The State Immunity Controversy in International Law

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.

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Author: Ernest K. Bankas

Publisher: Springer Science & Business Media

ISBN: 3540256954

Category: Law

Page: 542

View: 427

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.

The United Nations Convention on Jurisdictional Immunities of States and Their Property

This book provides article-by-article commentary on the text of the Convention, complemented by a small number of cross-cutting chapters highlighting general issues beyond the scope of any single provision, such as the theoretical ...

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Author: Roger O'Keefe

Publisher: OUP Oxford

ISBN: 9780191632204

Category: Law

Page: 512

View: 569

State immunity, the idea that a state, including its individual organs, officials and other emanations, may not be proceeded against in the courts of another state in certain instances, has long been and remains a source of international controversy. Although customary international law no longer recognizes the absolute immunity of states from foreign judicial process, the evolution of the contemporary notion of restrictive state immunity over the past fifty years has been an uncoordinated and contested process, leading to disputes between states. The adoption, in 2004, of the United Nations Convention on Jurisdictional Immunities of States and Their Property has significantly contributed to reaching consensus among states on this fundamental question of international law. This book provides article-by-article commentary on the text of the Convention, complemented by a small number of cross-cutting chapters highlighting general issues beyond the scope of any single provision, such as the theoretical underpinnings of state immunity, the distinction between immunity from suit and immunity from execution, the process leading to the adoption of the Convention, and the general understanding that the Convention does not extend to criminal matters. It presents a systematic analysis of the Convention, taking into account its drafting history, relevant state practice (including the considerable number of national statutes and judicial decisions on state immunity), and any international judicial or arbitral decisions on point.

The Law of State Immunity

The doctrine of state immunity bars a national court from adjudicating or enforcing claims against foreign states.

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Author: Hazel Fox

Publisher: OUP Oxford

ISBN: 9780191669767

Category: Law

Page: 704

View: 780

The doctrine of state immunity bars a national court from adjudicating or enforcing claims against foreign states. This doctrine, the foundation for high-profile national and international decisions such as those in the Pinochet case and the Arrest Warrant cases, has always been controversial. The reasons for the controversy are many and varied. Some argue that state immunity paves the way for state violations of human rights. Others argue that the customary basis for the doctrine is not a sufficient basis for regulation and that codification is the way forward. Furthermore, it can be argued that even when judgments are made in national courts against other states, the doctrine makes enforcement of these decisions impossible. This fully restructured new edition provides a detailed analysis of these issues in a more clear and accessible manner. It provides a nuanced assessment of the development of the doctrine of state immunity, including a general comprehensive overview of the plea of immunity of a foreign state, its characteristics, and its operation as a bar to proceedings in national courts of another state. It includes a coherent history and justification of the plea of state immunity, demonstrating its development from the absolute to the restrictive phase, arguing that state immunity can now be seen to be developing into a third phase which uses immunity allocate adjudicative and enforcement jurisdictions between the foreign and the territorial states. The United Nations Convention on Jurisdictional Immunities of states and their Property is thoroughly assessed. Through a detailed examination of the sources of law and of English and US case law, and a comparative analysis of other types of immunity, the authors explore both the law as it stands, and what it could and should be in years to come.

State Immunity in International Law

... of State Department Suggestion of Immunity, 6 Harvard International Law Club Journal (1964-1965) 203 Bandes, Susan, ... The State Immunity Controversy in International Law: Private Suits against Sovereign States in Domestic Courts, ...

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Author: Xiaodong Yang

Publisher: Cambridge University Press

ISBN: 9780521844017

Category: Law

Page: 761

View: 222

Xiaodong Yang examines the issue of jurisdictional immunities of States and their property in foreign domestic courts.

The Human Rights Challenge to Immunity in International Law

it was possible and natural to regard “State” activities as synonymous with “sovereign” activities'. Yang, State Immunity in International Law, 8. 37. Theodore R. Giuttari, The American Law of Sovereign Immunity: An Analysis of Legal ...

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Author: Selman Özdan

Publisher: Springer Nature

ISBN: 9783030929237

Category: Electronic books

Page: 202

View: 921

This book focuses on the tension between the protection of human rights recognised as jus cogens (peremptory) norms, on the one hand, and the bestowal of immunity on the state and its representatives, on the other, to ascertain how these immunities can be eroded, if not fully abolished, to maintain full protection of jus cogens human rights under international law. The book argues that immunity should not equate to impunity when violations of jus cogens human rights are committed by States, Heads of State, or diplomatic agents. To make the case, the organic structures of the concepts of sovereignty and fundamental human rights are examined. Then, the human rights-based challenge to immunity is presented with respect to State, Head of State and diplomatic immunity, and the transition from a state-centric system to a human-centric system is explored. Jus cogens norms are at the centre of the impunity versus immunity debate. Selman Özdan is Assistant Professor in the School of Law at Ondokuz Mays University, Turkey, where he is Head of Department for Public International Law. Previously, he worked at Erciyes University School of Law. He is a member of the Society of Legal Scholars and Case Western Reserve University Law Alumni Association. His most recent book chapter appeared in The Epistemology of Deceit in a Postdigital Era: Dupery by Design (2021).

The Law of State Immunity

Akande, 'International Law Immunities and the ICC' (2004)98 AJIL 407 Akande, 'The Application of International Law ... The State Immunity Controversy in International Law: Private Suits Against Sovereign States in Domestic Courts (2005) ...

