expense of other values. The New Federalism decisions do not reestablish nineteenth century dualism, but they create theoretical tension with the cooperative federalism model that continues to predominate in federalism practice. They idealize the Tenth Amendment as the arbiter of an idealized, bright-line boundary between proper state and national jurisdiction, even at the interjurisdictional margin that belies such clarity.

This chapter introduces the purpose of the book, which is to clarify the conceptual confusion that has bedeviled the proper understanding of both the jurisdictional immunities of States and of international organizations. It also sets out the scope of the book, which is to cover the similarities and dissimilarities between the jurisdictional immunities of States and international organizations. It examines the distinct rules of diplomatic immunity and head-of-State immunity to the extent they have a bearing on the scope of the immunities of international persons that are the main focus of this book. Furthermore, it examines the nature of jurisdictional immunity and lays out the structure of the book.

‘Ordinary’ employment contracts—including those of domestic servants—have been deemed to attract diplomatic immunity because they fall within the scope of diplomatic functions. This chapter highlights the potential for conflict between these forms of immunity and the rights of the employees, and reflects on cases in which personal servants of diplomatic agents have challenged both the existence of immunity and the scope of its application. The chapter examines claims that the exercise of diplomatic immunity might violate the right to a fair trial under Article 6 of the European Convention on Human Rights and the way in which courts have dealt with these issues. The chapter analyses diplomats’ own employment claims and notes that they are usually blocked by the assertion of immunity, but also reflects on more recent developments in which claims had been considered which were incidental to diplomatic employment (eg Nigeria v Ogbonna [2012]).