International law, Sixth edition
part of the recognition of the sovereignty of foreign states, as well as an
Download 7.77 Mb. Pdf ko'rish
|
International Law MALCOLM N. SHAW
part of the recognition of the sovereignty of foreign states, as well as an aspect of the legal equality of all states. Sovereign immunity 1 Sovereignty until comparatively recently was regarded as appertaining to a particular individual in a state and not as an abstract manifestation 1 See generally e.g. H. Fox, The Law of State Immunity, Oxford, 2002; A. Dickinson, R. Lindsay and J. P. Loonam, State Immunity: Selected Materials and Commentary, Oxford, 2004; I. Pingel-Lenuzza, Les Immunit´es des ´ Etats en Droit International, Brussels, 1998; J. Br¨ohmer, State Immunity and the Violation of Human Rights, The Hague, 1997; G. M. Badr, 697 698 i n t e r nat i o na l l aw of the existence and power of the state. 2 The sovereign was a definable person, to whom allegiance was due. As an integral part of this mys- tique, the sovereign could not be made subject to the judicial processes of his country. Accordingly, it was only fitting that he could not be sued in foreign courts. The idea of the personal sovereign would undoubtedly have been undermined had courts been able to exercise jurisdiction over foreign sovereigns. This personalisation was gradually replaced by the ab- stract concept of state sovereignty, but the basic mystique remained. In addition, the independence and equality of states made it philosophically as well as practically difficult to permit municipal courts of one coun- try to manifest their power over foreign sovereign states, without their consent. 3 Until recently, the international law relating to sovereign (or state) immunity relied virtually exclusively upon domestic case-law and latterly legislation, although the European Convention on State Immu- nity, 1972 was a notable exception. However, in 2004 the UN adopted the Convention on Jurisdictional Immunities of States and Their Property. 4 State Immunity, The Hague, 1984; S. Sucharitkul, State Immunities and Trading Activities in International Law, Leiden, 1959, and Sucharitkul, ‘Immunities of Foreign States before National Authorities’, 149 HR, 1976, p. 87; I. Sinclair, ‘The Law of Sovereign Immunity: Recent Developments’, 167 HR, 1980, p. 113; A. Aust, ‘The Law of State Immunity’, 53 ICLQ, 2004, p. 255; UN Legislative Series, Materials on Jurisdictional Immunities of States and Their Property, New York, 1982; 10 Netherlands YIL, 1979; J. Candrian, L’Immunit´e des ´ Etats face aux Droits de l’Homme et `a la Protection des Biens Culturels, Zurich, 2005; Droit des Immunit´es et Exigencies du Proc`es ´ Equitable (ed. I. Pingel), Paris, 2004; H. Lauter- pacht, ‘The Problem of Jurisdictional Immunities of Foreign States’, 28 BYIL, 1951, p. 220; R. Higgins, ‘Certain Unresolved Aspects of the Law of State Immunity’, 29 NILR, 1982, p. 265; J. Crawford, ‘International Law of Foreign Sovereigns: Distinguishing Immune Transactions’, 54 BYIL, 1983, p. 75; C. J. Lewis, State and Diplomatic Immunity, 3rd edn, London, 1990; C. H. Schreuer, State Immunity: Some Recent Developments, Cambridge, 1988; Nguyen Quoc Dinh, P. Daillier and A. Pellet, Droit International Public, 7th edn, Paris, 2002, p. 450, and Oppenheim’s International Law (eds. R. Y. Jennings and A. D. Watts), 9th edn, London, 1992, p. 341. See also the cases on sovereign immunity collected in ILR, volumes 63–5; ILA, Report of the Sixtieth Conference, 1982, p. 325 and Report of the Sixty-sixth Conference, 1994, p. 452; Annuaire de l’Institut de Droit International, vol. 64 I, 1991, p. 84, and Report of the International Law Commission, 1991, A/46/10, p. 8. 2 See A. Watts, ‘The Legal Position in International Law of Heads of State, Heads of Govern- ments and Foreign Ministers’, 247 HR, 1994 III, p. 13. 3 See also Ex parte Pinochet (No. 3) [2000] 1 AC 147, 201 (per Lord Browne-Wilkinson) and 268–9 (per Lord Millett); 119 ILR, pp. 152, 221–3. 4 See e.g. E. Denza, ‘The 2005 UN Convention on State Immunity in Perspective’, 55 ICLQ, 2006, p. 395; R. Gardiner, ‘UN Convention on State Immunity: Form and Function’, 55 ICLQ, 2006, p. 407; G. Hafner and L. Lange, ‘La Convention des Nations Unies sur les Immunit´es Jurisdictionnelles des ´Etats et de Leurs Biens’, 50 AFDI, 2004, p. 45, and H. Fox, ‘In Defence of State Immunity: Why the UN Convention on State Immunity is Important’, 55 ICLQ, 2006, p. 399. i m m u n i t i e s f r o m j u r i s d i c t i o n 699 The classic case illustrating the relationship between territorial juris- diction and sovereign immunity is The Schooner Exchange v. McFaddon, 5 decided by the US Supreme Court. Chief Justice Marshall declared that the jurisdiction of a state within its own territory was exclusive and absolute, but it did not encompass foreign sovereigns. He noted that the: perfect equality and absolute independence of sovereigns . . . have given rise to a class of cases 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. 6 Lord Browne-Wilkinson stated in Ex parte Pinochet (No. 3) that, It is a basic principle of international law that one sovereign state (the forum state) does not adjudicate on the conduct of a foreign state. The foreign state is entitled to procedural immunity from the processes of the forum state. This immunity extends to both criminal and civil liability. 7 Lord Millett in Holland v. Lampen-Wolfe put the point as follows: State immunity . . . is a creature of customary international law and derives from the equality of sovereign states. It is not a self-imposed restriction on the jurisdiction of its courts which the United Kingdom has chosen to adopt. It is a limitation imposed from without upon the sovereignty of the United Kingdom itself. 8 Sovereign immunity is closely related to two other legal doctrines, non- justiciability and act of state. Reference has been made earlier to the inter- action between the various principles, 9 but it is worth noting here that the concepts of non-justiciability and act of state posit an area of international activity of states that is simply beyond the competence of the domestic tribunal in its assertion of jurisdiction, for example, that the courts would not adjudicate upon the transactions of foreign sovereign states. 10 On the 5 7 Cranch 116 (1812). 6 Ibid., p. 137. It therefore followed that, ‘national ships of war entering the port of a friendly power open for their reception, are to be considered as exempted by the consent of that power from its jurisdiction’. Such rules would not apply to private ships which are susceptible to foreign jurisdiction abroad. See also Republic of the Philippines v. Pimentel 553 US (2008), US Supreme Court, 12 June 2008, Slip Opinion, pp. 11–12. 7 [2000] 1 AC 147, 201; 119 ILR, p. 152. 8 [2000] 1 WLR 1573, 1588; 119 ILR, p. 367. 9 See above, chapter 4, p. 179. 10 See e.g. Buttes Gas and Oil Co. v. Hammer (No. 3) [1982] AC 888; 64 ILR, p. 332; Buck v. Download 7.77 Mb. Do'stlaringiz bilan baham: |
Ma'lumotlar bazasi mualliflik huquqi bilan himoyalangan ©fayllar.org 2024
ma'muriyatiga murojaat qiling
ma'muriyatiga murojaat qiling