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Author: Hazel Fox

Publisher: OUP Oxford

ISBN: 9780191669750

Category: Law

Page: 704

View: 142

The doctrine of state immunity bars a national court from adjudicating or enforcing claims against foreign states. This doctrine, the foundation for high-profile national and international decisions such as those in the Pinochet case and the Arrest Warrant cases, has always been controversial. The reasons for the controversy are many and varied. Some argue that state immunity paves the way for state violations of human rights. Others argue that the customary basis for the doctrine is not a sufficient basis for regulation and that codification is the way forward. Furthermore, it can be argued that even when judgments are made in national courts against other states, the doctrine makes enforcement of these decisions impossible. This fully restructured new edition provides a detailed analysis of these issues in a more clear and accessible manner. It provides a nuanced assessment of the development of the doctrine of state immunity, including a general comprehensive overview of the plea of immunity of a foreign state, its characteristics, and its operation as a bar to proceedings in national courts of another state. It includes a coherent history and justification of the plea of state immunity, demonstrating its development from the absolute to the restrictive phase, arguing that state immunity can now be seen to be developing into a third phase which uses immunity allocate adjudicative and enforcement jurisdictions between the foreign and the territorial states. The United Nations Convention on Jurisdictional Immunities of states and their Property is thoroughly assessed. Through a detailed examination of the sources of law and of English and US case law, and a comparative analysis of other types of immunity, the authors explore both the law as it stands, and what it could and should be in years to come.

The International Law Commission 1999 2009

Greig 'Forum State Jurisdiction and Sovereign Immunity Under the International Law Commission's Draft Articles' (1989) ... Bankas, The state immunity controversy in international law: Private suits against sovereign states in domestic ...

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Author: Arthur Watts

Publisher: Oxford University Press

ISBN: 9780199578979

Category: Law

Page: 928

View: 898

This book contains the work of the United Nations International Law Commission (ILC) during the period 1999-2009, brining up to date the three-volume series on the work of the Commission edited by Sir Arthur Watts. Each text is accompanied by an introduction, a concise description of the negotiation process and a carefully selected bibliography.

The Oxford Handbook of Jurisdiction in International Law

Upon the arising of a dispute, a state may consequently plead its immunity under international law to prevent ... See e.g. Ernest K. Bankas, The State Immunity Controversy in International Law (Berlin: Springer, 2010), 1–12.

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Author: Stephen Allen

Publisher: Oxford University Press, USA

ISBN: 9780198786146

Category: Law

Page: 624

View: 516

The Oxford Handbook of Jurisdiction in International Law provides an authoritative and comprehensive analysis of the concept of jurisdiction in international law. Jurisdiction plays a fundamental role in international law, limiting the exercise of legal authority over international legal subjects. But despite its importance, the concept has remained, until now, underdeveloped. Discussions of jurisdiction in international law regularly refer to classic heads of jurisdiction based on territoriality or nationality, or use the SS Lotus decision of the Permanent Court of International Justice as a starting point. However, traditional understandings of jurisdiction are facing new challenges. Globalization has increased the need for jurisdiction to be applied extraterritorially, non-State forms of law provide new theoretical challenges and intersections between different forms of jurisdiction have become more intricate. This Handbook provides a necessary re-examination of the concept of jurisdiction in international law through a thematic analysis of its history, its contemporary application, and how it needs to adapt to encompass future developments in international law. It examines some of the most contentious elements of jurisdiction by considering how the concept is being applied in specific substantive and institutional settings.

Sovereign Immunity Under Pressure

In: Ruys T, Angelet N (eds) The Cambridge handbook of immunities and international law. CUP, Cambridge, pp 167–184 Arnold S, ... CUP, Cambridge, pp 125–141 Bankas EK (2005) The state immunity controversy in international law: ...

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Author: Régis Bismuth

Publisher: Springer Nature

ISBN: 9783030877064

Category: Electronic books

Page:

View: 917

This book offers a critical analysis of current challenges and developments of the State immunity regime through three dimensions: it looks at State immunity from a comparative perspective; it discusses the major trends relating to the interplay between State immunity and the protection of human rights as well as counter-terrorism; and it examines the relationship between State immunity and the financial obligations of States. Part I, Sovereign Immunity from a Comparative Perspective: Weak v. Strong Immunity Regimes, deals with the diversity of existing regimes of State immunity at the national level. This part aims to explore different approaches of particular states to sovereign immunity and their general attitude to international law, and attempts to understand why some States favour a weaker State immunity regime by multiplying exceptions or interpreting them broadly, while others continuously support a stronger one and sometimes rely on the doctrine of absolute immunity. Part II, International Customary Law of Sovereign Immunity, Human Rights and Counter-Terrorism, highlights how human rights and counter-terrorism have shaped the law and practice of sovereign immunity. This part specifically discusses the role of national legislators and judges in the development of international law, emerging conflicts between national constitutional norms and the rules of international law concerning State immunity and human rights, and possible ways of their reconciliation. Part III, Sovereign Immunity of States and their Financial Obligations, contributes to on-going debates related to the mixed and complex nature of States' financial obligations. In this part, authors elaborate on perceptions of the underlying public-private law divide, cross influences in public and private international law and their consequences for State immunity, as well as recent trends relating to immunity from execution.--